Yellow Freight System, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1306 (N.L.R.B. 1976)

1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yellow Freight System , Inc and Anna Allen Case 10-
CA-11302
June 18, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On January 28, 1976, Administrative Law Judge
Benjamin B Lipton issued the attached Decision in
this proceeding Thereafter, Respondent filed excep-
tions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith
The Administrative Law Judge found that Re-
spondent discharged employee Anna Allen in viola-
tion of Section 8(a)(3) and that certain statements
made to her violated Section 8(a)(1) We disagree
with both these findings
Not long after the new branch manager, McClure,
assumed his duties, he enforced an established com-
pany rule prohibiting the employment of individuals
related to each other at the same terminal Anna Al-
len knew that McClure's decision would cause her
daughter to be terminated and unsuccessfully at-
tempted to dissuade him from that action Her
daughter having been discharged, Anna Allen began
to complain to other employees that she was disillu-
sioned by what she called McClure's unjustified ac-
tion Her attitude toward other terminal employees
and McClure, about whom she had previously been
complimentary, changed Among other things, she
continually complained to other employees about
McClure's work as branch manager, said he was not
working out as the Company had planned, and
warned employees and certain people she believed
were friendly to him not to trust him She told one
employee, who apparently was her daughter's re-
placement, that everyone in the office resented her
and that her job was in jeopardy, and made uncom-
plimentary comments to others suggesting that this
particular person had a "relationship going on" with
another office employee On several occasions, it was
repeated to McClure, she called Respondent's black
clerical employees to tell them that McClure was
prejudiced against them and that she had heard him
saying as much, she warned them that his prejudice
might jeopardize their jobs and suggested to one of
them that membership in a union might give needed
protection
As indicated, concerned employees approached
Branch Manager McClure and related Allen's re-
marks to him Some of them considered her conduct
as harassing, were upset by it, and made plain their
desire that Allen stop bothering them Some sought
specific reassurances from McClure that their jobs
were not in jeopardy as Allen had told them Mc-
Clure, having no supervisory authority over Allen,
reported these incidents to Division Manager Powell,
who eventually ordered that Allen be discharged be-
cause she was creating problems
On June 11, 1975, Powell himself told Allen that
she was discharged When Allen requested a letter
stating the reasons for her dismissal, Powell ordered
the preparation of such a letter As directed by Pow-
ell, McClure explained to Cowles, vice president in
charge of sales for whom Allen worked as secretary,
what the letter should recite He told Cowles that
"she's been calling the black employees here, telling
them I hated them, that I'm going to discharge them,
and that they better join the union to protect them-
selves from me" As the letter was prepared by
Cowles, it read "I have been advised by Mr Mc-
Clure that you have called office employees of Yel-
low Freight System asking them to join the union
and that you have advised at least two of our black
employees that Mr McClure hates blacks and was
going to fire them It is therefore necessary to termi-
nate your employment as of this date "
The Administrative Law Judge found that grounds
stated in this letter "formed the essential basis of its
decision to discharge" Allen and that the discharge
was motivated in whole or in substantial part by
Respondent's knowledge that Allen engaged in union
activities We have already noted our disagreement
with the Administrative Law Judge
If Respondent discharged Allen because of the re-
ports it had received concerning the abusive and de-
rogatory remarks made by her about McClure, the
discharge was plainly for cause and not unlawfully
motivated We believe that this was the reason for
the discharge In essence, this was the reason given
Cowles by McClure for inclusion in the letter re-
quested by Allen McClure's reference to Allen's urg-
ing union membership as a protection against Mc-
Clure's alleged racial bias was, in our view, simply to
underscore the aggravated nature of the racial
charges made by Allen We think it reasonable to
conclude that it was not asserted as a separate and
independent basis for the action taken against Allen
Nor, in the circumstances, do we view any differently
the message which the letter prepared by Cowles was
224 NLRB No 181
YELLOW FREIGHT SYSTEM , INC 1307
intended to convey We note here the absence of evi-
dence of union organization by the employees or of a
showing of union animus on Respondent's part
We disagree, too, with the Administrative Law
Judge's finding that remarks made to Anna Allen on
May 22, 1975, violated Section 8(a)(1) because they
predicated Respondent's decision to discharge Mela-
nie Allen, daughter of Anna, and Betty Hildebrand,
sister of employee Mary Biser, upon the factor "in
significant part" that the office employees were con-
templating joining or were joining a union
Respondent has a nepotism rule which prohibits
employment in the same terminal of two or more
employees who are related to each other Powell or-
dered Cowles to discharge Melanie Allen and Hil-
debrand upon report from McClure of the employ-
ees' reaction to their retention Powell told Cowles
that Anna Allen's daughter was working "casual"
and other employees were complaining that they
were either laid off or not working full time and they
felt that she should not have the job or that they
should have one of the jobs filled by Melanie Allen
and Hildebrand 1
Cowles, in turn, told Anna Allen that Powell had
called to tell him that McClure said that "there were
six office employees who either had signed or
were considering signing union cards because there
were two casual employees who were also rela-
tives of permanent employees, and that these office
employees were afraid in case of a layoff, that they
would be laid off rather than these casual employ-
ees"
Viewed in isolation and read literally, this version
by Cowles of what Powell reported was said by Mc-
Clure may lend itself to an interpretation that Union
considerations motivated the discharge of Melanie
Allen and Hildebrand But a complete and accurate
understanding of it must take into account the con-
text in which Cowles' statement was made When it
is, a message reasonably conveyed is that Re-
spondent's discharge of Melanie Allen and Hil-
debrand was influenced by the legitimate economic
concerns of the employees 2 The attendant circum-
stances which provide the proper backdrop for evalu-
ating Cowles' statement are the hearsay character of
Cowles' remarks, the existence of a nepotism rule
which did require the discharge of Melanie Allen and
Hildebrand, the fact that the retention of Melanie
Allen and Hildebrand was deemed by the permanent
employees to be prejudicial to them, that these justi-
fiable concerns were voiced by the employees to Re-
1 Early in 1975 certain permanent employees were laid off and some
recalled were working part time
2 Significantly no claim is made herein that the discharges were otherwise
motivated
spondent, and the nonexistence of any union move-
ment which might be of concern to Respondent, all
this to the knowledge of Anna Allen Given these
circumstances, and the fact that Cowles' remarks
were made on a single occasion only to Anna Allen,
we are not persuaded that Respondent should be
held in violation of the Act on the basis of Cowles'
remarks alone
Accordingly, we shall dismiss the complaint
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint here-
in be, and it hereby is, dismissed in its entirety
MEMBER FANNING, dissenting
I disagree with the majority's conclusion that Re-
spondent did not violate Section 8(a)(3) and (1) and
that the complaint should be dismissed
My colleagues have ignored the clear record evi-
dence, that union sentiment was growing among of-
fice employees McClure himself testified that after
assuming his new duties as branch manager in Feb-
ruary 1975 he was approached by Teamsters officials
who told him that they had previously represented
the office employees and considered the 1972 con-
tract with the previous owner still in effect
Respondent was also aware that several office em-
ployees, dissatisfied with recall for part-time work
when "casual" clericals like Allen's daughter were
working full time, had made known their desire to
sign union cards At different times, both Cowles and
McClure told Anna Allen that the sudden decision to
follow a previously unenforced company rule against
relatives working at the same terminal was to quell
the complaints of these potential union supporters
The Administrative Law Judge found, and I agree,
that these May 22 statements of Cowles and Mc-
Clure tended to discourage union membership
among Respondent's office employees, thus violating
Section 8(a)(1) The characterization of these re-
marks as isolated comments made only to Allen ig-
nores the fact that the issue of discharge of relatives
to discourage employee unrest and de-stimulate in-
terest in unionization was kept alive by Allen who
complained to office employees that her daughter's
discharge was unjustified and attempted to discover
which employees had expressed interest in the
Union, thus leading to the discharge
I am simply unpersuaded, particularly so against
this backdrop, by Respondent's attempt to excuse as
a mere inaccuracy its blatant reference in the dis-
charge letter to Allen's having "called office employ-
ees of Yellow Freight System asking them to join the
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union " Outside the terminal on the day after
her discharge and in response to Allen's demand to
know why she was fired, McClure specifically ques-
tioned Allen only about the discussions in which she
urged employees to join the Union and, inside the
office a few moments later, when discussing the letter
with Cowles, he once again referred only to these
same conversations
I find it difficult to believe that my colleagues can
reach the conclusion that Cowles, a senior official in
Respondent's organization and Allen's immediate
supervisor, mistakenly included her encouragment of
others to join the Union in the letter, or that such
encouragment by her was not a consideration in her
discharge As Cowles testified, on that very morning
before writing the letter he met with Powell, who had
directed Allen's discharge, and Branch Manager Mc-
Clure, and was told by them why Allen (his own sec-
retary) had been discharged by them The matter was
obviously fresh in Cowles' mind when he wrote the
discharge letter requested by Allen The letter speaks
for itself
I would adopt the Administrative Law Judge's
conclusions that Respondent violated Section 8(a)(3)
and (1)
DECISION
STATEMENT OF THE CASE
BENJAMIN B LIPTON, Administrative Law Judge On Sep-
tember 3, 1975,1 this case was heard in Atlanta, Georgia,
upon a complaint by the General Counsel 2 alleging certain
independent violations of Section 8(a)(1) and the discharge
of Anna Allen in violation of Section 8(a)(3) of the Act
Upon the entire record, with due consideration of the
posthearing briefs filed by General Counsel and Respon-
dent, and from my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent maintains an office and freight terminal in
Marietta, Georgia, where it is engaged in the interstate
transportation of freight by motor carrier The Marietta
terminal, which houses personnel of Respondent's Atlanta
Branch, is the sole facility involved in this proceeding
During the year preceding the issuance of the complaint,
Respondent provided freight services valued in excess of
$50,000 directly to customers located outside the State of
Georgia Respondent admits, and I find, that it is engaged
in commerce within the meaning of the Act
1 All dates are in 1975 unless otherwise shown
2 The charge was filed and served by registered mail on June 16 and the
complaint thereon issued on July 29
II THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union No 728, affiliated with the In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, herein called the Union,
is a labor organization within the meaning of the Act
III THE UNFAIR LABOR PRACTICES
A Introduction
Anna Allen, the Charging Party, was employed as secre-
tary to Robert Cowles at the Marietta terminal for a period
of 3 years until her discharge on June 11 Until April,
Cowles was vice president and division manager in charge
of operations and sales in Respondent's Southeastern Divi-
sion, and in this capacity he exercised direct authority over
the personnel in the Atlanta Branch and the Marietta ter-
minal In April, Cowles' position was changed to that of
vice president of sales, entailing no authority over opera-
tions and no supervision over terminal personnel other
than his own secretary, Allen At the same time, the posi-
tion and responsibilities previously held by Cowles were
"basically assumed" by George Powell III operating from
Respondent's headquarters in Kansas City, Missouri Since
February, Jack McClure was employed by Respondent at
the terminal as branch manager, having certain authority
over sales and operations in the Atlanta Branch, including
immediate supervision of all office clericals in the termi-
nal-except Cowles' secretary, Allen The work of Cowles
and Allen related to that of McClure only " in a staff ca-
pacity " It is apparent that until the reorganization in
April, McClure was under the authority of Cowles Since
April, Cowles and McClure were both responsible to Pow
ell
The Union represents drivers and dock workers of Re-
spondent at the Atlanta Branch McClure testified that the
subject of a union drive involving the office clerical em-
ployees at the terminal came to his attention while he was
employed there On an undisclosed date, two officials of
the Union came to the terminal and told him "this was a
union office," claiming that when Respondent purchased
the Adley (Company) in 1972, it assumed the union con-
tract in effect with Adley covering office clerical employ-
ees McClure responded that this was a matter to be de-
termined by someone other than himself, and that his
position at the moment was that no union represented the
local office crew in Atlanta
B Section 8(a)(1)
Early in 1975, certain permanent office employees were
laid off at the terminal Among those later recalled, some
were working part time Also employed were two clericals
referred to as "casual" employees One was Betty Hilde-
brand, the sister of a permanent employee, Mary Biser
The other was Anna Allen's daughter , Melanie Allen, who
"was a permanent in the sense that she worked full time
forty hours every week ," at least during the time Mc-
Clure was there, as he testified Respondent 's testimony
indicates the existence of a nepotism rule prohibiting em-
YELLOW FREIGHT SYSTEM , INC 1309
ployment in the same terminal of two or more employees
who were related to each other 3 Cowles testified that,
shortly before May 22, Powell called to tell him that Anna
Allen's daughter "was working casual, and other employ-
ees were complaining that they were either laid off or were
not working full time, aid they felt that she shouldn't have
the job, or that they should have one of those jobs " Powell
"instructed" Cowles that Melanie would have to be dis-
charged, since sl'e was related to Anna 4 Anna Allen testi-
fied that, on May 22, Cowles spoke to her in the terminal
office He said Powell had called and told him that Mc-
Clure said-"There were six office employees who
either had signed or were considering signing union cards
because there were two casual employees who were
also relatives of permanent employees, and that these of-
fice employees were afraid, in case of a layoff, that they
would be laid off rather than these casual employees [i e,
her daughter Melanie, and Betty Hildebrand] "5 Cowles
also told her in the same conversation that some office
employees resented her having special privileges and that
he was instructed to speak to her about that, the only thing
mentioned was that she had parked in his parking space
while he was out of town
Thereafter, on the same date, Allen went into Branch
Manager McClure's office She told him the "allegations"
concerned both her daughter and herself and asked that he
inform her before firing Melanie, because Melanie needs
her job while she (Anna) has some other income McClure
said, "I am sick because I have caused this thing I
did have the report about the union sentiment, and I have
reported it I was told by George Powell, III, to let both
Melanie and Betty Hildebrand go today, but that I am so
upset over it that I'm thinking about resigning myself "
Allen responded, "if the union talk were current and accu-
rate," she felt she had done the right thing, "but if it were
just some old gossip," she felt like she "had been kicked in
the teeth in the thing" 6 McClure testified that he dis-
charged Melanie Allen on May 23, on the basis of the
"operation manual" requirement that relatives may not be
employed in the same terminal
Conclusions
Respondent was aware for a substantial period that the
two clericals, having "casual" status, are relatives of "per-
manent" employees at the terminal Nothing was done
concerning the ostensible breach of the nepotism rule until
McClure and Powell received the reports of complaints
from office employees that Respondent's retention of the
casual employees was affecting their job security and they
had signed or were considering signing union cards The
3 No manual or other document in evidence describing this rule was in
troduced
'That Powell would call Cowles instructing Melanie Allen s discharge
does not appear to reconcile with Respondent s evidence that Cowles duties
at this time did not encompass supervision of the terminal clericals
This testimony is not controverted by Cowles and is credited
McClure denied there was any discussion of the Union He thought in
this conversation she had brought up the subject of special privileges i e
her parking in Cowles place To the extent of conflict with Anna Allen s
version as shown she is credited
statements made by Cowles and McClure to Anna Allen,
on May 22, predicated the decision to discharge Melanie
Allen and Betty Hildegrand on the factor, in significant
part, that the protesting office employees contemplated or
were joining the Union Accordingly, I find these state-
ments plainly had the tendency of discouraging union
membership among Respondent's office clericals and
thereby violated Section 8(a)(1), as alleged
C Section 8(a)(3)
Testimony was adduced that, following the discharge of
her daughter, statements were made by Anna Allen to Ann
Lewis, Carolyn Hines, and Marie Dempsey, in telephone
calls to their respective homes, and to Lewis and Hines
during a luncheon they had with Anna and Melanie Allen,
that Lewis, Hines, and Dempsey informed Branch Manag-
er McClure of these conversations, and that McClure in
turn conveyed such information to Vice President Powell
Lewis, a black office clerical, testified that Anna Allen
told her, among other things, "how prejudiced" [McClure]
was, "how he really didn't like blacks If I were you
maybe I would think about the union to protect
my job and your job stuff like that " When she related
these statements to McClure, he said-"There is some prej-
udice in everybody, even me, even you, but it's nothing like
that I never worked around blacks before "
Dempsey testified, inter alga, that Allen "blamed" her for
reporting to McClure and "telling him things " Allen said,
"I hear that you are telling Mr McClure that there's a
union trying to get started in the office " Allen also asked
Dempsey, "Who are these people that's complaining about
the union9"-and was not answered
Hines, a black office clerical, testified that Allen told
her, among other things, that "McClure is prejudiced, that
he does not like blacks" and that McClure told Allen and
Cowles that he was "going to have to watch himself with
them because he had never dealt with them before " Hines
overheard Allen talking to certain dock workers during a
break,-telling them that "things weren't working out
around there like they hoped with McClure," and that
she knows "some of you have had some problems with
McClure also " And a black dock employee informed her
he was told by Allen that McClure was prejudiced, that he
wasn't running the operations, and that Cowles and other
officials were "very unhappy" with him Allen also said
that, if it were up to McClure, she (Hines) would not be
working that switchboard now, because he was prejudiced
and wanted Dempsey in that job When she informed Mc-
Clure, he said that he had never dealt with blacks before,
and was going to have to be tactful", that he "did tell
them [Allen and Cowles] that," but he did not say he would
be prejudiced He explained that-"All of us have a little
prejudice, and it's something you can't help "
McClure testified concerning the reports he received As
to Dempsey, he did not indicate anything was said regard-
ing the Union Lewis related to him that Allen told her he
"hated blacks" and was "going to get rid of them," and
that "they better join a union, or better go along with her
to protect themselves" from him As to Hines, McClure
recited virtually the identical statements that he did regard-
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing Lewis ' There were recurring conversations with Lewis
and Hines, "telling him essentially the same thing over and
over " Hines also brought to his attention that Allen had
talked to dock employees-hearsay information which
Hines had obtained from the latter Allen purportedly told
the dock employees that he (McClure) was "not to be trust-
ed," he "didn't like blacks," and "at the first opportunity
[he] would do them in " 8 He communicated to Powell all
of the complaints he received from these employees I
Vice President Cowles testified that, about May 28, Vice
President Powell called and told him that Allen had been
interfering with the local office, that she had been enjoying
special privileges, and that he should speak to her Thereaf-
ter, he asked Allen not to park in his parking place, and
"Whatever these small things were, and if she was creating
a disturbance in the office, whatever it was, not to do it any
more, because the people were complaining " Allen re-
sponded that she was not doing these things, except the
parking, that she would not park there any more, and that
she was not "interfering in the context that they said she
was " Testifying, he "had to accept that," and he "assumed
that everything was all right " 10 He was never told specifi-
cally in any conversation with Powell exactly what Allen
had done wrong, other than he has indicated in his testimo-
ny On June 10, Powell called him in Birmingham, Ala-
bama, instructing him to discharge Allen because she was
"still creating problems " He rode back and met Allen after
working hours He told her the only reason given to him
for her discharge was that she was creating "an office dis-
turbance " She said he was not going to discharge her while
she was off duty, she was coming in in the morning, and
they would have to tell her what she did and give her a
letter with reasons for her discharge
In the morning on June 11, Allen was met in the parking
lot by Powell, Cowles, and McClure Powell told her she
was fired and could not go into the terminal She wanted to
know why, as she had not been given any reason Powell
told McClure to discuss this with her McClure testified
that he asked her-"Did you advise the black employees
that I hated them and that they should join the union to
protect their jobs from me9 11 And she answered, "No "
He turned to Powell and said, "I see no sense in furthering
this discussion " Allen requested a letter stating the reasons
for dismissal Powell asked Cowles to write the letter
Cowles said he didn't know any reason to let her go Powell
instructed McClure to tell Cowles what to put into the let-
ter Cowles and McClure went into the terminal, while
Powell stayed in the parking lot with Allen Powell told her
she had been an excellent employee, he did not know what
happened, he did not understand, and he `had to take the
word of the official of his company 12 McClure testified
9 It may be noted that Hines did not testify that Allen said anything to
her concerning the Union
8 Sharply in conflict with Hines testimony
9 There is no indication that McClure attempted to discuss them with
Allen s immediate superior Vice President Cowles who was regularly there
at the terminal
10 I do not find that this conversation constituted a warning to Allen as
Respondent argues
1 Allen testified that McClure asked her if she had been calling employ
ees asking them to join the Union
that, inside the terminal, he told Cowles-"she's been call-
ing the black employees here, telling them I hated them,
that I'm going to discharge them, and that they better join
the union to protect themselves from me " Cowles testified
he typed the letter, putting in what McClure had told him,
he had McClure "review" the letter, he then signed it and
proceeded to give it to Allen 13 The letter states as follows
I have been advised by Mr McClure that you have
called office employees of Yellow Freight System ask-
ing them to join the union and that you have advised
at least two of our black employees that Mr McClure
hates blacks and was going to fire them It is therefore
necessary to terminate your employment as of this
date
The foregoing evidence stemming principally from
Respondent's witnesses, as well as the 8(a)(1) statements of
Respondent earlier found, is sufficient in this record to
warrant the finding that the grounds stated in
Respondent's letter to Anna Allen formed the essential ba-
sis of its decision to discharge her Whether Allen actually
engaged in union activities is not prerequisite for a viola-
tion, since it is clear in any event that Respondent believed
that she did
In rebuttal, Allen specifically denied that she ever told
any employee that McClure hated blacks, that they would
lose their jobs, or that McClure was "setting them up" to
lose their jobs However, there was no attempt on her part
to deny the statements concerning the Union attributed to
her by Lewis and Dempsey On June 11, when McClure
asked her if she advised the black employees that he hated
them and they should join the Union to protect their jobs,
she replied to him in the negative, as she testified There is
no allegation here of unlawful interrogation, and I do not
take her response to such a question as an attestation of the
truth In Allen's testimony, inter aka, she indicated she par-
ticipated in a discussion concerning the Union with a cou-
ple of employees, but she did not bring up the subject,
after Betty Hildebrand had been discharged, Allen called
her sister, Mary Biser, to ask if Betty would want to join
the Union, and she obtained from the Union three authori-
zation cards, which she actually used only for purposes of
her daughter, Melanie after the latter's discharge
Concerning Respondent's flat assertion that Allen was
employed as a confidential employee at the time of her
discharge, suffice it that this defense is devoid of any sup-
port 14
The other reason given Allen was that she told two black
employees that McClure hates blacks and was going to fire
[2
Powell did not testify
13 McClure testified that Cowles handed him the letter and asked Is this
what happened9 He perused the letter and answered Yeah McClure s
further testimony that he really didn t even read the letter is not credited
It may be noted that although Cowles was the direct supervisor of Allen
the discharge was ordered by Powell purportedly relying on the word of
McClure who Respondent contends had no authority over Allen Thus in
effect Cowles merely performed a mechanical act in signing the discharge
letter
14 Confidential employees for purposes of the Act are those assigned to
officials who formulate determine and effectuate management policies re
garding labor relations E g Empire Mutual Insurance Company 195 NLRB
284 (1972)
YELLOW FREIGHT SYSTEM, INC
them 15 Allen specifically denied the charge in answer to a
blanket question by McClure on June 11, and in her rebut-
tal testimony Before his decision to discharge Allen, Re-
spondent made no attempt to inform Allen of the sub-
stance of this complaint about her, and others, or to
ascertain her version in these matters And it undertook no
semblance of a reasonable investigation of any charge
against her which was being seriously considered by man-
agement On the subject of the black employees, I am in-
clined to credit the testimony of Allen In the present case
there is substantial evidence that Respondent was opposed
to union organization of the office clericals in the Marietta
terminal, and that this was a major motivating factor in its
determination to discharge Allen 16
It is my opinion on this record that a more summary
disposition may be made of the numerous other grounds
assertedly relied on by Respondent to justify Allen's dis-
charge At the hearing, Respondent disregarded repeated
cautions against exploratory expeditions, and instructions
that it could adduce only matters which it knew in advance
and relied on as reasons for the discharge Throughout, it
sought to dredge up any conceivable criticism of Allen as
contributing to its defense I find as pretextuous all of these
further grounds, principally in the form of alleged state-
ments of Allen conveyed to McClure, such as the follow-
ing That Marie Dempsey and Billy McRae had a "rela-
tionship" going on, that employee Earl Reagan was not to
be trusted because he would "tell McClure things', that
Melanie's firing was unnecessary and unjust, that Allen
praised McClure shortly after he came, but was critical of
him after Melanie's discharge, that the Company was not
happy with McClure, that Allen was parking in Cowles'
parking space while he was out of town, that Allen threat-
ened Dempsey's job, and that everyone in the office resent-
ed Dempsey just like she (Allen) was resented when she
was first employed, that Allen told a dock foreman to put
a rug down near the door because the floors were dirty and
Cowles would not like it, and in general that Allen was
"creating a disturbance in the office "
Accordingly, it is concluded upon on the evidence that,
in discharging Allen, Respondent was motivated, in whole
or substantial part, by its knowledge or belief that she en-
gaged in union activities, and by its desire to discourage
union membership among its office clericals 17 Therefore,
the violation of Section 8(a)(3) is found
15 This is not actually the testimony of Lewis and Hines supra Respon
dent also relies on McClure s inaccurate account of Hines report to him
concerning Allen s conversations with the dock workers supra
16 Cf Texberry Container Corporation 217 NLRB 58 (1975) Here it is
explicitly shown with an ample supportive background that considerations
of Allen s union activity known or believed by Respondent were directly
involved in Respondents decision
17 See e g Sweeney & Company Inc v NLRB 437 F 2d 1127 1133
(C A 5 1971) Singer Company v NLRB 429 F 2d 172 179 (C A 8
1970) United States Rubber Company v N L R B 384 F 2d 660 663 (C A
5 1967)
IV THE REMEDY
1311
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act A broad cease-and-desist
order appears warranted, particularly by reason of the dis-
criminatory discharge which goes 'to the very heart of the
Act " 18
It has been found that Respondent discharged Anna Al-
len in violation of Section 8(a)(3) It will be recommended
that Respondent offer Allen immediate and full reinstate-
ment to her former job or, if such job no longer exists, to a
substantially equivalent job, without prejudice to her se-
mority or other rights and privileges, and make her whole
for any loss of earnings suffered by reason of the discrimi-
nation against her, by payment to her of a sum equal to
that which she normally would have earned, absent the
discrimination, less net earnings during such period, with
backpay computed on a quarterly basis in the manner es-
tablished in F W Woolworth Company, 90 NLRB 289
(1950) Backpay shall carry interest at the rate of 6 percent
per annum, as set forth in Isis Plumbing & Heating Co, 138
NLRB 716 (1962) It will be further recommended that
Respondent preserve and make available to the Board,
upon request, all payroll records, social security payment
records, timecards, personnel records and reports and all
other records necessary and useful to determine the
amounts of backpay due and the rights of reinstatement
under the terms of these recommendations
Upon the foregoing findings of fact, and upon the entire
record, I make the following
CONCLUSIONS OF LAW
I Respondent is engaged in commerce within the mean
ing 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 discharging Anna Allen, thereby discouraging
membership in the Union, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act
4 By the foregoing, and by other acts and conduct in-
terfering with, restraining, and coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
[Recommended Order omitted from publication ]
18 N L R B v Express Publishing Company 312 U S 426 (1941) N L R B
v Entwistle Mfg Co 120 F 2d 532 (CA 4 1941)