White's Gas & Appliance, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1973

202 N.L.R.B. 494 (N.L.R.B. 1973)

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
White's Gas & Appliance, Inc. and Teamsters Local
No. 486, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 7-CA-9565
March 20, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On November 1, 1972, Administrative Law Judge
Almira Abbot Stevenson issued the attached Deci-
sion in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief, and the General
Counsel filed cross-exceptions to the Administrative
Law Judge's Decision and opposition to Respon-
dent's exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in lig.1L of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
rulings, findings,' and conclusions of the Adminis-
trative Law Judge to the extent consistent herewith.
1. The Administrative Law Judge found that
Respondent discriminatorily discharged Robert Car-
penter because of its employees' union activity in
violation of Section 8(a)(3) and (1) of the Act. In
reaching this conclusion, the Administrative Law
Judge found that it was Respondent's receipt on
April 29, 1972, of the Union's demand for recogni-
tion and its conclusion that Carpenter was responsi-
ble for the Union's presence which triggered the
decision to discharge him.
We agree with the Administrative Law Judge's
ultimate conclusion that Carpenter was unlawfully
discharged, but, in doing so, we find, for the reasons
stated below, that the conduct of Respondent's
employees with respect to their overtime pay claims,
as well as their union activity, playea a direct role in
the decision to discharge Carpenter.
The facts, as more fully described in the Decision
of the Administrative Law Judge, show that Carpen-
ter, who was a full-time employee at Fisher Body
Company, was first hired by Respondent in Septem-
ber or October 1967, as a part-time employee at $2.75
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (CA 3) We have carefully
examined the record and find no basis for reversing her findings.
2 The record reveals, however, that there was still work for Carpenter to
do at the time his employment was terminated, that Saxton and Fitzpatrick,
an hour, and that until 1971 he usually worked from
the fall of one year until the spring of the next. When
Carpenter resumed his employment in the fall of
1971, however, he was told by Theron White, the
corporate director of Respondent, that he could work
through the summer because "he was fine help."
The record shows that early in November 1971,
employees Charles Carpenter, who is Robert's father,
Larry Chick, and Marion Andrew reported Respon-
dent to the Wage and Hour Division of the Labor
Department for failing to pay the proper rate for
overtime work. Respondent settled the overtime
claims of these and other of its employees in March
1972. However, late in April 1972 it learned that one
employee, Lloyd Kinney, was dissatisfied with the
overtime settlement. At the same time, White
observed that the employees were meeting in "little
groups and huddles" which he interpreted as an
effort on their part to "undermine" him.
On April 21, 1972, Robert Carpenter signed an
authorization card for the Charging Party and mailed
it to the Union. On Friday, April 28, Carpenter did
not work because of car trouble. He called White
and offered to make up the work on Saturday, but
White told him that there was no work to be done on
Saturday that he could not do on Monday, May 1.
On Saturday, April 29, Respondent received the
Union's written request for recognition. On Sunday,
April 30, Theron White and his wife Alice drove to
Carpenter's home and informed him that he was no
longer needed, as work was getting slack and they
had decided to keep on one of the employees who
did not have two jobs.2 When Carpenter offered to
pick up his paycheck on Monday, Alice White told
him she would deliver it to his home, a distance of 11
miles from the plant.
On May 8, the Union filed a petition for a Board
election. At the hearing on May 22 and 23, Theron
White testified, when asked for the reason he laid
Carpenter off, "I think everything that developed
over this overtime deal. There was just that undercur-
rent going around. I figured that no more work than
we had, the other older help might just as well start
doing it." When asked at the hearing herein whether
that was his testimony, White responded, "That is
correct because Lloyd [Kinney] made the remark
that he would not sign that thing [the overtime
settlement] and they were getting in little groups and
apparently part-timers who also held jobs elsewhere and were junior to
Carpenter in employment with Respondent , were hired in April 1972 and
continued working through August, that Carpenter' s father, a full-time
employee of Respondent, took sick leave from April 23 to August 1 or 2,
that Roslund , another seasonal employee, had quit earlier that month, that,
after Carpenter's father went into the hospital on April 23, one of the
Whites told Carpenter that employee Lawrence Smith would give him some
help with the truck runs, and that Carpenter was doing his father's work
when he was discharged.
202 NLRB No. 60
WHITE'S GAS & APPLIANCE, INC. 495
huddles and you'd have to go out and break it up."
He said, "Well, I knew then about what the whole
situation was where they were trying to undermine
me in a way. . . . I didn't know what was going on
around with the help because nobody would mention
anything of the nature of the activities, but there was
an undercurrent where you knew something was
being formulated."
Based on the above facts and White's admissions in
his testimony, it is clear that at this point White
decided that he had to forestall "the whole situation
. .. to undermine me" from deteriorating further by
discharging someone, and that that someone turned
out to be Robert Carpenter. White's own testimony
establishes that one of the reasons he decided to
discharge Robert Carpenter was because he learned
that the "undercurrent" was in fact related to the
employees' concerted activities in pursuing their
overtime pay claims.
Accordingly, we find that, in discharging Robert
Carpenter, Respondent was motivated, at least in
part, by its employees' protected concerted activities
in pursuing their overtime pay claims, and that
Respondent thereby violated Section 8(a)(1) of the
Act.3
We further find that Carpenter's discharge violated
Section 8(a)(3). Like the Administrative Law Judge,
we find that White considered the Union's demand
for recognition as the last straw: In reaching this
conclusion, however, we do not rely on the fact or
find it necessary to determine, as she did, that White
considered Carpenter primarily responsible for the
union activity of its employees. While White may not
have been aware that Carpenter had signed a union
card on April 21, the precipitate timing and circum-
stances of his discharge clearly show that, upon
receipt of the Union demand for recognition on
Saturday, April 29, White then knew that the
"undercurrent" and "something that was being
formulated" related to his employees' union activi-
ties, as well as their concerted activities concerning
their overtime pay claims. Therefore, we find that, in
discharging Carpenter on Sunday, April 30, White
was also motivated by the employees' union activity.4
Accordingly, we shall order Respondent not to
discriminate against its employees for engaging in
union or concerted activity, and to refrain from
interfering with their exercise of any Section 7 rights.
3 See Thurston Motor Lines, Inc., 159 NLRB 1265, 1306-07, in which the
Board enunciated the principle that it would be contrary to public policy to
hold that the making of complaints to public authorities in the course of
concerted activity removes the protection of the Act from the concerted
activity. G. V.R., Inc., 201 NLRB No. 2. (Chairman Miller dissented on the
ground that , in his view , there was insufficient evidence to show that the
employees were acting in concert . He finds, however, that the instant case is
distinguishable on its facts and that the evidence shows that the employees,
in reporting their overtime pay claims to the Wage and Hour Division, were
2. The General Counsel excepts to the Adminis-
trative Law Judge's recommendation that Robert
Carpenter be paid no backpay from the date his
father returned to work from sick leave until the date
he would have returned to work in the fall of 1972.
General Counsel contends that the extent of the
backpay period for Carpenter should have been
deferred to the compliance stage of these proceed-
ings. We find merit in this contention. This issue and
other possible issues bearing on the backpay period
were not litigated at the hearing. In these circum-
stances, and as there appears to be no reason why the
backpay computation should not be handled in the
usual manner, we shall leave this aspect of the case to
the compliance stage of this proceeding.
Accordingly, to remedy the unlawful discharge of
Robert Carpenter, we shall order Respondent to
make him whole for any loss of earnings he may have
suffered by reason of the unlawful conduct directed
against him by paying him a sum of money equal to
the amount he would have earned as wages from
April 30, 1972, the date of his discharge, to the date
of a bona fide unconditional offer of reinstatement
by Respondent, less his net earnings , F. W. Wool-
worth Company, 90 NLRB 289, plus interest at the
rate of 6 percent to be computed as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
3. The Administrative Law Judge recommended
a narrow cease-and-desist order. We find, for the
reasons stated below, that a broad order is warrant-
ed. The discharge of Robert Carpenter, for the
reasons and in the circumstances found herein,
strikes at the heart of rights guaranteed to employees
by the Act. There is reasonable ground to anticipate
that Respondent will infringe upon other rights
guaranteed employees by the Act, unless appropri-
ately restrained by a broad order that it cease and
desist from infringing in any manner upon the rights
guaranteed employees by Section 7 of the Act.
Accordingly, we shall order Respondent to cease and
desist from in any other manner interfering with,
restraining, or coercing any employee in the exercise
of his right to engage in or refrain from engaging in
any employee activities protected by Section 7 of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
acting on behalf of all employees. Indeed , when it settled the claim in
March 1972, Respondent paid overtime to all those employees in the
bargaining unit who were entitled to such pay (G.C. Exh. 4).)
4 In light of all the facts set out above , especially in those summarized in
In. 2 hereof and the instruction to Carpenter only 2 days before his
discharge that he should report to work as usual the following Monday, we
agree with the Administrative Law Judge that Carpenter was not discharged
for economic reasons.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
White's Gas & Appliance, Inc., Perrinton, Michigan,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee to discourage employee activity in
favor of Teamsters Local No. 486, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other union.
(b) Discharging or otherwise discriminating against
any employee because employees, in the course of
concerted activity, complain to governmental agen-
cies, or have interviews with any of such agencies'
representatives, or take other concerted action in
furtherance of their mutual aid and protection, where
the subject matter of such complaints or other action
involves the hours of employment, wages, or other
working conditions of the employees.
(c) In any other manner interfering with, restrain-
ing, or coercing any employee in the exercise of his
right to engage in or refrain from engaging in any
employee activities protected by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer Robert Carpenter reinstatement to his
former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and
make him whole for his lost earnings in the manner
set forth in paragraph numbered 2 of this Decision.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its plant in Perrinton, Michigan, copies
of the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by the
Respondent's authorized representative, shall be
posted by the Respondent 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 the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any of you to discourage activity in
favor of Teamsters Local No. 486, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other
union.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for complaining, in the
course of concerted activity, to governmental
agencies, or having interviews with any of such
agencies' representatives, or taking other concert-
ed action for your mutual aid and protection,
concerning hours of employment, wages, or other
working conditions of employees.
WE WILL offer full reinstatement to Robert
Carpenter and make him whole for any loss of
pay he may, have suffered as a result of his
unlawful discharge, plus interest at the rate of 6
percent per year.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of any of their rights guaranteed by
Section 7 of the National Labor Relations Act, as
amended.
WHITE'S GAS &
APPLIANCE, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
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 questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, Telephone
313-226-3200.
WHITE'S GAS & APPLIANCE, INC. 497
DECISION
STATEMENT OF THE CASE
AUs IRA ABBOT STEVENSON, Administrative Law Judge:
This case was heard at St. Johns, Michigan, on September
12, 1972. The charge was filed by the Union and served on
the Respondent, June 1, 1972, and the complaint issued
July 11, 1972. The only issue is whether or not the
Respondent discharged Robert Carpenter on April 30,
1972, in violation of Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended.
For the reasons given below, I find that Carpenter was
discharged in violation of the Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the brief filed by the Respondent,' I make the following:
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
1. JURISDICTION
The Respondent is a Michigan corporation engaged at
Perrinton, Michigan, in the sale of propane gas and
furnaces to retail and nonretail customers and in the
installation and servicing of said furnaces. During the
calendar year ending December 31, 1971, the Respondent
received gross revenue in an amount over $349,000, and
received propane gas valued in excess of $50,000 from
Cities Service Company, located in the State of Michigan,
which propane gas had been received by Cities Service
Company directly from sources outside the State of
Michigan. The Respondent admits and I find that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
The Respondent also admits and I find that Teamsters
Local No. 486, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICE
A. The Evidence Presented
The complaint alleges that the Respondent discharged
Robert Carpenter April 30, 1972, because its employees
were seeking to` be represented by the Charging Party and
because they had engaged in other union and concerted
activities. The Respondent contends that Carpenter is a
part-time winter season employee, and that it laid him off
for lack of work and will reemploy him at the advent of the
next winter season.
The Respondent's operations are run by its owners,
Theron White, corporate director, and his wife, Alice
White, president.
Carpenter obtained a job as a regular full-time water test
inspector at Fisher Body Company in September 1967. He
was assigned to the 4:30 p.m. shift, which he still works at
$4.60 an hour. Shortly after he obtained that job, in
September or October 1967 Carpenter began his employ-
ment at the Respondent's premises . He worked 6 hours a
day for the Respondent, leaving at 2 p.m., 5 days a week.
The Respondent paid Carpenter $2.75 an hour. His duties
were to fill 100-pound propane gas cylinders, or bottles,
deliver them by truck, and service furnaces and hot water
heaters; he also painted cylinders and brought in new
accounts.
Carpenter has always worked for the Respondent from
fall until spring, when he would inform White that he
would "call it a season" because the overtime was
becoming too heavy at Fisher Body. In 1971, Carpenter
called it a season the first of January when he found
himself working 10-13 hours at Fisher Body. In 1970, and
the years before that, Carpenter called it a season in
February or March.
Carpenter testified without dispute that when he report-
ed for duty at White's in the fall of 1971, Theron White
asked him how long he could work that season, and
Carpenter replied that he would work as long as White
needed him, even through the summer; and White " smiled
and said okay." Carpenter testified he made that statement
because the Fisher plant would not have much overtime
that winter season because it was approaching the end of a
model run as it did every 3 or 4 years and would not be
producing as many of the old bodies.
On April 21, 1972, Carpenter signed an authorization
card for the Charging Party and mailed it directly to the
Union. On April 29, Theron White received a letter from
the Charging Party demanding recognition as the bargain-
ing representative of the Respondent's drivers, installers,
helpers, and service mechanics. Carpenter was laid off, or
terminated, on April 30. The Charging Party filed a
petition on May 8, 1972, for a Board election (Case
7-RC-11198), and a hearing was held on the petition May
22 and 23, 1972, at which Theron White testified, as
discussed below. Subsequently, the Charging Party won the
election and was certified.
Carpenters' father, Charles, did the same work for the
Respondent as Carpenter, on a full-time year-round basis.
On April 23, 1972, Charles Carpenter entered the hospital
for an operation which his doctor had advised would
require his being away from work until August. Carpenter
testified that he and his father decided that Carpenter
would take over the father's work and when the Whites
were advised they told Carpenter that Lawrence Smith, a
bulk-tank truckdriver, would help him with the runs. For
this reason, Carpenter testified , he expected to work for the
Respondent until his father returned. Theron White
testified that the Whites suggested that Charles Carpenter
have the operation then, as it was the best time of the year
to have it done. He explained that bulk deliveries were "all
caught up," and the Respondent's need for bulk drivers
dropped from four to one or two in the spring of the year.
Theron White could not recall that Carpenter mentioned
taking over part of his father's route.
Regarding his separation, Carpenter testified as follows:
He worked for the Respondent the week of April 24,
1 No brief has been received from the General Counsel or the Charging
Party.
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picking up part of his father's route while Smith picked up
the rest, until Friday, April 28, when he did not go to work
because of car trouble. He telephoned White to this effect
about 10 or 11 a.m. on Friday, and told Theron White he
would come in Saturday to make up the work missed. But
White replied it would not be necessary as there was no
work to be done on Saturday that he could not do on
Monday. Carpenter said then he would see Theron White
on Monday and White replied, "Okay, thank you."
Carpenter's car was fixed by 11:30 a.m. and he went home.
He spent the afternoon at home until he went to work at
Fisher Body. His wife spent the evening at home. The
following Sunday evening, April 30, Theron and Alice
White drove to Carpenter's home, and told him he need
not come in on Monday, work was getting slack, and it was
better to lay off Carpenter than one of the men who did
not have two fobs. 'Carpenter asked who would take his
place, and they said Marion Andrew, a full-time employee,
would do so. Carpenter indicated he would pick up his
check on Monday, but Alice White said she would bring
his check to his home (a distance of 11 miles from the
plant). Carpenter did not tell the Whites he had wanted to
quit or be laid off. Although he did tell them he was
expecting the layoff because of the arrival of warmer
weather, he actually was surprised because he expected to
work until his father's return in August. Carpenter told the
Whites to call him whenever they needed him, and they
said they would do that.
At the hearing in this proceeding, Theron White testified
as follows: When Carpenter came back to work in the fall
of 1971, White did not plan to work him through the
summer of 1972, although White would have done so if he
had needed Carpenter. On April 30, 1972, White had no
knowledge of any union activity by Carpenter. All during
the week of April 24, he and Alice White had discussed
whether to keep Carpenter any longer. They decided to lay
him off because it was the time of the year when there was
not enough work to go around, and if they did not lay him
off, they would have had to lay off one of their older bulk
drivers, one of whom they asked to take over cylinder
deliveries. They tried to approach Carpenter three different
times on the matter , but he did not come to work
Thursday, April 27, or Friday, April 28. White remem-
bered no phone call from Carpenter on Friday that his car
had broken down. The Whites went to his home on Friday
evening at about 7 p.m., and again on Saturday. They
finally found him at home Sunday evening, April 30. They
then informed Carpenter they would not need him any
longer because work was scarce. Carpenter was pleased
that he did not have to work any longer and said that he
had been wanting to quit, and his wife said she had also
been wanting him to quit, but he had stayed longer than he
had planned only because his father was in the hospital.
Theron White was then questioned intensively about his
testimony on this matter at the representation case hearing.
The Regional Director's Decision and Direction of
2 Because of the pendency of the instant proceeding , the Regional
Director did not decide the issue but permitted Carpenter to vote subject to
challenge
Election in that proceeding states that the Employer
maintained that Carpenter was discharged April 30, 1972,
and would not be reinstated , and was therefore ineligible to
vote.2
White admitted he testified in that proceeding that
although Carpenter was a good employee, as good as any
White had, White did not plan to recall Carpenter when he
let him go April 30. He laid Carpenter off because there
was an "undercurrent" among the employees and he knew
"something was being formulated ." He explained that the
"undercurrent" had started when employee Larry Chick
negligently burned down the Respondent's office in the
summer of 1971 and the insurance company forbade
continuing him on the payroll. Chick, Charles Carpenter,
and employee Marion Andrew had thereafter gone to
Lansing "one at a time" and reported White to the wage
and hour division of the Labor Department for failing to
pay the proper rate for overtime work, although none of
the employees had come to White with this problem. White
settled with the wage and hour division in March. Later,
about the time of Carpenter's layoff, White heard that
employee Lloyd Kinney had said to someone , back in
January, before White ever knew what the settlement
proposal would be, that he would not sign the settlement.
White's secretary had also informed him, about a week
before this , that one of his oldest employees , unnamed, had
remarked to someone else, with respect to White 's having
rehired one Carl.Verstaen the preceding November, that if
White had the kind of money to waste on rehiring such a
man, the employee was going to start coming to work
earlier every morning and waste an hour a day to get some
of that money. White knew then that the employees were
"trying to undermine me."
White affirmed that when asked again, at the representa-
tion case hearing , for the reason he laid Carpenter off, he
had responded, "I think everything that developed over
this overtime deal. There was just that undercurrent going
around, I figured that no more work than we had the older
help might just as well start doing it." He also testified that
the employees "were getting in little groups and huddles
and talking," and White "would have to go out and break
it up." When he had been asked whether the "undercur-
rent" had something to do with the Union, and whether
White knew or suspected that Carpenter was playing a part
in it, he had replied that he "had no way of knowing what
was going on," and did not necessarily feel that getting rid
of Carpenter would result in less discord; although he
"knew it was somebody," he did not know "where to put
his finger ." He knew that there was something going on
and "the work was little slack, and it could be carried on
sufficiently with the older employees . It was more logical
to keep them to work than it was to have Robert
[Carpenter] when he had only been there a short time."
Carpenter testified that when he was terminated, April
30, there was still work for him to do, delivering cylinders
to customers, and bringing back surplus cylinders, and
checking , repairing , and storing them for the summer.
At the time of Carpenter 's separation , there were six
drivers on the payroll including Carpenter. As indicated,
Carpenter's father had left for the hospital April 23.
Carpenter testified that K. F. Roslund, another seasonal
WHITE'S GAS & APPLIANCE, INC. 499
driver who had taken over Carpenter's work when he had
quit in January of the previous year, had quit in early
April. Two other employees, Saxton and Fitzpatrick, who,
Carpenter testified, delivered propane gas to the Respon-
dent's premises for another company and helped White's
drivers fill and load cylinders while the tanks filled, had
been added to the payroll that month, apparently on a
part-time basis.
After Carpenter's termination, driver R.W. Andrew left
in June. The Respondent's payroll records show the
following gross earnings of its production employees for
the months of April through July 1972:
B. Findings and Conclusions
The Respondent admitted in its answer to the complaint
that Carpenter was discharged. The Respondent's counsel
conceded at the hearing herein and in its brief, as Theron
White admitted on the stand, that White testified at the
representation case hearing that Carpenter was permanent-
ly discharged April 30. In these circumstances, and as I
find Theron White an incredible witness based on his
demeanor and on his admitted tailoring of his testimony to
suit his different objectives in two different Board
proceedings, I discredit him generally, and find without
merit the contention of the Respondent's counsel in his
4/30 5/31 6/30 7/31
R. W. Andrew 401.25 543.38 278.25 0
M. A. Andrew 491.62 643.51 474.76 609.39
R. Carpenter 292.88 46.75 0 0
C. Carpenter 453.75 0 0 0
L. W. Kinney 573.22 671.94 531.79 678.48
K. F. Roslund 160.88 0 0 0
L. D. Smith 414.00 443.25 327.75 534.76
C. A. Verstaen 438.38 294.75 256.50 186.75
R. E. Saxton 60.00 228.75 159.75 72.00
J. J. Fitzpatrick 36.00 230.25 147.00 63.00
Total 3321.98 3102.58 2175.80 2142.38
Average 332.19 387.82 310.83 357.05
brief that I should believe White's assertions on the stand
that he merely laid Carpenter off April 30. I therefore
conclude that Carpenter was discharged.
As to the reason for the discharge, I discredit Theron
White's statements to the effect that there was not enough
work and he felt that employees with more seniority or
those without two jobs, instead of Carpenter, should do it,
for the same reasons given above and because, as discussed
below, there was enough work and yet White fired
Carpenter and retained Saxton and Fitzpatrick who had
less seniority and two jobs.
It is apparent from Theron White's testimony at the
representation case hearing, as explained and expounded
on the stand here, that he had deeply resented the conduct
of his employees in connection with their reimbursement
for overtime worked, and that he somehow focused his
resentment on Robert Carpenter, even though the record
shows that Carpenter was not reimbursed for overtime. In
my opinion, however, this played only an indirect role in
the decision to fire Carpenter. Thus, White had known
about the overtime claims since November 1971, when the
wage and hour division first contacted him, and had paid
out the overtime owed his employees in March 1972, and
yet he thereafter permitted Carpenter to work longer in the
spring than he ever had before. According to Carpenter,
whom I credit on the basis of demeanor, consistency, and
the inherent probabilities as to the events which occurred,
White thereafter told Carpenter he could work through the
summer in his father's place and Smith would take the runs
Carpenter could not take. Moreover, White put this plan
into effect on April 24. Although White was upset by the
gossip he heard during the week of Carpenter's discharge
about employee remarks in connection with the overtime
pay, and blamed Carpenter, White nevertheless indicated
to Carpenter, on Friday, April 28, over the telephone, that
he was expecting Carpenter to come to work Monday, May
1, as usual. It therefore was something which occurred
between Friday and Sunday which precipitated the
decision to fire Carpenter. The occurrence was, I find,
White's receipt on Saturday, April 29, of the Union's
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demand for recognition. Although Carpenter' s union
activity was minimal and there is no direct evidence that
the Respondent was aware of it, it is plain that White,
having admittedly attributed his overtime pay troubles to
Carpenter, similarly attributed the advent of the Union to
him. Why else would Theron and Alice White speed to
Carpenter's home on Sunday to discharge him instead of
waiting for him to show up at the plant early Monday
morning? Indeed, they were suddenly so anxious for
Carpenter not to appear at the plant and associate with the
other employees again that they instructed him not to even
pick up his check, as Alice White would drive the distance
of 11 miles to deliver the check to his home. In these
circumstances, and in view of White's admitted view that
employees' complaining, congregating, and "formulating"
created an "undercurrent" which "undermined" him, and
his evasive testimony regarding the Union, I find that the
Whites considered the advent of the Union as the last
straw and determined to nd themselves of the man they
thought was behind it. Accordingly, I find that it was the
Whites' receipt on April 29 of the Union demand for
recognition and their conclusion that Carpenter was
responsible which triggered their decision to discharge him.
I therefore conclude, based on the above considerations
and the-entire record, that the Respondent discriminatorily
discharged Robert Carpenter on April 30 because of its
employees' union activity, in violation of Section 8(a)(3)
and (1) of the Act.
REMEDY
The Respondent contends that Carpenter is only a
winter season employee, there ww., no work for him to do
during the summer months, he has now been reemployed
for the 1972-73 winter season, and therefore no reinstate-
ment or backpay order is appropriate. I find no merit in
these contentions.
I have found above that the Respondent would have
employed Robert Carpenter until his father returned to
work, which the record shows he did on August 1 or 2. As
Charles Carpenter was a full-time year-round employee, it
is clear that the Respondent would have so employed him
during the months of May through July 1972 had he been
able to work. I find therefore that the Respondent would
have employed Robert Carpenter in Charles Carpenter's
place during that period, for the 30 hours a week Robert
Carpenter usually worked. Moreover, the gross earnings of
the employees who were on the payroll during that period,
set forth above, support this conclusion. Thus, in both May
and June, the two new employees Saxton and Fitzpatrick
together earned more than Robert Carpenter had earned in
April; and in July, the excess earnings of the employees on
the payroll over what they had earned in April totaled
more than Robert Carpenter's April earnings. I therefore
recommend that Robert Carpenter be reimbursed for the
earnings he would have received from the date of his
discharge until the date his father returned to work, plus 6
percent interest. F. W. Woolworth Company, 90 NLRB 289,
Isis Plumbing & Heating Co., 138 NLRB 716.
I further find that as Robert Carpenter was discharged,
and not laid off, he was entitled to be fully reinstated as a
winter season employee in the fall of 1972 at the same time
and to the same status he would have been had he not been
discriminatonly discharged. In the absence of record
evidence that he has received reinstatement to the extent he
was entitled, I find that an order so providing is necessary
to effectuate the policies of the Act. Pantlind Hotel
Company, 175 NLRB 815, footnote 6. No backpay will be
due between the date Carpenter's father returned to work
and the date Robert Carpenter normally would have
returned in the fall of 1972. See Roadhome Construction
Corp., 170 NLRB 668, footnote 1. I also find necessary the
customary cease-and-desist and affirmative action provi-
sions.
[Recommended Order omitted from publication.]