Van Nuys Publishing Co.

National Labor Relations Board - Board Decisions

Sep 14, 1967

167 N.L.R.B. 415 (N.L.R.B. 1967)

VAN NUYS PUBLISHING CO.
Van Nuys Publishing Company and Keith R.
Wagner and Richard Lee Smith. Cases
31-CA-463 and 31-CA-553
September 14, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On May 25, 1967, Trial Examiner William E.
Spencer issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial Ex-
aminer 's Decision. The Trial Examiner also found
that the Respondent had not engaged in other unfair
labor practices alleged in the complaint. Thereafter,
the Respondent filed exceptions to the Trial Ex-
aminer's Decision together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case 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 these cases, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only to the ex-
tent consistent with this Decision and Order.
The Respondent excepts, among other things, to
the Trial Examiner's finding that the Respondent
discharged Keith Wagner and Wayne Groves
because of their union activities in violation of Sec-
tion 8(a)(3) of the Act. The Respondent contends
that these individuals were discharged for miscon-
duct in the course of their employment and not
because of their union activities.
The record shows the following facts:
On the night of July 20, 1966, Groves was in-
structed to use a truck rented by the Respondent
from Sam's-U-Drive in "spotting" newspapers
along his route.' While maneuvering the truck into
a loading position, Groves collided with a gatepost
in the Respondent's driveway, causing damage to
a mirror frame and to the door to which it was at-
tached. He did not report this accident. Shortly
thereafter, in the early morning of July 21, 1966,
Wagner used the same truck to spot newspapers
along his route and on returning also became in-
volved in a collision, causing damage to a fender.
Wagner did not report this accident on his arrival.
' Spotting is the dropping off of bundles of newspapers at designated
spots along an assigned route where they are picked up by newsboys who
deliver them to customers
415
Thereafter, Wagner returned the vehicle to
Sam's-U-Drive, followed by Groves who drove a
company pickup truck for the purpose of transport-
ing Wagner back to the Respondent's plant. Neither
employee reported the damage immediately to the
rental office. However, it was discovered when an
employee of the rental company inspected the vehi-
cle. He reported the damage to the rental office.
Wagner was then questioned by a representative of
the rental company concerning the damage. Wagner
then admitted that he and Groves had damaged the
vehicle, and signed an invoice noting this damage.
Neither employee reported the incident upon return
to the Respondent's plant, allegedly because no su-
pervisory personnel to whom such a report could be
made were then available. Both employees returned
to their homes.
On the evening of July 21, the accidents were re-
ported to Jack Allen, Respondent's dock foreman,
by Floyd Kotowski, a dockworker who had
originally signed for and received the rented vehi-
cle.' He had observed the damage and had pre-
viously discussed the matter with Wagner and
Groves. Kotowski testified that in reporting the
incident he was concerned about his own liability
as the individual signing for the rented vehicle.
On the following day, July 22, Robert Meneley,
Respondent's comptroller, telephoned Allen for in-
formation after receiving a bill from Sam's-U-Drive
which included an amount for damage sustained by
the rented vehicle. Allen advised Meneley that he
did not have complete information as neither driver
had apparently submitted accident reports.
Meneley and Allen both testified that Allen also
stated his intention to discharge both drivers if on
investigation he found out that they had not filed ac-
cident reports as required by the Respondent. They
further testified that Meneley cautioned Allen
against discharging Wagner and Groves until they
had made a complete report to the Respondent's in-
surance carrier.
On the night of July 22, or the early morning of
July 23, when Groves next reported for work,
Allen questioned him about the damage done to the
truck. Groves admitted his responsibility and was
requested by Allen to file an accident report with
the Respondent's insurance carrier. Allen talked
with Wagner shortly thereafter and in the course of
their conversation Wagner admitted responsibility
for the damage he did to the truck. Allen also
directed Wagner to report the accident to the
Respondent's insurance carrier.
On Monday, July 24, both employees filed ac-
cident reports with the Respondent's insurance car-
rier and, after completing their deliveries on the
morning of July 25, they were discharged by Allen
who told them mat he was taking this action
z There is no evidence in we record to support the Trial Examiner's
conclusion that Kotowski was employed by Respondent as a foreman
167 NLRB No. 55
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of their failure to report the accidents to the
Respondent.
No one contends that Groves and Wagner did not
have an affirmative duty to report the accidents
when they occurred. Further, no explanation is of-
fered by either employee for their failure to report
these accidents to the Respondent immediately
after they occurred, nor do they explain their failure
to call the attention of the rental company to these
accidents prior to their being questioned. The Trial
Examiner finds, however, that the reason assigned
by the Respondent for the discharge of these em-
ployees is pretexual and that the employees were,
in fact, discharged because of their union activities.
We do not agree.
In order to sustain a finding that the Respondent
discriminatorily discharged Wagner and Groves,
the record must support a finding that the Respond-
ent took such action because it either knew or at
least suspected their participation in protected ac-
tivity. Proof of such motive, however, cannot be
presumed merely by establishing the existence of a
union animus on the part of a company.3
With respect to the activities of Groves and
Wagner, the record shows only that these in-
dividuals signed union cards during an organiza-
tional campaign which took place away from the
Respondent's premises. Shortly thereafter, and ap-
proximately 1 month before they were discharged,
Allen did question these men concerning the Union
then engaged in organizational activities, asked
them if they had furnished the Union a list of em-
ployees' names and addresses, and threatened to
discharge anyone who was involved in union af-
fairs. Both men denied any knowledge of the
Union's activities, denied rendering any assistance
to the Union, and did not admit to having signed
union cards.
We are unable to agree with the Trial Examiner's
conclusion that the "reasons advanced by Allen for
the Wagner and Groves discharges were largely
pretextuous and are not realistically separable from
a strong antiunion motivation." To the contrary, we
find, on the basis of the entire record, that the
General Counsel has not proved by a preponde-
rance of the evidence that the Respondent's ex-
pressed reason for the discharges of Wagner and
Groves was a pretext. Accordingly, we shall
dismiss the allegations of the complaint that the
Respondent had discharged employees Wagner and
Groves in violation of Section 8(a)(3) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent. Van Nuys Publishing Company, Van Nuys,
California, its officers, agents, successors, and as-
signs , shall:
1. Cease and desist from:
(a) Interrogating employees concerning their
union activities or threatening them with discharge
for engaging in union activities.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the exer-
cise of the rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be affected
by an agreement requiring membership in a labor
organization, as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act.
(a) Post at its place of business in Van Nuys,
California, copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 31, after
being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt thereof, and be main-
tained 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 notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 31,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed, insofar as it alleges that
the Respondent violated Section 8(a)(3) of the Act.
S Handley Manufacturing Corporation, 108 NLRB 1641, 1650
4 In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words " a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT interrogate employees con-
cerning their union activities or threaten them
with discharge for engaging in union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in Section
7 of the Act, except to the extent that such
rights may be affected by an agreement requir-
ing membership in a labor organization, as
authorized in Section 8(a)(3) of the Act, as
VAN NUYS PUBLISHING CO. 417
modified by the Labor-Management Reporting
and Disclosure Act of 1959.
VAN Nuys PUBLISHING
COMPANY
(Employer)
II. THE LABOR ORGANIZATION INVOLVED
Package and General Utility Local No. 396, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, hereinafter
called the Union, is a labor organization within the mean-
ing of the Act.
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 215 W. 7th Street, 10th Floor, Bartlett
Building, Los Angeles, California 90014,
Telephone 688-5801.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM E. SPENCER, Trial Examiner: Upon charges
filed by Keith Wagner on August 4, 1966, and by Richard
Lee Smith on November 4, 1966, the General Counsel of
the National Labor Relations Board, the latter hereinafter
called the Board, issued his complaint dated December
13, 1966, against Van Nuys Publishing Company, the
Respondent herein, alleging that the Respondent violated
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, hereinafter called the Act, by discharg-
ing and thereafter refusing to reinstate its employees,
Keith Wagner, Richard Lee Smith, and Wayne Groves,
because of their union and concerted activities, and en-
gaged in other conduct independently violative of Section
8(a)(1) of the Act. The Respondent in its timely filed
answer denied that it had engaged in the alleged unfair
labor practices.
Pursuant to notice a hearing on the General Counsel's
complaint, with all parties participating, was held by me
in Los Angeles, California, on February 23 and 24, 1967.
On the basis of the entire record in this proceeding, my
observation of witnesses appearing before me, and con-
sideration of the briefs filed with me by the General
Counsel and the Respondent, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a California corporation with its principal
office and place of business located in Van Nuys, Califor-
nia, is engaged in the publication and distribution of a
newspaper in which nationally sold products are adver-
tised. During a material period the Respondent's gross in-
come from the operation of its newspaper exceeded
$200,000, and in the course and conduct of its business
operations, it received newsprint valued in excess of
$50,000 from sources located outside the State of Califor-
nia.
' These findings are based on Burner's testimony , for the most part not
specifically denied , though Allen 's testimony on conversation between
himself and Burner differ in some respects on what was said. I found Al-
III. THE UNFAIR LABOR PRACTICES
A. Organizational History
On May 22, 1966, an organizational meeting of inde-
pendent driver-spotters , or owner-operators , occurred at
the home of employee Lennon Nelson , and union
authorization cards were signed . On June 1 , the Union
filed a representation petition , but it was subsequently
withdrawn . On July 20, the Union filed its second peti-
tion , and a hearing thereon was held on August 25. On
September 16, the Board 's Regional Director issued his
decision dismissing the petition on the ground that the
unit sought by the petitioner was inappropriate.
B. Interference, Restraint, and Coercion
Evidence of independent 8(a)(1) violations was limited
to alleged statements of Jack Allen, Respondent's dock
foreman. With authority responsibly to direct the activi-
ties of rank-and-file employees and to hire and fire, there
is no question that Allen is a supervisor within the mean-
ing of the Act and that the Respondent is bound by his
statements and conduct as found herein.
On the day following the organizational meeting at em-
ployee Nelson's home he told employee Clarence Bomer,
who had participated in that meeting, that the employees
had chosen the wrong time to "go union." When the
Union withdrew its first representation petition, Allen
taunted Bomer, saying, "Uh huh, now, where is your
power now?" During this same conversation, Bomer told
Allen that he knew the minute he signed a union card he
was writing his own dismissal . According to Bomer,
Allen replied, "Well, you win some, and you lose some."
Further according to Bomer, "During the same conversa-
tion he [Allen] said, as much as he had done for Lennon
Nelson, that he was definitely going to fire him." On Oc-
tober 24, after the Union's second petition had been
dismissed, and on an occasion when Allen discharged an
employee, Richard Lee Smith, Allen told Bomer, in a
loud voice, ". . . the Union has failed ... You are s - t out
of luck for a year."i
Shortly after the Union filed its June 1 representation
petition , Allen asked Keith Wagner, a driver, if he had
anything to do with the Union, and said that if he found
Wagner or anyone else had anything to do with the Union
he would fire them. A few days later Allen told Wagner
that employees Bomer , Hawkins , and Nelson had "a lot
to do with the Union" and they would be the first to go,
that if Bomer did "anything wrong" he would go. On a
later occasion, prior to June 17, Allen told Wagner that
the Union would not be able to come into the plant if he,
Allen, had anything to do with it, and that he had ways of
getting rid of anybody that had anything to do with the
Union. During none of these conversations did Wagner
reveal that he had joined the Union although he had, in
fact, signed an authorization card.
len's version of the context in which he , according to Bomer, said "you
win some, and you lose some" convincing but otherwise credit Bomer.
418 DECISIONS OF NATIONAL
In early June , Allen asked Wayne Groves, a driver, if
he knew anything about the Union, who was in the
Union, if employees Nelson, Hawkins, or Smith had
anything to do with the Union, or, together with Bomer
were in the Union, and when Groves gave a negative
answer said that he knew they were trying to get the
Union in, that if anyone signed a union card they would
be let go, or he would find ways to get rid of them . Allen,
in talking to Groves, referred to "Brother Bomer" and
"Brother Nelson ." In June, Nelson and Hawkins left
Respondent 's employ but there is no support for
testimony that they were discharged . On a later date
Allen asked Groves about the scheduled representation
election and whether, with Nelson and Hawkins gone,
they really had a chance . Groves replied that he did not
know.
After Wagner returned from a summer training camp
on July 2, Allen asked him if he had gotten a list of the
drivers to be used by the Union in organizational activi-
ties; Wagner said he had not ; Allen said he had heard that
Wagner had gotten such a list and if he found out he had,
he would be fired; that a lot of changes had been made
while Wagner was in camp , and he had gotten rid of
several people on account of the Union; that Wagner
shouldn 't think that he, Allen, couldn 't get rid of him if he
found out Wagner had anything to do with the Union.
Allen also asked Groves if he had taken a list of names
and telephone numbers from Allen's desk and given them
to a union representative, and when Groves replied in the
negative , asked him if Wagner had taken any names and
telephone numbers. Groves again replied in the negative.
The foregoing findings are based on the testimony of
Wagner and Groves, not specifically denied by Allen.
The Respondent in its brief argues that Groves and
Wagner being mistaken or untruthful in other portions of
their testimony are not properly credited on statements
they attributed to Allen; that during the period when the
alleged statements were made Wagner and Groves were
not, to Allen' s knowledge , included in the bargaining unit
sought by the Union, and were not known to Allen as
being affiliated with or favoring the Union, and therefore
they should not be held to have been coerced by any
threats made by Allen.
It is true, I think , that Wagner and Groves were not ac-
curate in all their testimony as, for example , indicating
that Nelson and Hawkins were discharged when ap-
parently they quit , and perhaps not wholly truthful in
their respective accounts of their discharges - to be
discussed hereinafter . I am not persuaded , however, that
I should discredit their undisputed testimony when Allen
was available to testify and did testify as to other matters,
and threats did not lose their force and character as
threats even were they directed to employees outside the
proposed bargaining unit , and were not, in all instances,
effectuated . Also, though admittedly some statements at-
tributed to Allen, particularly in the testimony of Bomer,
occurred during discussions pro and con the Union in
which Allen freely participated, such discussions did not
privilege Allen, a supervisor with authority to hire and
fire and one who exercised such authority, to engage in
the type of interrogations and coercive statements related
in the testimony of the three employees as set forth
above.
I find that the Respondent , by its unlawful interroga-
tion of employees concerning their union affiliation and
LABOR RELATIONS BOARD
activities , and the union affiliation and activities of fellow
employees ; and by threats of discharge directed at em-
ployees engaging in union activities , interfered with,
restrained , and coerced its employees in violation of Sec-
tion 8 (a)(1) of the Act.
C. The Discharges of Keith Wagner and Wayne Groves
Wagner was employed by Respondent in February
1964, Groves in September 1965. Both started as
dockworkers and later drove Respondent 's own trucks in
spotting papers for home delivery by the route carriers.
On July 20, 1966, Groves, according to his testimony,
was instructed to use a truck rented from Sam's-U-Drive
for use on his delivery route . While making his approach
to Respondent 's dock , Groves bent the mirror frame of
the rented truck on the gate post and appears to have
dented one of the front doors. When Floyd Kotowski, the
dock foreman , came by Groves told him what had hap-
pened and Kotowski helped him repair some of the
damage to the mirror frame. Wagner used the same rental
truck for spotting papers on his route that evening and on
returning the truck early the next morning scraped the
right fender . Wagner returned the truck to Sam's-U-
Drive and was accompanied by Groves in a company
pickup truck in order to provide conveyance back to the
plant . This was customary procedure.
There were two women on duty at Sam's-U-Drive
when Wagner returned the rental truck , a Louis Brooks,
whose duties were checking in and out of equipment, and
Ann Freeman , office manager . On discovery that some
damage had been done to the truck, Brooks questioned
Wagner and Wagner , according to his testimony, ad-
mitted that he had scraped the fender. He told Brooks
that he did not know who had damaged the mirror but,
again according to his testimony, he went out to the
pickup truck and asked Groves if he knew about this
damage and Groves told him that he, Groves, was
responsible for this damage. Wagner then returned to the
office and gave Brooks the information she had
requested . According to him he asked that a report on the
damage be made to Allen . He signed the slip furnished by
Brooks admitting damage to the truck. Wagner and
Groves then returned to the plant . Neither Allen nor
Porter, the night watchman , was at the plant at that hour
and Wagner and Groves punched out without reporting
on damage to the rented truck.
On the following Saturday , July 23, when Groves re-
ported for work Allen questioned him about the damage
done the rental truck.2 Groves admitted that he was
responsible for damage to the mirror. Allen instructed
him to fill out an accident report with the insurance com-
pany. When Wagner checked in on the same date, Allen
asked him why he had not reported on the damage to the
rental truck , and Wagner replied that he had reported to
the clerk at Sam 's-U-Drive and that she had said she
would call Allen in the matter . Wagner, also, was in-
structed to make out a report to Respondent 's insurance
company. On the following Monday, July 25, Groves and
Wagner made the required reports to the insurance com-
pany. Both worked that day. After punching out, Groves
and Wagner were discharged . They were interviewed in-
dividually by Allen and told that they were being
discharged for not making the required reports to Allen
on the damage to the rental truck . Wagner explained that
2 Fnday, July 22, was not a working day for Wagner and Groves
VAN NUYS PUBLISHING CO.
in reporting the damage to Sam 's-U-Drive he understood
that Allen would be contacted in the matter, and both he
and Groves thought that this was all that was required in
making a report . They also called attention to the un-
disputed fact that neither Allen nor the night watchmen
were on duty when they returned to the plant after return-
ing the rental truck , and therefore there was no one to re-
port to orally at the plant.
Allen testified that all drivers except owner -drivers'
were instructed to report accidents and were given kits
containing all the various forms required to be filled in at
the time the accidents occurred . Admittedly, such kits
were in the glove compartment of company owned trucks
but no such kit was in the rental truck used by Wagner
and Groves on the occasion in question . It is assumed
however that they were familiar with the forms supplied
for reporting accidents and presumably it was possible for
them to have obtained such forms and to have executed
them in the approved manner . Groves testified , however,
that he did not understand that these forms were required
in minor damage to a truck such as occurred here.
The envelope containing the accident report kit bears
this text:
WHAT TO DO
IN CASE OF AN ACCIDENT
1. Stop at once and investigate.
2. Care for the injured by obtaining competent
first aid and calling doctor or hospital if necessary.
3. List all possible witnesses and obtain signed
witness cards whenever possible.
4. Complete preliminary report at scene of ac-
cident.
5. Report at once to your supervisor - by
telephone or in person.
Contained inside the envelope are witness cards, to be
filled out at the location of the accident, a preliminary ac-
cident report form with space provided for specifying
damage to property to others and listing the injured, etc.
Allen's version of the discharge action was that he first
learned of the damage to the truck from Foreman
Kotowski on the evening of July 21 and that he then
checked and found that no accident report had been filed;
that on the following day he received a call from the Com-
pany's comptroller, Robert Meneley, stating that he had
received a bill from Sam's-U-Drive for damage to a
rented vehicle and inquiring if appropriate reports had
been made to the Company's insurance carrier; Allen
replied that he had heard of the accident but had received
no reports, that he would check into the matter and if
Wagner and Groves had failed to make the appropriate
accident reports, he would discharge them; Meneley in-
sisted they not be discharged until they had filed the
required reports with the insurance carrier. Allen further
testified that inasmuch as neither Wagner nor Groves
were on duty that day, he was unable to question them
until they reported for work on the evening of July 23.
According to Allen he then questioned Wagner and
Groves individually and each disclaimed responsibility
but blamed the other, whereupon he called both to his of-
fice and pursuant to such a confrontation they admitted
having been involved in separate accidents. On July 25,
having confirmed that Wagner and Groves had filed the
required reports with the Company's insurance carrier,
and upon their completion of their respective spotting
419
runs, Allen discharged them, purportedly for failure to re-
port their accidents.
Sam's-U-Drive's employee, Brooks, testified that
when Wagner returned the rented truck and after it had
been ascertained that there was some damage to the right
front fender of the vehicle and to the mirror and door on
the right side, she attempted to establish the identity of
the person or persons who were driving at the time the
damage occurred but Wagner denied such knowledge and
said he was only returning the vehicle on behalf of the
Company. Freeman, in corroboration of Brooks, testified
that she overheard the entire conversation between
Wagner and Brooks, and that he also denied knowledge
of the identity of the person driving the truck at the time
the damage was sustained in response to her own inter-
rogation. According to these witnesses for the Respond-
ent, Wagner was then requested to sign a receipt for the
damaged truck and instructed to have the Company noti-
fy Sam's-U-Drive concerning the individual who was in-
volved in the accident. Wagner agreed to sign but was
reluctant to do so because, according to him, he had
nothing to do with the accident himself. These company
witnesses denied that Wagner asked them to report the
matter to Allen, or that he gave them Allen's phone
number - as Wagner testified he did.
By letter addressed to Meneley and signed by an in-
surance department officer of Sam's-U-Drive, dated Au-
gust 8, 1966, the latter advised Respondent, apparently
upon request, that the damaged vehicle was returned by
a person presumed to be Wagner; that the latter stated he
knew nothing of the accident and was requested to have
persons involved in it contact Sam's-U-Drive; that the in-
formation was not thereafter furnished; and that approxi-
mately a week after the return of the vehicle "two young
men" inquired about the amount of the repair but no men-
tion was made of the circumstances regarding the ac-
cident and the two did not reveal their names.
Presumably, this letter was introduced in corroboration
of the testimony of Brooks and Freeman and doubtless
was solicited by the Respondent shortly after the filing of
unfair labor practice charges by Wagner on August 4.
Conclusions
I have no doubt that both Wagner and Groves knew
that they were required to report promptly on any ac-
cident which involved a company owned or company
rented truck which occurred while they were driving the
said vehicles. Kits were furnished with company trucks
for reporting accidents, and doubtless they could have ob-
tained these forms had they considered it necessary. I
find credible their explanation that they did not consider
that they were required to fill out these highly detailed
forms when the damage to the vehicle they were driving
was as relatively minor as it was here. A mere glance at
these kit forms shows that they were intended for use
primarily in accidents which involved some injury to per-
son or persons. Groves on an earlier occasion, about July
2, had an accident while driving a company turck, which
involved another vehicle. On that occasion he returned to
the plant, reported orally to Allen on the accident, and at
Allen's direction filled out an accident report on the back
of a maintenance slip - not on any of the forms provided
in the kit previously referred to. The amount of damage
in this earlier accident far exceeded that encountered
here. I also think it was an extenuating circumstance that
no one was on hand to report to orally at the time Wagner
310-5410-70-28
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Groves returned to the plant. Obviously, if Allen had
no motive in effectuating the discharges other than requir-
ing conformity to company rules he would have taken
such matters into consideration . This is not to say that I
am substituting my judgment for his as to what con-
stituted cause for discharge . I am well aware that as far as
we are concerned he could have discharged Wagner and
Groves for wearing loud neckties - provided that was the
real cause of the discharge . But in deciding between cause
and pretext we must take the element of reasonableness
into consideration , and from my observation of Allen and
hearing him testify I have concluded that normally he
would follow a course of reasonableness and would not
discharge two employees who only a week before had
received a salary increase - evidence of their satisfactori-
ness as employees - in an arbitrary or capricious manner
or without first weighing the factors in their favor.
There was a good deal of evidence taken from Re-
spondent ' s witnesses tending to prove that Wagner and
Groves denied their involvement in damage to the truck,
lied about it, etc., and it may well be that they were not
entirely accurate in all their testimony . Perhaps Wagner,
contrary to his testimony, did deny knowledge of what
person or persons caused the damage to the truck when
returning it to its owners, Sam's-U - Drive , but crediting
Respondent ' s witnesses on the point , it may well be that
he considered that this was something to be settled
between Sam's-U-Drive and the Company, for it makes
no sense whatever to suppose that he believed he could
keep the matter of a scraped fender a secret from Allen;
the report he signed when he turned in the truck at Sam's-
U-Drive would belie any such intention; and it makes
even less sense that Groves would engage in concealment
of having damaged the mirror and dented one of the doors
when the dock foreman came upon him shortly after the
incident and helped him repair the damage . In short, I do
not credit Allen's testimony that he had to call Wagner
and Groves in jointly , arranging a confrontation, before
he could find out who was responsible for what damage.
Wagner and Groves denied that there was any such con-
frontation and I credit them.
It may be that Wagner was also in error in his
testimony that he requested Brooks to notify Allen of
damage to the truck though I entertain some considerable
doubt in the matter. In any event, he would know that a
report would be made to the Company by Sam's-U-
Drive , whether he requested it or not, and such a report
was in fact made to Respondent 's comptroller within 48
hours.
Finally, the damage to the rented truck was relatively
minor , the repairs coming to a total of less than $90, and
that doubtless covered by Respondent 's insurance. While
the amount is not broken down between the damage oc-
curring while Groves was driving and that attributable to
Wagner , it must have been slight indeed as to the former.
As previously noted, Groves' earlier accident, involving
damage to the vehicle of a stranger , was much costlier
than the total damage suffered here, but no disciplinary
measures were inflicted on Groves, even to the degree of
a reprimand , at that time . Respondent does not, in fact,
stress the amount of the damage but relies , for its defense,
entirely on Wagner 's and Groves ' failure to make a report
on the accident.
Turning to the other side of the ledger , we have a whole
series of antiunion statements made by Allen to both
Wagner and Groves, threats to find a pretext for discharg-
ing anyone that Allen ascertained to be supporting the
Union, threats to discharge them on knowledge that they
were supporting the Union, inquiries concerning persons
Allen suspected of union affiliation, and inquiries of
Wagner and Groves as to whether they had removed lists
of employees from Allen's desk for furnishing the Union.
True, Wagner and Groves in all these conversations dis-
claimed knowledge of union meetings, who was affiliated
with the Union, and the like, but despite these disclaimers
Allen's interrogation of both concerning the removal of
employee lists from his desk, shows that he continued to
suspect them of cooperating with and supporting the
Union. In view of all these circumstances I am unable to
agree with Respondent's able counsel that Allen was
totally lacking in knowledge and belief that Wagner and
Groves were in any way involved in the union movement,
and therefore, in discharging them, could not have been
prompted by antiunion considerations.
It is significant, I think, that the discharges came
swiftly on the heels of the Union's filing a new represen-
tation petition , and since both Wagner and Groves were
drivers, though not owner-drivers at the time, Allen may
well have regarded them as included in the voting unit.
He is shown to have kept himself well informed in such
matters. It is recalled that on the withdrawal of the
Union's first petition, he in effect taunted Bomer and
questioned whether the withdrawal was actually caused
by the absence of union officials and legal representatives
at the time scheduled for a hearing on the said petition. In
short, Allen, by his own admissions to Wagner and
Groves, had plenty of antiunion motivation for discharg-
ing any employee he believed to be a union supporter and
the fact that he did not discharge Bomer , to his knowledge
a leading union adherent, by no means precludes dis-
criminatory action directed at employees less notoriously
associated with the union movement, such as Wagner and
Groves.
Upon the entire evidence I am convinced and find that
the reasons advanced by Allen for the Wagner and
Groves discharges were largely pretextuous and are not
realistically separable from a strong antiunion motivation.
D. The Richard Lee Smith Discharge
Smith was employed by Respondent in October 1965
and discharged about a year later. He was an owner-
operator; i.e., he owned and drove his own truck; was em-
ployed as a "spotter"; i.e., he delivered batches of papers
to certain points on assigned routes where they were
picked up by carriers who then distributed them to sub-
scribers; was paid on a commission basis per thousand
papers delivered; and prior to the start of public schools
in September 1966, was, according to Allen who super-
vised and discharged him, a satisfactory employee.
Thereafter , again according to Allen, he was frequently
late in his deliveries and this gave rise to numerous com-
plaints from carriers, many of whom were schoolboys
who had to complete their distribution of papers before
going to school. It was for this reason that he was
discharged. Smith testified that he received no complaints
from carriers and that he was never warned, prior to his
discharge, that his work was not satisfactory.
Smith was instrumental in initiating the organization
campaign among Respondent's owner-drivers; arranged
for a first meeting with a union organizer at employee
Nelson's home on about May 22; and in all collected
some 19 union authorization cards from a total of about
23 owner-operators. Admittedly, he obtained no cards on
VAN NUYS PUBLISHING CO. 421
company premises; meetings were held away from the
plant; no company official questioned him concerning the
Union or engaged him in conversation about union activi-
ties; and union activities among the employees was clan-
destine.
Allen's testimony with respect to Smith's late deliv-
eries was corroborated by Ralph Miller, assistant circula-
tion manager, whose office, under the district manager,
supervised the carriers.3 Complaints would normally
come to his office and if they concerned the spotters they
would be relayed to Allen. Miller was acting as district
manager during the period in question, and testified con-
cerning complaints that he received and passed on to Al-
len: "They [the carrier boys] were calling in that they
didn't have their papers, and it wasn't the Company's
fault they didn't have them, because we were off the press
on time, and there was really no reason the boys did't
[sic] have their papers in time to deliver in the morning."
Apparently, other complaints were received when there
were late 'press runs. The carriers were required to
complete their deliveries by 8 o'clock. Miller testified that
the complaints were frequent, that from 7 to 15 carrier
boys had complained on certain single occasions, and that
all complaints came from routes covered by Smith. He
further testified that on more than one occasion he called
Allen; on one occasion Allen replied that Smith had said
he was running a little late because he stopped for a cup
of coffee; and that when the complaints continued he
asked Allen "if this is going to keep on, what are you
going to do about it?" Allen replied that he would "check
in on it."
Allen did in fact "check in on it." On the evening of Oc-
tober 19 and again on October 21, Allen followed Smith,
after the latter had picked up his papers, to a restaurant to
determine, apparently, whether Smith's failure to spot his
papers in time for the carrier boys to make their deliveries
was due to a "late press" or excessive time idled by Smith
prior to spotting the papers. On each occasion, according
to Allen, Smith spent more than an hour in the restaurant
before starting on his delivery routes. On the second oc-
casion , Allen was accompanied by employee Joel Thorn-
ton, who testified in corroboration of Allen. During the
same period they observed another spotter, Jack Chase,
entering a cafe and departing therefrom in about 20
minutes. On October 24, Allen discharged Smith.
Smith's testimony that at no time prior to his discharge
was he warned about late deliveries was disputed by
Allen who testified that in late September he told Smith
about receiving complaints from carriers on Smith's
routes; informed him that the only acceptable excuse for
late deliveries was a "press breakdown" or "truck break-
down" or "sickness;" that Smith replied that all he did
was "stop in a cafe," to which Allen replied, "excessive
time in a cafe is uncalled for especially when we are late
to start with," and that he had heard "rumors" that Smith
took more than just enough time for a cup of coffee. Allen
further testified, without contradiction, other than a
general denial that a warning was issued, that at the time
he issued this warning to Smith, Smith first suggested a
route change consolidating routes then covered by Em-
ployees Bomer and Provencal, because his truck was big
enough, and that by loading first he could get the papers
out as quick as both Bomer and Provencal who loaded
last. When Allen refused to go along with this suggestion,
Smith referred to the filing of unfair labor practice
charges by Keith Wagner and Wayne Groves,' and said,
"I could stop this trouble with the Union if you would
give me those routes. I also could stop Keith and Wayne
if you would give me these routes, because I sell them
narcotics."5
Allen testified that for a period after he issued this
warning there were no complaints about Smith's late
deliveries, but soon the complaints began again, prompt-
ing him to check up on time spent by Smith in restaurants.
As to the discharge itself, after a telephone conversa-
tion with Allen in which Allen informed Smith that he
was being discharged, Smith saw Allen at the plant. Allen
handed him his final check and termination papers, say-
ing, according to Smith, "Sorry it has to be you." Smith
testified that Allen admitted to him that Smith had never
been late in his deliveries, or did not know when he was,
and when Smith said, "What are you taking this union
business so personal for," Allen replied, "I didn't take it
personal, Smith, until you and your buddies wanted Bud's
and my ass fired."
Allen's version of the discharge interview was that
Smith said, "You know you can't make this stick on ex-
cessive time in the cafe.... It is my word against yours,"
and that Smith then began to curse him, saying that Allen
"would be better off to just replace him on the routes but
still give him his paychecks each week," and that if he
didn't, Allen would be "In trouble . . . you know I can
send hopheads to get you at your office ... and you know
if you are not home what a hophead would do to your wife
and child." Smith denied that he threatened Allen in this
manner . To Smith's threats and "propositions" Allen
replied that he would take his chances.
Later that day, at a time in the evening when Smith
would reasonably assume that a number of employees
would be assembled about the docks, Smith returned to
the plant and assailed Allen, in the presence of a group of
employees , in language that was extremely obscene,
violent, threatening, and unfit to print (in this context) ;6
challenged him to fight and brandished a wad of currency
as a wager that he was too cowardly to fight; threatened
that he would "get" whoever took over his route; and
challenged Philip Hays, a fellow spotter, to fight and
referred to him as "one of Jack's boys, a company man."
The only response Allen made was to urge Smith to
leave.
It was Spotter Jack L. Chase's credited testimony that
at about 1 a.m. on October 25, when he was at one of his
stops, Smith pulled over in his truck, asked him if he
knew who was taking over his, Smith's, job that night,
who was "doing his. route," and when Chase answered in
the negative said, "I have looked over my route forward
and backward, and I can't find who is delivering it, and I
would like to find him." Referring to his discharge, Smith
J Allen testified that it was in September that he began receiving com-
plaints about late deliveries, Miller that it was about the middle of October
when he first spoke to Allen about these complaints I do not attach the
significance to this variance in testimony that the General Counsel claims
its merits . Except by reference to written memoranda , people are seldom
able to fix dates with certainty, and their respective recollections will
often differ unless carefully rehearsed
4 The charge involving these two employees was filed on August 4
5 On cross-examination, without objections to the questions asked,
Smith admit ted that he had been convicted of a felony (manslaughter), and
was currently charged with "carrying a concealed weapon , a syringe, and
amphetamine " I do not rely on these matters in crediting portions of Al-
len's testimony over that of Smith in some instances
6 The General Counsel characterized his language as "a few choice
epithets"'
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made reference to Allen, "I go in there and call him
everything I can think of, and he won't come out in the
alley with me. He won't fight me...." Chase described
Smith's appearance on this occasion as alarming: "He
was swinging his arms around and I mean I felt uneasy I
just felt he might hit me any minute."
Smith denied that he threatened retaliation against any-
one who filled the vacancy caused by his discharge, but
otherwise did not deny the language and conduct at-
tributed to him on the evening of October 23 by Allen
and others.
Conclusions
I do not attach much weight to Respondent's argument
that Allen was unaware of Smith's union activity at and
prior to the time of the discharge, though there is in fact
no evidence that Smith engaged in such activity observa-
ble by Allen, that discussions occurred between the two
concerning union activity such as occurred between Al-
len and Bomer. another spotter. who is still in Respond-
ent's employ, or that anyone informed Allen of Smith's
role in instituting the organizational drive. Allen has been
shown to have been very alert to all manifestations of
union activity among a relatively small group of em-
ployees under his immediate supervision, and to have
been hotly opposed to it, and Smith' s name was one men-
tioned in his interrogations of Groves. We also have
Bomer's testimony that on the occasion of Smith's
discharge Allen, apparently under the impression that
dismissal of the Union's representation petition meant a
delay of another year before the Union could again try for
an election, made some sarcastic remark about Bomer, or
other employees, being "out of luck" for a year.7
However, a compelling factor in Respondent's support is
that at the time of the discharge, the Union's petition had
been dismissed and apparently organizational efforts had
come to a standstill. Also, I am convinced that there is
substance in the claim that after the start of school in Sep-
tember complaints were received by Miller and passed on
to Allen, that Smith was late in making his deliveries.
There was a good deal of testimony to the effect that no
deadline was set for the drivers to spot the papers other
than that they had to be spotted in time for the carrier
schoolboys - there were hundreds - to make their delive-
ries in time to enable them to attend school. A good deal
of testimony was taken on how long it would take a carri-
er to make his deliveries and, accordingly, how early the
driver would be required to spot the papers, but all of this
testimony was necessarily inconclusive since the time
would vary according to the requirements of the in-
dividual carriers, how many papers each had to deliver,
how long a route he serviced, and at what time each
would have to complete his distribution in order to attend
school. I can see no reason for discrediting Miller's cor-
roborative testimony His department had a separate lo-
cation and was in all respects outside Allen's sphere of
authority.
Allen's action on two occasions in following Smith to
a restaurant where Smith stopped before making his
deliveries, is attacked by the General Counsel because
admittedly from the time they picked up the papers until
they spotted them, the driver-owners were on their own
with the single qualification that the papers had to be
spotted on time. Whether they chose to stop and eat and
how long they took would be of no concern to the Com-
pany provided they spotted the papers on their respective
routes in time for the carriers to get them delivered before
the deadline of 8 o'clock or, in the case of carrier school-
boys, in time for the latter to attend school Allen's ex-
planation of his action was anything but lucid, but it does
appear that on the two occasions when he followed Smith
there was a late press and he may have had in mind
forestalling Smith in giving this as a pretext for late
deliveries Further, Allen may have felt some need to
consolidate and strengthen his position in view of Smith's
"propositions" and threats at the time he warned him
about late deliveries. I am convinced, contrary to Smith's
testimony, that this warning did occur, and credit Allen's
undisputed testimony about Smith's proposals for chang-
ing routes with the inducement that he could require
Groves and Wagner to withdraw their charges because he
furnished them with "dope."
Upon the entire testimony, though not free of doubt, I
am not convinced that a preponderance supports the
General Counsel's case, and accordingly I shall not find
an 8(a)(3) violation, but were I so convinced I would har-
bor no doubt whatever that Smith's conduct preceding
and following his discharge disqualified him for reinstate-
ment . His attempt to bargain on a change in routes with
the proffered inducement mentioned above; his threats
against Allen if the latter did not continue to issue him his
regular paychecks though he had been removed from the
job, his extremely obscene and violent denunciation of
Allen in the presence of rank-and-file employees super-
vised by Allen; his villification of fellow spotter Hayes
and attempt to engage both Allen and Hays in a fight; his
threats directed against anyone assigned to routes follow-
ing his discharge, his attempts thereafter to learn the
identity of such person or persons, all combine to a
degree of such character and magnitude that it would be
unwarranted to order his reinstatement, with or without
backpay, under the guise of effectuating the policies of
the Act. The public interest would not be served by such
"remedial" action.
iV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations of
the Respondent described in section II, above, have a
close, intimate, and substantial relationship to trade, traf-
fice, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent discharged its em-
ployees Wayne Groves and Keith Wagner because of
their union and concerted activities, I shall recommend
that the Respondent offer them immediate and full rein-
statement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights
and privileges, dismissing if necessary employees hired
' Allen admitted that after his encounter with Smith, he said, "Why
don't they do the work and quit agitating trouble," but denied that he had
reference to union activities
VAN NUYS PUBLISHING CO. 423
subsequent to their respective discharges, and make them
whole for any loss of pay suffered because of°the dis-
crimination against them, by payment to them of a sum of
money equal to that which they normally would have
been paid in Respondent's employ from the date of the
discharge to the date of Respondent's offer of reinstate-
ment, less their net earnings, if any, during said period.
Loss of pay under the backpay order recommended
above shall be computed upon a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, and shall include the payment
of interest at the rate of 6 percent per annum to be com-
puted in the manner set forth in Isis Plumbing & Heating
Co., 138 N LRB 716. Respondent's violations are of such
character and scope that a broad cease-and-desist order
is required.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
I The Respondent is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce and a
business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging its employees Keith Wagner and
Wayne Groves because of their union and concerted ac-
tivities thereby discouraging membership in a labor or-
ganization, Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. Because of the aforesaid discharges; by unlawfully
interrogating its employees concerning their union activi-
ties and the union activities of their fellow employees;
and by threatening to discharge employees found to have
been engaging in union activities, the Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
5. The aforesaid labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. It has not been proven that Respondent discharged
its employee, Richard Lee Smith, because of his union or
protected concerted activities.
[Recommended Order omitted from publication.]