Wood Brothers & Halstead Lumber Co., of Phoenix

National Labor Relations Board - Board Decisions

Jun 28, 1971

191 N.L.R.B. 647 (N.L.R.B. 1971)

WOOD BROS. 647
Wood Brothers & Halstead Lumber Company of Phoe-
nix and Mill & Cabinet Local No. 2093 , United
Brotherhood of Carpenters & Joiners of America.
Case 28-CA-2124
June 28, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On February 3, 1971; Trial Examiner Henry -S, Salim
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged 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 affirmative action , as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the Re-
spondent filed exceptions to the Trial Examiner's Deci-
sion, and a supporting brief, and the General Counsel
filed a brief in response to the 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 case to a three -member panel.
The Board has, reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed . The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in, the case, and hereby adopts the
findings, ' conclusions , and recommendations of ^ the
Trial Examiner as set forth below.
We agree with the Trial Examiner's finding that the
weight of the credible evidence establishes that Paul
Wood, Respondent 's secretary-treasurer , had knowl-
edge of employee Bruno's activities on behalf of the
Union at the time of Bruno 's discharge . We further
agree with the Trial Examiner's finding that Wood
expressed strong opposition to having his, employees
organized ; that the various reasons advanced by Wood
for Bruno's discharge were ; pretexts, and that the real
reason for Bruno's discharge was his engaging in pro-
tected ' activities.
Bruno was discharged on June 19 , 1970.2 On that day
he leftwork around 4 p .m., about a half hour before the
regular quitting time. The facts show that Wood called
Bruno , at home and asked him what was he doing at
The Respondent has excepted to certain credibility findings made by
the Trial Examiner. It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear prepon-
derance of all relevant evidence convinces us that the resolutions are incor-
rect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362
(C.A 3) We find no basis for disturbing the Trial Examiner's findings in this
case.
2 All dates are 1970.
home during working hours. When Bruno replied he
had "clocked out," Wood demanded that Bruno come
down to the shop immediately. According to Bruno's
credited testimony, when he arrived at the shop, Wood
asked how had Bruno worked 43 hours that week as
indicated on Bruno's timecard. When Wood ques-
tioned Bruno's statement that he had in fact worked the
number of hours shown on the card, Bruno suggested
that Wood check this claim with Foreman Bryant.
Wood refused,. however, and proceeded to tell Bruno he
was being fired. When Bruno asked the reason for his
discharge, Wood stated, "You're fired for stealing the
wire."
Respondent contends, however, that it had several
other reasons for discharging Bruno, one of which was
the fact that Bruno had falsified his timecards. In this
respect, Respondent contends that a comparison of
Bruno's timecards for-his last v2 weeks of work with a
letter from the doctor, whom Bruno visited during that
period, shows that on those days when Bruno visited
the doctor and claimed to have worked straight
through his lunch hour to make up the time lost from
work, Bruno claimed the lunch hour as worktime but
did not deduct from his timecards the time spent for the
visits to the doctor. While Respondent denies that it
ever authorized Bruno to work through his lunch hour
or overtime, it admits that Bruno "did have an agree-
ment with the mill foreman that he couldmake up-time
spent at the doctor's office so that he would,not.l®se.
wages." In addition, Respondent contends-that' on the
day on which Bruno was fired, his timecard failed to
reflect the fact that Bruno left work a half hour earlier
than the regular quitting time.
It appears that sometime in May Bruno sustained a
back injury (whether or not work related is a matter of
doubt) which required medical attention. The visits to
the doctor could only be made during working hours.
When Bruno first informed Bryant of his condition and
of the fact that he would have to visit the doctor twice
a week, Bryant testified he told Bruno, "Well, if you're
hurting and you have to go to the doctor, you have to
go to the doctor."
Bruno visited the doctor on June 2, 4, 5, 16, and 18
and on each of these days except June 5 Bruno worked
through his lunch hour. Respondent's regular work
hours are from 8 a.m. to 4:30 p.m. with a half hour
lunch break. The entries on Bruno's timecards for all
the days in question except June 5 show a starting time
of 7:30 a.m. and a quitting time of 4:30 p.m.'
Bruno's timecard for June 2 shows that he worked
9 hours on that day from 7:30 a.m. until 4:30 p.m. The
doctor's statement shows that Bruno was at his office
at 4 p.m. and spent about 45 minutes receiving treat-
ment. The timecard, however, does not show when
191 NLRB No. 112
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bruno actually left the plant for the doctor's office on
that day.'
Bruno's timecard for June 4 shows that Bruno
worked 9 hours. According to the doctor's statement,
Bruno arrived at the office about 8:45 in the morning
and spent about 20 minutes receiving treatment. The
time of the visit is not shown on the timecard.
Bruno's timecard for June 5 shows that Bruno
worked 8 hours. Although on that day Bruno took out
a half hour lunch break, his timecard does not show the
time he was away from the plant visiting the doctor.
Bruno's timecard shows that he worked 9 hours on
June 16 and 18. Here again the card fails to note that
he deducted any time on either day for the visits to the
doctor.
On June 19, Bruno did not visit the doctor. His
timecard shows he worked a 9-hour day from 7:30 a.m.
until 4:30 p.m. without taking time off for lunch. It is
undisputed, however, that Bruno left the plant at
around 4 in the afternoon.
Bruno explained, and the Trial Examiner credited
his explanation, that, although his cards showed an
entry of 7:30 a.m. as his starting time, he in fact started
work at around 7 o'clock on the morning of June 19.
Bruno was not questioned as to why he entered the time
of 7:30 when he actually started at 7 in the morning,
nor was he asked why he did not enter on his cards the
time spent at the doctor's office. The testimony in-
dicated that Bruno had a very loose and informal ar-
rangement for keeping precise track of his hours of
work. He conceded that there were times when he took
off for personal business but maintained that he made
up the lost time. In fact, Bruno testified that in many
instances he worked overtime which was noted only by
an informal entry of the hours on the back of the card."
Bruno's supervisor admitted that on June 19 when he
arrived at work at 7:30, Bruno was already there.
Bruno, as the record shows, had a variety of duties
to perform. Eickhoff, one of Bruno's former super-
visors, testified that Bruno often put in extra time such
as picking up spare parts for company equipment dur-
ing all hours of the day, sometimes even before the shop
opened. Bruno credibly testified that on June 19, for
example, he started work at 7 a.m. in order to have a
forklift ready for operation by the time the crew arrived
for work at the regular starting time. He also testified
as to other duties which required that he start work
before the regular starting time.
As indicated, the Trial Examiner credited Bruno's
testimony that he had in fact worked the number of
' It appears that it would take about 15 minutes of travel time in getting
to and from the doctor's office.
° The cards in the possession of the Respondent when subpenaed were
admitted in evidence.
hours he claimed during the time in question.' In part,
the Trial Examiner relied on the rather significant fact
that Bryant, Bruno's supervisor, who had to approve
the timecards submitted by the employees, had ap-
proved Bruno's timecard for each week in question,
and it was impossible for him not to have known that
there were no entries on the cards for Bruno's visits to
the doctor. We think such evidence is persuasive of the
fact that Bruno worked the hours he claimed.
Accordingly, in view of the foregoing and upon the
record as a whole, we agree with the Trial Examiner's
conclusion that Respondent seized on Bruno's time-
keeping as one of its pretexts to mask its unlawful
reason for discharging Bruno.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
Wood Brothers & Halstead Lumber Company of Phoe-
nix, Phoenix, Arizona, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
' Bruno testified that on the day he was discharged, June 19, he received
his check at 2:30 p.m. Respondent, however, presented three witnesses
whose testimony tended to support Respondent's contention that Bruno was
not paid until after he had been recalled to the plant and subsequently
discharged at 4:30 p.m. In this respect, Respondent argues that it is evident
Bruno was not testifying truthfully and that therefore all of Bruno's tes-
timony should be discredited where it conflicts with the testimony offered
by Respondent. In our view the mere fact that Bruno 's testimony regarding
when he was paid was in conflict with that of Respondent's witnesses does
not necessarily show that his testimony was untruthful; the Trial Examiner
credited Bruno. Moreover, even if we were to conclude that Bruno was
mistaken as to when he received his check, and that his testimony in that
regard should not be accepted, it does not mean that it would require
reversal of the Trial Examiner's crediting Bruno in other respects
TRIAL EXAMINER' S DECISION
HENRY S. SAHM, Trial Examiner : This proceeding, under
Section 10(b) of the National Labor Relations Act, was heard
in Phoenix, Arizona, on October 20, 21, and 22, 1970 , pursu-
ant to due notice.' The complaint , which issued on August 6,
on a charge dated June 22, alleged that Respondent engaged
in unfair labor practices proscribed by Section 8(a)(3) of the
Act by discharging Joseph L. Bruno on June 19, because he
engaged in union activities on behalf of Mill & Cabinet Local
2093, United Brotherhood of Carpenters & Joiners of
America, the Union and Charging Party herein.
The answer of the Respondent admits to certain allegations
made in the complaint, but denies the commission of any
unfair labor practices . The Respondent company avers that
Bruno, the alleged discriminatee, was discharged for the fol-
lowing good and valid reasons: he breached company policy
by removing merchandise from the plant 's premises without
obtaining a sales ticket or paying for the' merchandise; he
failed to obey instructions not to park his truck in the plant's
yard; he displayed a "belligerent" attitude in arguing with his
supervisor and a company official as to when he should take
' All dates mentioned refer to 1970, unless otherwise indicated.
WOOD BROS. 649
his vacation ; he failed to obtain purchase orders when buying
parts to repair company vehicles; he threatened that if a
certain company official "didn't get off his back, something
might happen" to him; and he falsified his timecards.
Upon the entire record in this case, and from observation
of the demeanor of the witnesses , there is hereby made the
following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent, an Arizona corporation, has its principal
place of business in Phoenix , Arizona , where it is engaged in
the business of manufacturing and selling lumber and related
materials . During the past year , Respondent sold goods and
materials valued in excess of $500,000. During that same
period of time, it purchased and had delivered to its place of
business in Phoenix, goods valued in excess of $50,000 which
were transported directly to it from states of the United States
other than the State of Arizona . The allegations of the com-
plaint as to the nature and extent of Respondent 's business,
which is admitted by the complaint, are found to be facts and
therefore , it is concluded that the Respondent is an employer
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act, and
that it would effectuate the policies of the Act to assert juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
It is found and conceded that the Charging Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Testimony
Joseph L . Bruno, the alleged discriminatee , was employed
by Respondent company in August 1968 and discharged on
June 19 , 1970 . His duties consisted of the repair and mainte-
nance of all machinery of Wood Brothers & Halstead Lumber
Company, including forklifts and trucks. Sometime between
the end of May and the beginning of June 1970, Bruno con-
tacted Larry Richardson , an official of the Charging Union,
with respect to organizing the employees working at the Re-
spondent's lumber yard . The union official gave Bruno au-
thorization cards , whereupon Bruno commenced to solicit his
fellow employees to sign these cards with the eventual pur-
pose of having the Union represent the employees in collec-
tive-bargaining negotiations with the Respondent . Bruno suc-
ceeded in having approximately 35 of the 40 employees in the
Respondent's production unit sign union cards. During the
course of the organizational campaign , Bruno attended one
or two union meetings ; the last one he attended was held a
few days before his termination.
On June 19 , he left work at about 4 p.m., a half hour or
so before quitting time, and went home . While he was at
home, he received a telephone call from Paul Wood, secre-
tary-treasurer and part owner of the Respondent Company.
Wood asked him what he was doing at home during working
hours, and when Bruno answered that he had "clocked out,"
Wood told him to come down to his office immediately.
Bruno arrived there at approximately 4:30 p .m., and Wood
asked him how many hours he had worked that past week.
When Wood questioned the veracity of Bruno 's statement
that he had worked the required number of 40 hours, Bruno
then suggested to Wood that he have Bruno 's supervisor,
George C. Bryant , come to the office in order to confirm
Bruno's statement that he had worked 40 hours that week.
Wood refused to check with Bryant, telling Bruno he was
fired . When Bruno asked the reason for his discharge, Wood
replied, according to Bruno , "You're fired for stealing the
wire." This was in reference to Respondent 's allegation in its
answer, that Bruno had "breached Company policy by
removing merchandise from the plant 's premises without ob-
taining a sales ticket and paying for the merchandise."
Bruno testified he told Wood that if he continued to accuse
him of stealing the wire , he would sue him because he had
paid the Company for the wire by personal check on June 17,
the day following his purchase of the wire. According to
Bruno, Wood then said, "The only reason you paid for it was
because you were caught ." Bruno testified he then told Wood
that his accusation that he stole the wire was not the truth
and the real reason Wood was firing him was because of
Bruno 's union activity , to which, Bruno further testified,
Wood replied that he didn't know what Bruno was talking
about . It was then, Bruno states, that Wood told him that he
knew Bruno was the instigator of the Union. The discussion
ended when Wood again told Bruno he was fired , whereupon
Bruno left Wood's office.
Bruno denied the many reasons alleged by the Company
for his discharge, stating that none of them were true. With
respect to the Company's charge that he removed wire from
the plant without paying for it, Bruno stated he went into the
company's retail store on June 16 , and told Wilson, the sales-
man, that he wished to purchase some electrical wire for his
personal use . Wilson, testified Bruno, sold him the wire,
whereupon Bruno told Wilson that he did not have his check-
book with him but that he would come in the following day
and pay Wilson . Those present when this occurred , states
Bruno, were Creasey and Childers, the company's book-
keeper . Bruno testified Wilson gave him the wire, which he
placed in his truck that was parked on the Company's prem-
ises, and that it remained there the entire day until he drove
it home after work. The following day, June 17 , Bruno went
back into the store and paid for the wire by check.
Regarding the charge by the Company that he repeatedly
failed to obtain purchase orders when he purchased parts
from dealers for repairing various company machines, Bruno
denied that he was never notified at any time while employed
by Respondent, of any company policy that required him to
first obtain a purchase order when he bought parts needed to
repair company vehicles.
He further denied that he failed to obey the instructions of
his supervisor , George Bryant, not to park his truck on com-
pany premises. Bruno testified that when he was asked not to
park his truck in the plant yard, he immediately removed his
vehicle and never parked there again.
He further denied he ever exhibited a "belligerent attitude"
when discussing with his supervisors his request to take his
vacation at a specified time . Bruno's version of this incident
is that he "discussed" with Ray Eickhoff, his supervisor,
when it would be convenient for him to take his vacation, and
that Eickhoff had agreed he could take his vacation at the
time that Bruno had requested.' However, Wood, the com-
pany official , refused to agree to the time approved by Bruno's
supervisor, whereupon Bruno discussed the matter with
Wood. Bruno's testimony continues : "We were both hot un-
der the collar and he looked like he was going to beat me up,
and I said, `You don't scare me,' and he said , `Let's start
again,' and he settled down and so did I,' " whereupon Wood
told Bruno that he would consider his vacation request.
Later, Creasey, the general manager , notified Bruno that it
was agreeable to Wood for Bruno to take his vacation at the
time he had requested.
3 Eickhoff left Respondent 's employ on May 1, 1970.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another reason alleged by the Company for Bruno's dis-
charge, namely, that he had threatened harm to Creasey,
general manager of the plant, if Creasey "did not get off
[Bruno's] back," was denied by Bruno. Bruno did admit that
he had told his immediate supervisor, George Bryant (who
succeeded Eickhoff), that if Creasey didn't get off his back,
something might happen to Creasey. Bruno explained that
what he meant by this was that, if Bryant did not "get
Creasey off [Bruno's] back" that Bruno would quit, but in
making this explanation, Bruno denied he ever threatened to
use physical violence on Creasey.
Finally, Bruno denied that he had ever falsified his time-
cards. He stated that he had worked all the hours that his
timecards reflected. He explained that while working at the
mill, he had incurred a back injury and that he had arranged
with both Ray Eickhoff and George Bryant, his supervisors,'
to visit the doctor during working hours as that was the only
time the doctor was in his office. When Wood would not agree
to Bruno's not being charged for the time required for the
doctor to treat him, it was agreed by Eickhoff, and later by
Bryant, according to Bruno, that he would work right
through his lunch hour without interruption in order to make
up for the time he spent at the doctor's office receiving treat-
ment for an injury alleged by Bruno to have been incurred in
performing company business.
In denying all the derelictions of duty ascribed to him by
Respondent, Bruno testified that during the entire time he
was employed by Respondent, a period of approximately 23
months, he had never been criticized, or been given any oral
or written reprimands regarding the quality of his work or
work habits by either his supervisors or Wood.
Paul R. Wood has been secretary-treasurer of Wood Broth-
ers & Halstead Lumber Company for the past 8 years. On
Friday, June 19, 1970, at about 9 a.m. (the day on which
Bruno was discharged), Wood received a letter from the
Union requesting recognition as bargaining representative for
the approximately 40 men employed in the production area.'
When Wood was asked when he first learned of Bruno's
union activities, he answered,, " ... When I was firing him,
and he said something to the effect that he knew I was firing
him for union activities." However, at another point in his
testimony, Wood contradicted himself by stating that some-
time between 8 and 10 o'clock on the morning of June 19, the
same day he received the union's letter at 9 a.m. requesting
recognition, he had learned by "hearsay" that Bruno was
attempting to organize a union at Respondent's plant. Wood
stated that Jewell Creasey, general manager of Respondent's
lumber mill, had told him he had learned from Ray Eickhoff,
who was formerly supervisor of Respondent's mill from 1965
until May 1, 1970,' that Bruno was engaged not only in
soliciting the lumber mill employees to join the Union, but he
had also obtained "some signatures" on union cards. Creasey
also informed Wood that,Eickhoff told him the Union had
given a beer and sandwich party and had invited "a number
of the company's employees" to attend it and a meeting on
June 16.' Wood also testified that William L. Rhea, manager
of the Company's retail store, corroborated Creasey's story
Bryant succeeded Eickhoff as Bruno's supervisor when Eickhoff left the
Company's employ.
' Noteworthy is Respondent's notifying about 20 of these employees on
Friday, June 19, a payday, that they were being laid off due to economic
reasons.
, Eickhoff returned to work for Respondent on July 1, and on or about
September 20, was promoted and placed in charge of a manufacturing plant
which the Company had recently established
6 See G. C. Exh. 2, specifically the handwritten portion of that letter.
on June 19, prior to the time he discharged Bruno later that
same day.
On June 25, Wood wrote a letter to the Union in which he
stated that he contested the Union' s claim that it represented
Respondent's employees. He also "demand[ed]" to be ad-
vised whether the Union served any alcoholic beverages to
the employees of the Company prior to the Union obtaining
their signatures on the union cards which authorized the
Union to represent the employees for collective-bargaining
purposes. Wood's letter also "demand[ed]" an "explanation
as to what precautions were taken to avoid the consumption
of alcoholic beverages by minor children in attendance during
the above mentioned meeting." Wood also "demand[ed]" of
the Union "a certification" that no alcoholic beverages were
served or consumed by any minors at the union meeting. He
concluded his letter by stating, "I contend that any signatures
obtained in the foregoing above mentioned manner will be
held invalid by the Courts of the United States of America."
When Wood was asked whether the Company's refusal to
bargain with the Union was based on the fact that he assumed
that intoxicating liquors were served to minors at the union
meeting, he answered as follows:
When I was confronted with the problem of the union
trying to organize me , naturally I, like anybody else,
objected to being organized, and was trying to figure out
a way to get out of being organized. I truly heard, you
know, the report about the beer and sandwich party. I
did not know it, but I felt that had they had a beer and
sandwich party, and that if some minors were in attend-
ance at that meeting, and if they had possibly served
intoxicating beverages, then I felt honest to God that no
court in the United States would make me negotiate with
the union on the basis of the signatures that they had.
This was strictly an assumption on my part, but I am
sure that you or anybody else that has been in a card
game before play[s] every card that you can play to your
advantage.
In reply to a letter from the National Labor Relations
Board Regional Director, requesting his version of Bruno's
termination, Wood wrote the following letter dated June 25:
Reasons for dismissal of Joseph Bruno:
The mill foreman never authorized Joe Bruno to work
straight through his lunch hour nor did he authorize him
to work overtime. Mr. Bruno did have an agreement
with the mill foreman that he would make up the time
spent going to the doctor's office so that he would not
lose any wages.
The mill foreman has had the position of mill foreman
for less than 60 days, and having approximately forty
men working for him, it was quite difficult for him to
examine every time card individually, and since Mr.
Bruno had been here quite some time the mill foreman
felt surely he could be trusted to account for his hours
accurately and honestly. It is apparent that Mr. Bruno
found a weakness in our system and began taking advan-
tage of it.
On the following days Mr. Bruno claims to have worked
straight through without a lunch hour: 6-1-70, 6-2-70,
6-4-70, 6-5-70; the week of 6-8 through 6-12-70, Mr.
Bruno was on vacation; 6-16-70, 6-18-70, 6-19-70.
The following is a list of dates which Mr. Bruno went to
the doctor or claimed that he went to the doctor and also
the hours reported for that shift. We think it quite signifi-
cant to note that Mr. Bruno has not shown any reduc-
tion in these hours for time off spent at the doctor's
office.
WOOD BROS. 651
This letter (G.C. Exh . 4) then lists various dates on which
Bruno allegedly went to the doctor 's office and the hours he
reported for that shift. Wood stated in this letter his version
of the wire incident and disavowed any knowlege of Bruno's
union activity.
Wood testified that on the day he fired Bruno , he asked him
to explain the reason why his timecard did not reflect the
length of time he was away from his work when he was
supposed to have been at the doctor 's office receiving treat-
ment. His testimony continues that he also "confronted"
Bruno and accused him of having taken merchandise from
the Company 's retail store on June 16 , while knowing that
such action was contrary to company policy . Woods' tes-
timony reads that Bruno not only denied he had falsified his
timecards but he also offered no explanation as to why his
timecards did not show the time spent in going to and from
the doctor's office . Wood testified that when he accused
Bruno of having "taken merchandise ," Bruno told him that
he intended to pay for the wire and did so the following day
and that he would take a lie detector test to prove it. Wood
then testified as follows:
Mr. Bruno said, "I know why you are doing this," some-
thing to that effect , and I at that time said , "Why?" He
said, "Because some of the boys in the yard told me you
were going to fire my ass for union activities ." My re-
sponse was , "What union activities ." He said , "I swear
to God I haven 't anything to do with the union ," and so
forth , and I said, "Well, this doesn 't have anything to do
with the union." And then he was discharged.
When it was pointed out to Wood by the General Counsel's
representative that it appeared at the time he fired Bruno he
knew that Bruno had been engaged in union activities, Wood
explained that this knowledge was "hearsay information and
he couldn 't honestly say whether it was credible or not."
Wood denied Bruno 's testimony that the Company had
agreed Bruno would be compensated by the Company for
overtime work which he did . Bruno's version is that it was
agreed by his then supervisor, Eickhoff, that for any overtime
work which he put in he was to be compensated in the form
of merchandise he might select , from the Company 's retail
store. He testified that he also took his overtime in the form
of compensatory leave , which was sanctioned by Eickhoff.
Eickhoff told him, according to Bruno , that he should keep
track of his overtime and note it on the reverse side of his
timecards . This he did, states Bruno , which accounts for
penciled numbers on some of General Counsel 's Exhibits 5(a)
to 5(k), his timecards. Bruno testified that Eickhoff told him
to inform Childers, the Company 's bookkeeper, of this ar-
rangement , which he did . Bruno claimed that at the time he
was fired, he had 17 or 18 hours of overtime to his credit,'and
that Wood knew about it because it was mentioned in' the
office when Wood fired him. Moreover, in January 1969,
Eickhoff agreed that whenever he used his own' truck on
company business , he should note on his timecard ' the
amount he expended to cover "mileage or gasoline." This
arrangement was also agreed to, stated Bruno , by Eickhoff s
successor, Bryant. See above , wherein Wood's letter mentions
an agreement that Bruno could make up the time he spent
going to the doctor 's office.
Wood denied the truth of Bruno's testimony that the Com-
pany had agreed whenever he used his personal truck on
company business , the Company would compensate him for
the use of his truck . Wood testified there may have been
occasions when Bruno used his own truck for company busi-
ness and he was compensated , but this was infrequent, as it
was understood that only company vehicles were to be used
on company business . Wood stated that if Bruno had re-
quested compensation " ... he would probably have been
reimbursed."
Regarding Bruno allegedly falsifying his timecards, it ap-
pears that the employees' timecards are turned in each Friday
morning by the supervisors to the bookkeeper in order for her
to prepare the employees ' weekly paychecks. After the time-
cards were delivered to the bookkeeper on the morning of
Friday , June 19 , which was subsequent to the time that Wood
received the Union 's letter requesting recognition , he asked
his secretary to telephone the doctor's office to verify the
dates and times that Bruno alleged he was at the doctor's "for
claimed injuries" sustained on the job . Wood testified that he
wanted this information because the Company had never
granted Bruno permission to take time off to visit the doctor
during working hours . Wood's testimony reads as follows:
On the morning of the 19th when the wire was removed
from the store, I went down to the mill on a routine trip
and when I was there Bruno was gone , so I stepped up
to the mill foreman and I asked him, "Where is Bruno,"
and he said, "He's gone to the doctor 's office," and I
said, "Well, does he deduct this off his timecard when
he's gone," and he said, "Well, I guess so. I have never
checked him ... it was my understanding that the yard
foreman ... would [remove the time spent in going to
the doctor from Bruno's card] 7
Bruno testified that on June 19, the day he was fired, he
began work at 7:30 a .m., a half hour early , worked through
his lunchtime, and when he left work at 4 p.m. that day,
Bryant saw him leaving and said nothing . Bruno testified that
when Wood accused him of leaving work early on June 19,
he denied it, stating he had come to work a half hour early
and that he took no time off for lunch . He requested Wood
to check this with Bryant, but Wood refused . Moreover,
Bruno testified , Bryant approved his timecard for the week
ending June 19 by initialing it.
On examination by Respondent 's counsel, Wood testified
he learned from George Bryant , Bruno's immediate super-
visor, that Bryant told him on June 16 that Bruno was going
to the doctor because of a back injury . It was on that date (not
June 19), Wood testified, that he asked Bryant if Bruno was
charging the Company for the time that he was at the doc-
tor's, to which Bryant replied , "I guess he is."
Although the record is clear that when Bruno "took mer-
chandise" from the company 's store , the store clerk not only
knew of this but also agreed that Bruno could pay for it the
next day, yet it appears at the outset of Wood 's testimony that
he meant to give the impression that Bruno had stolen electri-
cal wire from the Company 's store . However, when he was
under examination by his counsel , he stated that Creasey, the
general manager, informed him on June 16 that Bruno "had
removed merchandise from the store and had put it in his
pickup and locked it in there." It was then , Wood testified,
that he checked the store records in order to determine
whether Bruno had charged or paid for this merchandise.
When investigating the incident, he inquired of Wilson, who
is employed in the company store , as to what were the facts.
Wood testified Wilson told him that "Bruno had come and
got some wire and told him that he would pay for it later."
Wood continued that , "We ... cautioned [Wilson] not to
say another word about this to anyone and then ... we had
our suspicions like anybody else has them, and we felt if we
were to watch, we might be able to find other evidence on
Bruno 'and bring him in and elicit a confession ... The
following morning, Creasey came in and said that Bruno had
paid for the wire."
' It is uncontradicted that the wire incident occurred on June 16, and
Wood so testified at other parts of the record.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wood then stated that another reason for discharging
Bruno was his violating company policy by parking his truck
on company premises. Wood testified that around the 1st of
May, he ordered Bruno to remove his truck from the yard.
Bruno complied, explaining that the Company's then fore-
man, Eickhoff, who had since left its employ, had given him
permission to keep his truck in the yard.
Wood next testified about a conversation he had with
Bruno in the "Spring" regarding the time when Bruno could
take a vacation. Bruno requested that he be allowed to take
his vacation early as he wanted to use the time to do some
cement work around his house before the hot weather set in,
when it would be difficult to pour cement! Wood stated he
told Bruno that his request would be given consideration and
that he would notify him later. When Wood was asked by his
lawyer what Bruno's "behavorial attitude" was, Wood an-
swered, "I observed him to be abrupt, boisterous, and his
language was probably a little foul."'
Wood also testified that about May 1, the company issued
a "verbal directive" prohibiting any employee from making
purchases on behalf of the Company without first obtaining
a written purchase order from a company official. Wood
testified he learned from Creasey that Bruno repeatedly vi-
olated this oral directive and that Creasey had told him he
notified Bruno several times that "he was having a hard time"
getting Bruno to come in and get a purchase order for every-
thing that he was purchasing at other stores for the Com-
pany's use.10
Wood, in summing up the reasons for firing Bruno, testified
that it was because of the wire incident "by [Bruno's] breach-
ing company policy which prohibited removing the wire from
the premises without a ticket"; falsification of timecards when
Bruno "quit" early on Friday afternoon, June 19, when he
went to the doctor's, and he did not deduct the time he spent
at the doctor's office, and "he was also shorting me an hour
on that day," 'and also "his belligerent attitude." Wood, in
concluding his testimony when he was under "redirect" ex-
amination by the General Counsel's representative, conceded
that he did not discharge Bruno until after he received the
Union's letter and after Creasey and Rhea, company super-
visors, had' advised him that Bruno was responsible for the
union activities at the mill.
When Wood was asked what his reaction was when he
learned from Creasey that Bruno was actively involved in
union activities, he answered, "Well, probably no different
than I felt when I got the [union] letter. I was kind of shocked
that we were trying to be organized.... My testimony is the
fact that I was upset because I was being organized. I was also
upset with Mr. Bruno for his previous union activities, and
it might probably have been something to the effect ... my
feeling might have been something to the effect of, Well,
suspicions confirmed."
Jewell A. Creasey, who has been general manager of the
Respondent Company since May 1970, testified about a con-
versation he had with Ray Eickhoff, a former employee,
which corroborates Wood's version of this incident." Creasey
stated he met Ray Eickhoff at a bar at about 11 a.m. on June
19, and his testimony reads as follows:
Ray said that Bruno was working with the union and he
was trying to organize us and he was going to give us
trouble, and I said, "It doesn't make any difference to
me. Bruno is on his way out, anyway, for padding time-
Bruno took a week's vacation beginning on June 8, 1970.
See above for Bruno's version of this incident.
10 See above for Bruno's version of this incident.
11 See above.
cards and taking merchandise without tickets," and that
was the end of the conversation there and we went on to
talk about Ray [Eickhoff] getting a job someplace else.
Creasey then returned to the shop at about 11:30 a.m. and
told Wood about his conversation with Eickhoff.
On June 16, testified Creasey, he observed Bruno going out
of the company store with a roll of romex electrical wire. His
testimony continues:
I went inside, checked the tickets, cash and charge tick-
ets, to see if it had been charged and looked around and
about that time, Mr. Wood come in and I talked to him
about it.12 I didn't find any charge for this wire in any
way, cash or charge.
Creasey stated that he and Wood then spoke to Wilson, who
is the store clerk," ... and told him not to say anything about
this as they wanted to keep it quiet and maybe they could run
down other material which was missing because the company
policy is that no goods leave the store or the premises without
a purchase order, cash ticket or charge ticket." Wood then
said, according to Creasey, "Let's hold down and see if we
can't find out more information about the other material and
maybe we can get a confession [from Bruno] on the other
material that is missing from the store." Wood then said,
continued Creasey's testimony, that he was going to fire
Bruno but he "wanted to find out if we could get some of the
merchandise back or get a confession out of him."
Creasey acknowledged that Wilson, the store clerk, was
present when Bruno came into the store and that Bruno took
the wire out of the store with Wilson's knowledge and con-
sent. Creasey also admitted that Wilson was not reprimanded
for permitting Bruno to remove the wire from the store.
Wilson, who' has been employed by the Respondent since
1946, testified that on June 16, Bruno came into the store and
said he needed some electric wire and "I told him it was on
the counter, to go ahead and help himself and take out what-
ever he wanted." Wilson continued that Bruno selected the
kind of wire he wanted and told him that "he was going to
take it out to the truck and pay for it later." Wilson testified
that he did not advise Bruno it was company policy not to
remove any merchandise from the store without a cash or
charge slip. Wilson concluded his testimony by stating that
as Bruno left the store with the wire, Wood and Creasey were
entering the store.
On either June 16 or 17, Creasey testified that he spoke
with the Pinkerton Detective Agency to inquire of them if
they would consider investigating these thefts. John D. Rush,
manager of Pinkerton's, confirmed that he spoke to Creasey
"in June" hstating it was he who first called Creasey to ascer-
tain if their guards who patrolled Respondent's premises were
performing satisfactorily. After this phase of the conversation
concluded, Creasey told him, Rush testified, that they be-
lieved Bruno "was involved in some kind of theft activity at
the plant and [Creasey] asked what, if anything, we could do
to, help him remedy the situation."No action was taken as
Rush indicated that Pinkerton's services were "costly,"
whereupon the conversation concluded when Rush suggested
it would be more practical to terminate Bruno.
Ray Eickhoff was employed by Respondent from Novem-
ber 1965, to May 1, 1970, when he left, at which, time he held
the position of supervisor of the mill. He returned to work for
Respondent on July 1, 1970. It was he who informed Creasey
on June 19, of Bruno's role in the union organizational cam-
paign at Respondent' s! mill . See above. About 2 weeks later,
on July 1, Eickhoff returned to work for Respondent and on
11 The transcript reads that it was Bruno who "come' in." This is an
obvious error, as the remainder of Creasey's testimony, at page 107 in this
transcript, shows he was referring to Wood.
WOOD BROS.
September 20, he was promoted to the job of manager of a
new plant that Respondent had opened. Eickhoff denied that
he had informed Creasey of Bruno's major role in organizing
Respondent's employees with the hope that Respondent
would reemploy him. The following colloquy then occurred
between the General Counsel's representative and Eickhoff:
Q. What prompted you to tell Mr. Creasey about
Bruno organizing the shop?
A. Chitchat, just like you said.
Q. Called him up on the spur of the moment at 9
o'clock in the morning, said you'd meet in a bar just for
the purpose of chatting? Is that your testimony?
A. That's right, and also this man was trying to help
me get a job, which there weren't any avilable at that
time, not even through 2093.[Here referring to the
Charging Union].
William L. Rhea, manager of Respondent's retail store,
testified that on June 19, between 10 and 11:30 a.m., he told
Wood he had learned from an employee about the union
meeting and beer party and that this employee, Leroy
Thacker, said that, "Joe Bruno had asked him to sign the
union card."
George C. Bryant has been employed by Respondent since
March 1970, and was promoted to "mill foreman" on May
1, 1970, at which time he became Bruno's immediate super-
visor. His testimony corroborates that of both Wood and
Creasey. He testified that shortly after May 1, Bryant had a
conversation with Bruno in which the latter informed Bryant,
upon his becoming a foreman, that he had been going to the
doctor twice a week during working hours for a back injury
incurred when he fell off a company truck. Bryant, when he
first testified, stated he voiced no objection to Bruno's con-
tinuing to see the doctor during working hours. Later, in
response to leading questions by Respondent's counsel, he
amplified his answer by expanding it to include the admoni-
tion that he told Bruno to deduct from his timecard the
length of time he was away from work while going for medi-
cal treatment. Bryant claimed that after he had this conversa-
tion with Bruno, the latter did not deduct the time he was at
the doctor's, and he reprimanded him for this on the morning
of June 19. Bryant's testimony continues that at or about 10
or 11 o'clock on June 19, he reported to Wood and Creasey
that Bruno was not deducting from his timecards the time he
spent away from work receiving medical treatment. Wood
ordered him to run a check on Bruno's timecards which,
testified Bryant, he did. It is undenied and admitted by Bry-
ant that he initialed Bruno's timecard for the pay period
ending Friday, June 19. Bryant, in testifying, admitted also
that Bruno had told him he had some arrangement with
Eickhoff about the manner in which he would make out his
timecards but he did not recall the details.
Bryant also testified that Bruno, in speaking to him about
Creasey, referred to Creasey as "the son-of-a-bitch," and
threatened that " ... if he [Creasey] didn't get off his [Bru-
no's] back, he [Bruno] was going to quit. `In fact, if he don't
get off a lot of people's backs around here, he's liable to get
killed...' ... I said, `What do you mean by that,' and he
said, `Well, a forklift could run over him, or drop a bundle
on him, or a bundle could fall over him.' 13
Bryant corroborated Bruno's being told not to park his
truck on company premises and testified that he told Bruno
on one occasion to obtain purchase orders when buying parts
used in repairing company vehicles. Bryant concluded his
testimony by contending that he did not learn about union
activity at the mill until June 23 or 24, " ... the following
11 See above for Bruno's version.
653
week that we laid off the men on June 19." See footnote 4,
supra.
Bryant denied Bruno ever claimed he was entitled to com-
pensation for using his own truck on company business. On
one occasion, testified Bryant, when the company truck was
in use and Bruno needed it to get some parts, he told Bruno
to take the company truck as soon as it became available, but
Bruno said, " ... he would rather drive his own truck and
pay for his own gas than to drive that damn company pickup
around town."
Doris Childers, who has been Respondent's bookkeeper for
the past 5 years, denied there was any arrangement between
the Company and Bruno whereby he was to receive compen-
sation in the form of merchandise, or in any other manner,
for overtime that he worked, or for using his personally
owned vehicle on company business. All time worked by
Bruno, she testified, was paid him by check and not by his
receiving merchandise, as Bruno testified, in compensation
for overtime work, or for the use of his truck."
Contentions
There is here presented a situation in which the representa-
tive of the General- Counsel alleges that Bruno was dis-
charged because of his union activities. In substantiating this
conclusion. General Counsel stresses the fact that Bruno was
the sole union organizer and he alone was responsible for
securing the signatures of employees on union cards. Also,
General Counsel emphasizes that only after Wood learned of
Bruno's union activities, when Eickhoff informed on Bruno,
and the Company had received the Union's letter requesting
recognition, which confirmed Eickhoff's report of Bruno's
union activities, was Bruno immediately discharged. Further-
more, argues General Counsel, if Bruno were as vulnerable
to discharge and had in fact committed all the offenses at-
tributed to him, he would not have remained in the Com-
pany's employ until June 19, after a period of working for
Respondent about 2 years. Finally, contends General Coun-
sel, when carefully examined, the "Company's defenses have
no substance but appear to be part of an orchestrated effort
to smear Bruno to justify the pretextual discharge."
The Respondent, on the other hand, strenuously denies
that Bruno's discharge was discriminatorily motivated and
contends, per contra, that Wood had decided to discharge
Bruno on June 16, when he learned of the wire incident and
at a time when he had no knowledge that Bruno was engaged
in union activities. Corroborative of this assertion is the fact,
contends Respondent, that Creasey discussed Bruno's "tak-
ing the wire" with a Pinkerton representative. Finally, argues
Respondent, it had valid grounds for firing Bruno when he
left work about an hour early on June 19. In conclusion,
Respondent asks that the complaint be dismissed as Bruno
was discharged for good, sufficient, and valid cause.
Issue
Whether Bruno engaged in such flagrant acts that would
justify the discharge, or whether he was discharged for his
union activities.
Credibility Resolutions
The issue of motive here, namely, was Bruno terminated
for engaging in protected activities , or for good cause, is a
pure fact question. And such a question is seldom capable of
patent demonstration. However, the Board and the courts, in
passing upon it, have held that consideration may be given to
1' Bruno testified he was paid for overtime in the form of a stovehood,
a ladder, and a shower door purchased at the Company store.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstantial evidence, as well as to that which is direct as
evidence of a purpose to violate the statute, is rarely obtain-
able.15 In arriving at the conclusions hereinafter stated, the
trier of these facts did not consider the incidents herein de-
scribed separately and in isolation. They were considered
compositely and inferences were drawn which were justified
by their cumulative probative effects. So considered, the tim-
ing of Respondent's activities, with reference to Bruno's dis-
charge was, it is believed, highly significant. As was stated in
N.L.R.B. v. Melrose Processing Co., 351 F.2d 693 at 698
(C.A. 8):
It would indeed be the unusual case in which the link
between the discharge and the union activity could be
supplied exclusively by direct evidence. Intent is subjec-
tive and in many cases the discrimination can be proven
only by the use of circumstantial evidence. Furthermore,
in analyzing the evidence, circumstantial or direct, the
Board is free to draw any reasonable inferences.
Therefore, whether or not Respondent was discriminatorily
motivated must be determined from the record as a whole.
The witnesses for the General Counsel and Respondent are
in conflict as to some of the salient issues in this case. Never-
theless, after observing the witnesses testify, and analyzing
the record and inferences to be drawn therefrom, this conflict
in testimony is resolved in favor of the version told by Bruno,
who was a persuasive witness. One important objective in-
dicium is Respondent's union animus, as Wood admitted that
he was "shocked" when he learned that not only was the
Union attempting to organize the mill, but also that Bruno
was the instigator, and proponent of the union movement.
Moreover, the six defenses averred by Respondent strain
credulity and are not consistent with the attendant circum-
stances in this proceeding nor with the union animus dis-
played by Respondent, as hereinafter explicated.
The testimony of Wood, Creasey, and Bryant left much to
be desired," while Bruno impressed the trier of these facts as
being truthful and straightforward in his testimony. The im-
pression that he was testifying truthfully became a conviction
when his, version of what transpired was found, in the main,
to be both consistent with the attendant circumstances in this
proceeding and not substantially shaken by able counsel for
the Respondent who vigorously, searchingly, and thoroughly
cross-examined him.
Discussion and Conclusions
It is well settled that an employer may not discriminate
against employees for supporting or organizing a union:
The question of organization by the employees for the
purpose of collective bargaining is the exclusive business
and concern of the employees. It is the mandate of the
statute that the employer shall not intrude himself into
the picture. The slightest interference, intimidation or
coercion by the employer of the employees in the rights
guaranteed to the employees by the statue constitutes an
unfair labor practice ....17
In the present case, the record shows that prior to the
advent of the Union, the necessity to obtain purchase orders
for all purchases made for company use had been nonexistent,
or perhaps lenient and flexible. After union activity began at
the mill, the Company imposed more stringent work rules on
15 N.L.R.B. v. Herman Sausage Co., 275 F 2d 229 (C A. 5)
16 As evidenced by Bryant's incredible testimony that Bruno preferred
using his own truck rather than the company truck , even though it entailed
paying money out of his own pocket for the gas and oil consumed on
company business.
" N.L.R.B. v William Davis Co., 135 F.2d 179, 181 (C.A. 7).
Bruno and evidently toughened and rigidified its policy with
respect to purchase orders, assuming there was such a policy
extant, so that what was formerly condoned later became
intolerable when the Union arrived on the scene. The record
further establishes that the Company, for the first time,
adopted a stringent policy concerning the parking of em-
ployees' cars in the millyard, and that this trivial offense,
which Bruno immediately complied with the first time he was
told not to park his car in the millyard, was seized upon by
Respondent as one of various fictitious reasons ascribed for
discharging him. These two trivial transgressions being the
basis for the discharge of the prime union activist in the midst
of the union campaign establishes Respondent's hostility to-
ward Bruno and goes a long way toward showing a dis-
criminatory motive in the firing of Bruno under circum-
stances that would not otherwise call for such drastic action.
The Company also maintains that it discharged Bruno,
inter alia, because of his "belligerent" attitude toward his
superiors. Bruno's version of this incident, which Respond-
ent's official, Wood, characterized as evidencing Bruno's
"belligerency," is that he became angry when Wood would
not allow him to take his vacation at the time he requested.
Wood later granted Bruno's request. Wood testified that he
based Bruno's "belligerency" on his "observ[ing] [Bruno] to
be abrupt, boisterous, and his language was probably a little
foul." This petty incident merited no more than disciplinary
action as distinguished from his termination, and further
makes the Company's defense that Bruno had committed
serious infractions of company rules appear to be merely a
post hoc rationalization.
Significant also is the cogent fact that Bruno was never
warned that his work was deteriorating or unsatisfactory
until the occasion when Wood told him on June 19, that he
was being discharged. Moreover, Bruno was never warned
that his breach of these company rules would result in sum-
mary discharge, nor is there any evidence that these trivial
violations had become so disruptive of production and mill
discipline, or so frequent in occurrence that such a drastic
penalty as discharge was, necessary for an employee who had
an excellent record prior to his union activity. Moreover,
there is no evidence that these various rules had been written,
nor is it clear whether these various oral rules, which Bruno
was alleged to have violated, were imparted to him by Re-
spondent. Under all these circumstances, it is difficult to be-
lieve the Company's claim that it discharged Bruno for these
picayunish infractions, Thus, it can be reasonably inferred
that the real motivation for Bruno's discharge lay elsewhere,
specifically, in his active role in the union campaign.
In Shattuck Denn Mining Corp. (Iron King Branch) v.
N.L.R.B., 362 F.2d 466 at 470, the United States Court of
Appeals for the Ninth Circuit held that:
If [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 ... the surrounding
facts tend to reinforce that inference. '
In the instant case, there is ample evidence to support the
finding that the Company seized upon these insignificant rea-
sons concerning Bruno as a pretext to rid itself of a known
union activist. Moreover, Bruno had an exemplary work
record prior to his, discharge. However, when he began to
solicit his fellow employees to sign union cards, Respondent
suddenly became disenchanted with the quality of Bruno's
work. Thus, the evidence amply warrants the finding that in
discharging Bruno, Respondent was motivated in substantial
part by Bruno's union activities and a desire to dissipate the
WOOD BROS.
Union's purported majority, as well as to abort the incipient
union movement in the mill.
Significant also is the fact that on the date of Bruno's
discharge, when Wood accused him of leaving work an hour
early on June 19, and also falsifying his timecards, which
Bruno not only denied, but also asked Wood to check with
Bryant, his supervisor, as to these charges. Wood, however,
not only refused to make any such inquiry, but actually
avoided the opportunity to ascertain from Bryant if there was
any truth in Bruno's contention that he made up for the time
spent at the doctor's office by working overtime, which in-
cluded working through his lunch hour." Thus, Wood's fail-
ure to verify Bruno's version demonstrates that Wood was
not interested in learning anything which might have ex-
onerated Bruno, but only in building up a case in order to fire
him. It is true that Bruno did not deduct from his timecards
the time he spent at the doctor's office but claimed that Eick-
hoff initially, and later his successor, Bryant, had agreed that
he could make up this time by working through the lunch
hour. Corroborative of this resolution is Eickhotfs tacit ad-
mission that he had a "loose informal arrangement with
Bruno as to his keeping of his time card." In fact, Wood
admitted this to be true when he stated in his letter to the
Regional Director that "Mr. Bruno did have an agreement
with the mill foreman that he would make up the time spent
going to the doctor's office so that he would not lose any
wages." See above. Although Respondent denied any such
arrangement, Bruno's version is credited.
The Company's contention that Bruno was discharged be-
cause of his "removing merchandise from the Company store
without first paying for it" is not supported by the record.
When Bruno entered the store, he told Wilson, the store
clerk, that he wished to purchase electrical wire. Wilson told
Bruno to select the wire he desired, which he did, and in-
formed Wilson that he would pay for it the next day, which
he did. Creasey, the mill manager, admitted that the store
clerk, Wilson, was present when Bruno came into the store
and that Bruno "took" the wire with Wilson's knowledge and
consent. Creasey also testified that Wilson was never repri-
manded for this incident, although it appears from Wilson's
testimony that both Creasey and Wood were entering the
Company store as Bruno was leaving with the wire. Wilson,
who sold Bruno the wire, not only corroborated all this, but
added that he did not advise Bruno it was contrary to com-
pany policy to remove merchandise from the store without a
charge or cash slip. Assuming there existed such a policy, it
would not apply here, as Bruno told Wilson he did not have
his checkbook with him and would pay for it the next day,
which he did. Under these circumstances, it is clear that the
cumulative effect of these falsely brought charges, specified
above, warrants the inference that some other reason was
being concealed, which in this proceeding was an effort to
make a case against Bruno so that Respondent could fabri-
cate a paper record to rid itself of him because of his union
activities.
When Bruno asked the reason for his discharge, Wood
stated it was for stealing wire, but when Bruno threatened to
sue Wood for making this serious accusation, Wood changed
his story and informed Bruno it was for violating company
policy by removing the wire from the store without first
obtaining a purchase slip order. When Bruno accused Wood
of firing him because of his union activities, Wood's rejoinder
was, "Union? What union?" indicating that he knew of no
union activity. This was patently untrue, as it is uncon-
tradicted that Creasey informed Wood, before he fired Bruno,
" See above , and G. C Exh. 4.
655
of what Eickhoff had related concerning Bruno's union ac-
tivity at the mill. See above. Moreover, Rhea, manager of the
company store, had apprised Wood of Bruno's union activi-
ties on the morning of June 19. Furthermore, that same
morning, at about 9 a.m., Wood had received a letter from
the Union requesting recognition. Finally, there is the cogent
fact that Bruno had obtained signatures from 37 of the 40
production employees on union authorization cards. It is
clear, therefore, that Respondent, prior to Bruno's discharge
at 4:30 p.m. on June 19, was well aware of his union activities.
In addition to the reasons advanced by Respondent for
Bruno's discharge, which do not withstand scrutiny and are
unlikely on their face, there is the cogent fact that Wood
knew of Bruno's union activities prior to discharging him,
and that Bruno's precipitate and summary discharge that
same afternoon is more than a temporal coincidence which
can be explained on no other ground than Wood's animosity
toward Bruno, and his desire to get rid of him because of his
active role in the Union. The cumulative effect of these pre-
textual reasons asserted for Bruno's discharge is found to be
a contrived means of effecting his termination.
[W]hen every other plausible motive has been eliminated
and the reasons advanced are not persuasive, the union
activities may well disclose the real motive behind an
employer's action. N.L.R.B. v. Melrose Processing Co.,
351, F.2d 693 at 699 (C.A. 8).
The record amply establishes not only that the entire epi-
sode of Bruno's discharge shows an unmistakable aversion to
unions, but also that it was enveloped with union animus.
Wood himself testified that he "objected to being organized,"
and was "trying to figure out a way to get out of being
organized." He also expressed "shock" at the Union's organi-
zational efforts and admitted that he was "upset" with Bru-
no's union activities. Such indicia of antiunion bias, construa-
ble as unlawful hostility, are a proper and significant factor
in determining motive.
In viewing the fabricated nature of Bruno's alleged time-
card falsification and wire-stealing, conjoined with the union
animus of Respondent, as well as its haste in firing Bruno
upon learning of his union activities and receiving the
Union's letter requesting recognition, it is found that the
remaining alleged trivial reasons for Bruno's discharge ap-
pear to be afterthoughts on Respondent's part in an attempt
to justify its illegal actions and conduct. With respect to the
other trivial allegations, even if true, that Bruno violated
company rules by parking his truck in the millyard, failed to
obtain purchase orders when buying parts to repair company
vehicles, displayed a "belligerent" attitude with a supervisor
on one occasion, and saying that "something might happen
to a company official if he "didn't get' off his back,"" they
appear to be too minimal to warrant a discharge.20 Even if
Respondent's version of these incidents were credited, the
conduct attributed to Bruno is not of sufficient gravity to
serve as justification for his termination. Having thus con-
structed a paper record purporting to reflect on Bruno's
desireability as an employee, Wood then proceeded to rid the
Company of him entirely. Corroborative of this conclusion is
the fact that Wood did not advise Bruno of these allegations
when he discharged him, nor were these alleged causes men-
" Bruno's testimony that what he meant is that he would quit his job if
Creasey "did not get off his back," is credited. This appears to be a situation
where the speaker's intended meaning is often miscontrued by an unwar-
ranted inference being drawn by the auditor Moreover, it is not believed
that it can be reasonably interpreted as a direct threat of meaning to do
physical harm.
ro See above.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tioned in Wood's explanation of Bruno's discharge in his
letter to the Regional Director, with the exception of the
alleged timecard falsifications and wire theft incident." It
appears, therefore, that every indication points to these alle-
gations as being mere afterthoughts. Lending veracity to this
finding is the uncontroverted evidence that Wood did not fire
Bruno until he received the Union's letter on June 19, as
contrasted with the .fact that sometime between May 1 and
June 16, Bruno had "threatened" Creasey, parked his truck
on company premises, failed to obtain purchase orders, and
that it was on June 16, that the wire incident occurred. For
these reasons, it is found that Respondent violated Section
8(a)(3) and (1) of the Act when it discriminatorily discharged
Joseph L. Bruno on June 19, 1970.
CONCLUSIONS OF LAW
1. The Respondent is an employer 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 unlawfully discharging Joseph L. Bruno on June 19,
1970, Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
Having found that Respondent was at least partially moti-
vated in its discriminatory treatment of the above-named
individual by his activities on behalf of the Union" and
thereby engaged in unfair labor practices as set forth above,
it will be recommended that it cease and desist therefrom and
take the affirmative action set forth below, found to be neces-
sary and designed to effectuate the policies of the Act.
THE REMEDY
Having found that Respondent discriminatorily ter-
minated and discharged Joseph L. Bruno, it will be recom-
mended that it offer to him immediate, full, and uncondi-
tional reinstatement to his former, or substantially
equivalent, position without prejudice to his seniority or
other rights, privileges, or working conditions, dismissing, if
necessary, anyone hired in such job on or after June 19, 1970,
and make him whole for any loss of earnings suffered by
reason of the discrimination against him , by paying to him a
sum of money equal to the amount he would have earned
from the date of the discrimination against him until such
discrimination has been fully eradicated, less his net earnings
during the period of such discrimination. Backpay with inter-
est, at the rate of 6 percent per annum, shall be computed in
the manner set forth in F W. Woolworth Co., 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716.
Inasmuch as the discharge of employees for reasons of
union affiliation or concerted activity has been regarded by
the Board as one of the most effective methods of defeating
the exercise by employees of their rights to self-organization,
the Trial Examiner recommends, therefore, that Respondent
be required to cease and desist from any manner of interfering
with, restraining, or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act.23
Accordingly, upon the basis of the foregoing findings of
fact and conclusions of law, and upon the entire record, it is
recommended pursuant to Section 10(c) of the National La-
bor Relations Act, as amended, issuance of the following:`
1' See above.
23 N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835, (C.A 7).
23 N.L.R.B. v. Entwistle Manufacturing Co. 120 F 2d 532, 536 (C.A. 4).
24 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 102 .48 of the Rules and Regulations , be adopted by the Board and
ORDER
Respondent Wood Brothers & Halstead Lumber Com-
pany, of Phoenix, Arizona, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Mill & Cabinet Local No.
2093, United Brotherhood of Carpenters & Joiners of
America, or any other labor organization by discriminatorily
discharging any of its employees or discriminating in any
other manner with respect to their hire or tenure of employ-
ment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist Mill & Cabinet Local No.
2093, United Brotherhood of Carpenters & Joiners of
America, or any other labor organization, to bargain collec-
tively through representatives of their own choosing and to
engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
2. Take the following affirmative action which will effectu-
ate the policies of the Act:
(a) Offer Joseph L. Bruno immediate, full, and uncondi-
tional reinstatement in his former job, or if that job no longer
exists, to a substantially equivalent position without prejudice
to his seniority or other rights, privileges, or working condi-
tions, and make him whole for any loss of earnings that he
may have suffered by reason of Respondent's discrimination
against him, in accordance with the recommendations set
forth in this Decision in the section entitled, "The Remedy."
(b) Notify Joseph L. Bruno, if he is presently serving in the
Armed Forces of the United States, of his right to full rein-
statement upon application, in accordance with the Selective
Service Act and the Universal Military Training and Service
Act as amended, following his discharge from the Armed
Forces.
(c) Preserve, and upon request, make available to the
Board or its agents for examination and copying, all payroll
records, Social Security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due and rights of employment
under the terms of this Decision.
(d) Post at its premises in Phoenix, Arizona, copies of the
notice attached hereto marked "Appendix."25 Copies of said
notice, to be furnished by the Regional Director for Region
28 of the Board, shall, after being duly signed by Respondent,
be posted by it immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of receipt of this Decision, what
steps it has taken to comply herewith.26
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
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 "
26 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 28, in writing, within 20 days from
the date of this Order, what steps Respondent has taken to comply here-
with."
WOOD BROS.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which both sides had the opportunity to
present their evidence , a Decision has been issued finding that
we violated the law and ordering us to post this notice and
actually do what we say in this notice.
WE WILL reinstate Joseph L. Bruno to his former po-
sition without loss of seniority or other rights and privi-
leges and will pay him for any loss of wages he suffered
as a result of the discrimination which it has been found
that we practiced against him.
WE WILL NOT discharge or otherwise discriminate
against employees because they join or assist Local 2093
of the Carpenters Union or any other labor organization.
WE WILL respect your rights to self-organization, to
form, join, and assist any labor organization, and to
bargain collectively about terms and conditions of em-
ployment through Local 2093 of the Carpenters Union
or any other representative of your own choosing, and
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.
657
WE WILL NOT interfere with, restrain , or coerce you
in the exercise of these rights.
All of our employees are free to become or to remain
members of Local 2093 of the Carpenters Union , or to refrain
from becoming or remaining a member of said Union.
Dated By
WOOD BROTHERS &
HALSTEAD LUMBER
COMPANY OF PHOENIX
(Employer)
(Representative) (Title)
This is an official notice , and must not be defaced by any-
one.
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 compliance with
its provisions, may be directed to the Board's Office, 7011
Federal Building & U.S. Courthouse, 500 Gold Avenue,
S.W., Albuquerque, New Mexico 87101 , Telephone 843-
2508.