Ontario Gasoline & Car Wash

National Labor Relations Board - Board Decisions

Mar 21, 1977

228 N.L.R.B. 950 (N.L.R.B. 1977)

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C.S.C. Oil Company, a Division of Cook United,
Inc., d/b/a Ontario Gasoline & Car Wash and
Retail Store Employees Union , Local 954, AFL-
CIO, Retail Clerks International Association. Case
8-CA-9745
March 21, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On July 20, 1976, Administrative Law Judge Joel A.
Harmatz issued the attached Decision in this pro-
ceeding. Thereafter, counsel for the General Counsel
and the Charging Party filed exceptions and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
i Counsel for the General Counsel and the Charging Party have excepted
to certain credibility findings made by the Administrative Law Judge. It is
the Board 's established policy not to overrule an Administrative Law Judge's
resolutions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect.
Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd . 188 F.2d 362
(C.A 3, 1951). We have carefully examined the record and find no basis for
reversing his findings
2 The Adnumstrative Law Judge declined to draw an inference of
company knowledge of employee Teetnck 's union activity based on the
small employee complement . In so doing, the Administrative Law Judge
suggested that the absence of evidence that employees informed manage-
ment of Teetrick 's action , coupled with the fact that Teetrick's union activity
took place under "covert circumstances " required the conclusion that the
Board 's so-called small plant doctrine was inapplicable. We disagree with the
Administrative Law Judge insofar as he suggests that these factors necessari-
ly prohibit drawing the inference of knowledge . Clearly, if there is evidence
that management has actually been informed of the union drive and of the
identity of the union activists , no inference of knowledge need be drawn. Just
as clearly an inference of company knowledge may be drawn in the absence
of such evidence based on the size of the employee work force among other
factors. And, in such instances , the fact that the employee union activists
took some pains to conceal their activities would not necessarily prohibit the
drawing of such an inference . See Wiese Plow Welding Co., Inc., 123 NLRB
616 (1959).
Chairman Murphy finds that the General Counsel has failed to establish
that the discharge was unlawfully motivated even if Respondent were aware
of the employee 's union activities . Therefore, she finds it unnecessary to pass
228 NLRB No. 119
on the Administrative Law Judge's Decision insofar as it discusses the small
plant theory.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This case
was heard in Toledo, Ohio, on May 10, 1976, upon a charge
filed on January 14, 1976, and a complaint issued on
February 25, 1976, alleging that Respondent violated
Section 8(a)(3) and (1) of the Act by discharging Timothy
Teetrick and John Gascon because of their union activity,
and violated Section 8(aX5) of the Act, under authority of
Trading Port, Inc., 219 NLRB 298 (1975), by refusing to
recognize and bargain with the Union as the majority
representative of employees in the appropriate unit. In its
duly filed answer, Respondent denied that any unfair labor
practices were committed. After close of the hearing, briefs
were filed by the General Counsel and Respondent.
Upon the entire record in this proceeding,) including my
observation of the witnesses while testifying, and consider-
ation of the posthearing briefs, I hereby make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
CSC Oil Company is a division of Cook United, Inc, an
Ohio corporation, with its principal office and place of
business in Louisville, Kentucky. CSC Oil Company is
engaged in the retail operation of carwash and gasoline
stations at numerous sites, including a location in Toledo,
Ohio, the sole facility involved herein. Annually, in the
course and conduct of its business, Respondent realizes
gross revenues exceeding $500,000 and receives at its
various carwash facilities and gas stations in Ohio, goods
valued in excess of $50,000, shipped directly from points
located outside the State of Ohio.
Respondent admits, and I find, at all times material, that
Respondent is, and has been, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Retail Store Employees Union, Local 954, AFL-CIO,
Retail Clerks International Association , is, and has been, at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
Whether Respondent violated Section 8(aX3) and (1) of
the Act by discharging employee Timothy Teetrick on
November 24, 1975, and employee John Gascon on
November 29, 1975, because of their union activity.
i Certain errors in the transcript have been noted and are hereby
corrected.
ONTARIO GASOLINE & CAR WASH 951
Whether in accordance with N.LR.B. v. Gissel Packing
Co., Inc., 395 U.S. 575 (1969), and Trading Port, Inc., supra
any such acts of unlawful discrimination warrant an order
requiring Respondent to recognize and bargain in good
faith with the Union as exclusive majority representative of
employees in the appropriate bargaining unit.
B. Background
Cook United, Inc., operates retail discount stores, known
as Ontario Stores. At certain of these locations, Cook,
through CSC Oil Company, maintains gas stations and
carwashes . This is the situation at the location in Toledo,
Ohio, from which the instant proceeding arises. At that
shopping area, employees of the Ontario store have been
represented for a number of years by the Union. On the
other hand, employees of CSC Oil Company involved in
operation of the gas station and carwash are unrepresented
and have no history of collective bargaining. The instant
case stems from an organizational effort among employees
at CSC's carwash and gas station.
The gas station was subject to immediate supervision of
Rick Amstutz. With respect to the carwash, it appears that
in mid-November 1975,2 but prior to the events involved
here, Gilbert Rodriguez terminated his employment as
manager of the carwash. He was temporarily replaced by a
rank-and-file employee, Mark Roberts. It was not until
November 25 that Respondent hired Roger Mock as its
permanent carwash manager.
Employees are assigned to either the carwash or gas
station , but are interchanged between the two operations as
manpower needs dictate. The first formal step in the
organization effort among the gas station and carwash
employees occurred on November 19, 1975, when Timothy
Teetrick contacted Elden T. Leedy, Jr., a representative of
the Union, and scheduled a meeting with union officials.
Prior thereto, Teetrick had discussed the possibility of
organizing with four employees.3 According to Teetrick, he
simply asked these individuals if they were interested in
getting a union at the gas station and carwash . Subsequent-
ly, on November 21, Teetrick met with two union represen-
tatives and obtained authorization cards and union litera-
ture. On that same date, Teetrick distributed the literature
and authorization cards to certain employees requesting
that they sign the cards and return them to him if they
wished to join.4 On that same day, Tarry Stoner, and John
Gascon signed authorization cards and returned them to
Teetrick. Mark Roberts did not sign his card on that day,
but later delivered his signed card to Teetrick on November
24.
Prior to any union activity, in early November, Robert
Williams, a regional supervisor of CSC Oil, was informed
by Art Feldman , a managerial official of Cook United
connected with the Ontario store in Toledo, that service at
both the gas station and carwash was not satisfactory. In
addition, it was company practice to advise the various
managers of its gas station and carwashes to be on their toes
and give good service during the holiday season when
business volume customarily increased. Consistent with the
foregoing, credible evidence established that CSC officials,
during early November, directed their attention to remind-
ing managers and employees of certain company policies in
connection with service and security and to checking
individual performance by employees. These efforts to prod
employees toward more rigid adherence to company
policies preceded, and hence were not prompted by, any
union activity.
On November 24, Teetrick, a gas station attendant, was
discharged. Thereafter, on November 29, John Gascon, an
employee assigned to the carwash, was terminated. On or
about November 27, Mark Roberts was terminated. Anoth-
er employee assigned to the carwash, Rodney Shaw, who
apparently had no connection with the organizational
effort, was also terminated in late November.
It was not until November 24, after learning of the
discharge of Teetrick, that the Union, by telegram, de-
manded that Respondent recognize it as majority represen-
tative.
Under the instant complaint, no evidence exists, nor is
there any allegation that Respondent committed indepen-
dent violations of Section 8(a)(l) of the Act. It is claimed
that the discharge of Teetrick and Gascon violated Section
8(a)(3). As the claim that Respondent also violated Section
8(aX5) is based entirely on N.LR.B. v. Gissel Packing
Company, supra, the refusal-to-bargain allegations may only
be substantiated on evidence that Respondent engaged in
independent unfair labor practices so serious as to render it
unlikely that a fair election could be held, even after
compliance with conventional Board remedies. Thus, any
unlawful refusal-to-bargain finding herein turns critically
on the existence of merit in the 8(a)(3) allegations relative to
the discharges of Teetrick and Gascon.
C. Concluding Findings
1. The alleged discrimination
a. In general
There is no direct evidence that, prior to the discharge of
Teetrick, Respondent knew of his involvement in union
activity or that an organizational effort was then underway.
In the case of Gascon, it also does not appear that
Respondent was aware of his union activity, which was
apparently limited to his execution of a union organization
card, prior to his discharge.
In addition to the foregoing the General Counsel 's claim
of discrimination is further compromised by the fact that
Cook United, Inc., has had a long bargaining history with
the Union relative to its employees at the Ontario store in
Toledo, and the further fact that there is no evidence of
union animus or a history suggesting that Respondent
harbored any resentment to employee assertion of their
statutory rights.
Accordingly, based on the foregoing, Respondent urges
dismissal of the complaint, claiming that the General
Counsel failed to meet his burden of proof since the critical
elements of knowledge and union animus are absent. The
2 All dates refer to 1975 unless otherwise indicated.
3 The four employees were Mark Roberts, John Gascon , Tarry Stoner,
and Dave Wismer. Of this group , all ultimately signed union authorization
card, except Dave Wismer.
4 Cards were distributed to Mark Roberts , John Gascon , Tarry Stoner,
Kevin Merritt , and David Wismer.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel counters with the view that a proscribed
motivation may nonetheless be inferred from the timing of
the discharge, the nature of the union activities of the
dischargees, the small size of the plant, and the incredulous
reasons assigned by Respondent for the terminations.
Persuasive authority supports the General Counsel's claim
that the missing elements in his case-in-chief do not
necessarily warrant summary dismissal of the 8(aX3)
allegations herein, and accordingly disposition of the
motivation issue turns upon full examination of the total
circumstances as set forth below.
b. Timothy Teetrick
Timothy Teetrick was initially hired by Respondent in
October 1973, when he was but 14 years of age. He worked
as a gas station attendant during the entirety of his
employment. When discharged, Teetrick was in charge of
the night shift, a rank-and-file position which did not entail
possession or exercise of supervisory authority. Teetrick's
normal work hours were from 3 until 10 p.m.
As heretofore indicated the station manager was Rick
Amstutz, who normally worked from 7 a.m. until 5 p.m.
It is a fair statement on this record that the relationship
between Amstutz and Teetrick was less than harmonious.
Amstutz described Teetrick as a poor employee, who had
failed to perform adequately for some time prior to his
discharge, but whose derelictions worsened during the later
stages of his employment. Specifically, Amstutz indicated
that Teetrick was slow in approaching cars needing service,
that his physical appearance was not up to par, with
Teetrick frequently needing a haircut and wearing a messy
uniform. Amstutz relates that Teetrick would violate the
Company's rule which preferred two-man car service, that
on one occasion Teetrick neglected to lock the gas station
after closing, and that Teetrick did not wash windshields as
is required under the Company's rules . Amstutz relates that
he frequently warned Teetrick concerning these deficien-
cies, and even threatened discharge, but that his efforts in
this regard did not result in improvement. Teetrick admit-
ted that he had been warned about his appearance and
about wiping windshields. Also undisputed is the fact that
shortly before his discharge, Billy Cravens, a CSC supervi-
sor primarily responsible for carwashes, caught Teetrick in
violation of the company policy which limited gas station
attendants to carrying no more than $50, requiring the
balance to be deposited in a safe. I credit Amstutz' general
description of Teetrick's adverse work history.
Nonetheless, Amstutz took no action to terminate Tee-
trick until Monday, November 24. Prior to that date,
Teetrick had made initial contact with the Union on
November 17, and had distributed union authorization
cards among his fellow employees on November 21.
On the morning of November 24, Teetrick went to
Respondent's premises where he obtained a signed, union
authorization card from Mark Roberts. At that time
Teetrick was directed by Roberts to Amstutz. Amstutz then
s I discredit Teetnck's testimony that, in discharging him, Amstutz stated
that, on the night in question, Teetrick had sussed "four windshields," and
that Kevin Merrick , who was also on duty that Saturday evening , also missed
windshields. In rejecting this testimony I note that from my observation of
Teetrick , I did not regard him as an entirely trustworthy witness. He struck
effected the discharge, stating that Teetrick's failure to
wash windshields on Saturday evening, November 22 was
the basis for his action.5 No other reason was given Teetrick
for the discharge. The termination notice appearing in
company files, recites that Teetrick was discharged because
his work was unsatisfactory, specifically indicating "this
man was slow waiting on customers and did not do
windshields on customers' cars."
Despite the absence of union animus and the lack of
direct evidence that Respondent was mindful of union
activity prior to the Teetrick discharge, the General
Counsel urges that a union-related motivation be inferred
from the timing of Respondent's action, Teetrick's role in
the organizational effort, the small size of the work force,
and the allegedly unacceptable explanation given by
Respondent for the discharge. I find no merit in the
General Counsel's position.
With respect to the issue of knowledge, though Teetrick
was the principal protagonist of the Union at Respondent's
carwash and gas station facility, in the circumstances I am
unwilling to infer knowledge under the Board's small plant
doctrine, or from the total circumstances. In this latter
regard, while the combined crew of the gas station and
carwash consisted of but seven employees, Teetrick's union
activity, apart from conversations with employees concern-
ing the desirability of a union, consisted of soliciting of
union authorization cards on November 21 from five of the
seven employees. At all times, his union activity was
conducted under conditions failing to warrant an assump-
tion that any management representative would have been
in a position enabling detection thereof. Any inference of
knowledge, drawn on the basis of the small plant doctrine
herein would necessarily rest on an assumption that
Teetrick's efforts were reported by one of his fellow
employees, despite the absence of evidence that this was the
case. As it does not appear that any managerial official
questioned employees concerning union activities or that
employees volunteered any such information to manage-
ment, and since the union activity was conducted under
covert circumstances, I am unwilling to find that the size of
Respondent's work force, under established Board policy,
warrants an inference that Respondent, prior to Teetrick's
discharge, either knew of his union activity or that an
organizational drive was then in progress.6
As for the General Counsel's claim that Respondent's
reasons for terminating Teetrick were pretextual, and
coupled with the timing of the discharge, warrant an
inference of discrimination, I am not persuaded that the
evidence supports such a claim. Although the immediate
reason afforded by Amstutz for Teetrick's discharge was
not representative of the more grievous employee offenses,
I am unwilling to infer that Amstutz acted upon any reason
other than Teetrick's poor work performance. Teetrick
admitted that prior to his discharge, he had been called
down by Amstutz for a variety of indiscretions, including
the amount of cash he carried while on duty, his physical
appearance, leaving the station unlocked, letting other
me as a somewhat difficult and argumentative individual not above coloring
facts to further his own interest. I also note that the specific testimony in
question here did not have a ring of truth.
B See Picker Corporation, 222 NLRB 2%, 299 (1976).
ONTARIO GASOLINE & CAR WASH
station attendants off early, slow service , and failure to
wash windshields. Amstutz credibly testified that his efforts
to correct Teetrick in these areas often went unheeded.?
It is true that Respondent did not act upon Teetrick's
work inadequacies until after commencement of union
activity, and, indeed, there can be no quarrel with the
General Counsel's observation that pretext to cover union-
related discrimination is often suggested in such circum-
stances . However, I find that Amstutz' delay in taking
action against Teetrick is credibly explained on this record.
Thus, according to uncontradicted testimony of Amstutz,
after having voiced a threat of discharge to Teetrick
because of a job indiscretion well prior to the termination in
question, Teetrick's father intervened and threatened to
have Amstutz terminated. Parenthetically, it is noted that
Teetrick's parents are involved in the operation of an ice
cream store, which trades under the name of "Zip's," an
operation in which Art Feldman, an official of Cook
United, Inc., was believed to have held an interest. Because
of this relationship with Feldman, Amstutz, a young man
who impressed me as having limited sophistication , did not
take lightly the warning conveyed by Teetrick's father.
Amstutz, with substantial corroboration from Robert
Williams, the individual responsible for the overall opera-
tions of CSC gas stations and carwashes, testified that his
fears concerning the threat were not allayed until he had a
conversation with Williams shortly before the discharge. In
that conversation, Williams urged Amstutz to assume full
responsibility in assuring that station attendants live up to
their responsibility for providing quick and adequate
service to customers . 8 Amstutz in response to Williams
complained that he was not happy with Teetrick. Williams
indicated that as manager, it was Amstutz' responsibility to
replace men who didn't do their job. Amstutz then advised
Williams that he had been threatened by Teetrick's father.
Williams assured Amstutz that he would handle any
problem that Amstutz ran into and again instructed
Amstutz to do his job. Before the conversation ended,
Amstutz informed Williams that he would warn all employ-
ees that they would be terminated if they failed to do their
job properly. That same evening, Amstutz parked in the
shopping area at a vantage point enabling him to observe
the gas station. Amstutz testified that after observing
Teetrick engage in further violations of company policy
that evening, he decided to discharge him.9
The next morning, Sunday, November 23, according to
the credited testimony of Williams, Amstutz called him
informing that he had checked out Teetrick and found that
he was not doing his job, and accordingly had decided to
fire him.
r My general impression that Teetrick possessed a cavalier attitude
towards company rules is confirmed by his own admission that shortly after
Cravens caught him carrying more than $50, Amstutz on November 22
caught him in the same violation.
8 Teetnck 's own testimony tends to support the testimony by Cravens,
Williams, and Amstutz , that prior to the advent of the Union Respondent's
officials attempted to tighten up on employees at the gas station and
carwash . Teetrick admitted , on cross-examination, that prior to his discharge
and the union activity , he learned that Amstutz met with employees and
discussed the company policy concerning windshields and the limitation
upon the amount of money gas station employees were permitted to carry
9 Teetrick was not scheduled to work on Sunday, and according to
953
In view of the foregoing, particularly Respondent's
credited explanation for the timing of the discharge, and the
failure of the General Counsel to establish knowledge or
union animus, I find that the General Counsel has not
established by a preponderance of the evidence that the
stated reason for the termination of Teetrick was pretextual
or that Teetrick was discharged because of his union
activities in violation of Section 8(a)(3) and (1) of the Act.
c. John Gascon
John Gascon was 16 years of age when he was hired to
work in the carwash in October 1975. On November 21, he
obtained a union authorization card from Tim Teetrick,
signed it, and immediately returned it to Teetrick. Although
Respondent at the time of Gascon's discharge was aware of
the Union's demand for recognition, there is no direct
evidence that Respondent's representatives had any knowl-
edge that Gascon was a union supporter.10
According to Gascon, Roger Mock, the newly hired
carwash manager, on November 26, remarked that Bill
Cravens, Williams' subordinate who was primarily respon-
sible for all CSC Oil's carwashes, had informed Mock that
everybody "under 18 years old would be let go because they
were not old enough to work." This occurred on the first
day that Mock began his duties as carwash manager.
Thereafter, Gascon, continued to work until his termina-
tion, which took place prior to the commencement of work
on Saturday, November 29. On that occasion, Gascon was
told that since a replacement had been hired, his services
were no longer needed.
Mock testified that the day before he started work,
Williams and Cravens advised him that they wanted to do
away with part-time help. According to Mock, they
indicated that because of the outside interests of these part-
time employees, the Company could not get adequate shift
coverage, in that the hours in which these people could
work were limited. Mock explained that he decided to lay
off Gascon because, of the part-timers, Gascon had the
least seniority. In addition, according to Mock, he suspect-
ed that he could not rely on Gascon because of certain
actions and statements by the latter which suggested his
lack of responsibility to his job. This related to Mock's
observation of Gascon talking on the telephone for about a
half hour on one occasion, and a further incident in which
Gascon informed Mock that the employees could get away
with a "lot of stuff" when Rodriguez was carwash manager,
including sleeping on the job.
The termination notice on Gascon, prepared for compa-
ny records, was dated December 8, 1975. It states that
Gascon was "laid off," and as the reason for his termina-
Amstutz, he did not discharge Teetrick immediately on Saturday night,
because he wanted Teetrick to check out the station at closing time.
Therefore, the actual discharge was not consunun ated until Monday, No-
vember 24.
10 Gascon testified that he intended to attend a union meeting scheduled
for November 21, and that Kevin Merrick had offered him a ride to said
meeting . However, he did not attend because Merrick did not pick him up.
Merrick, though given a card by Teetrick, never signed same. Contrary to the
General Counsel, I am not willing to infer from this evidence that Merrick
was so hostile to the organizational effort that he would report to
Respondent the union leanings of a fellow employee.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, recites: "he was under age and the hours were
inenterfearing [sic] with his work & school - replaced with
a full-time man." The termination form further indicates
that Gascon was recommended for reemployment.
As in the case of Teetrick, there is no direct evidence that
Respondent knew of Gascon's union activity. Here again,
the Board's small plant doctrine does not furnish a
reasonable basis for inferring such knowledge. Gascon's
union activity was limited to the execution of a card and
there is no indication that this was observed by any
representative of management. In the absence of evidence
that union activity was a subject of discussion between
employees and any management representative, I find that
it would be inappropriate to apply the small plant doctrine
in these circumstances.
It is true, as the General Counsel observes, that the stated
reason for termination of Gascon raises several questions.
Thus, according to Mock he selected Gascon to be among
the part-timers laid off becuase he was the least senior of
that group. Company records on the other hand indicate
that another carwash attendant, Rodney Shaw, was hired
on November 15, 1975, and hence was junior to Gascon.
The company records also show that Shaw was only 16
years of age when Gascon was terminated, yet Shaw did not
lose his job, but was continued as an employee until
terminated for cause for reasons other than his age. Aside
from the contradictions in Mock's testimony, evidence
adduced by the Respondent concerning the mishandling of
rewash coupons and discount coupons at the carwash
seemed so tenuous, in terms of its relationship to the
termination of Gascon, as to also arouse suspicion. For this
was not linked with any evidence tending to show that
Gascon was suspected, more than any other employee
assigned to the carwash, of responsibility for any losses
sustained by the Company as a result of improprieties in
this area."
There can be no question as to the soundness of the
General Counsel's observation that a proscribed motivation
might be inferred in circumstances where an employer's
explanation for a discharge is shifting and marked by
contradiction and implausibility. For, if "the stated motive
for discharge is false, . . . [one ] can infer that there is
another motive." See Shattuck Denn Mining Corporation
(Iron King Branch) v. N.LRB., 362 F.2d 466, 470 (C.A. 9,
1966). However, in the circumstances presented here, I am
not persuaded that the questionable nature of the defense
necessarily points to a conclusion that the reasons assigned
for the termination of Gascon were false. In my opinion,
having considered all the evidence, with the opportunity to
observe and question the witnesses directly, the confusion
apparent on the face of the defense stems from Roger
Mock's own confusion, and his limited capacities for
comprehension and recollection. Mock struck me as a
young man, with limited experience in the ways of
managing, who was awe stricken by this proceeding.
1 i There was testimony that Rodney Shaw, after the discharge of Gascon,
accused Gascon of having given away free carwashes. Although this
evidence and the background facts concerning Respondent's poor rewash
and discount coupon experience at the Toledo carwash may have been
adduced for the purpose of portraying Gascon in an unsympathetic light, this
implication of Gascon in possible dishonest behavior did not occur until
after his discharge, and hence could not have been a causative factor therein
He was hired on November 26, as carwash managirr,
apparently, with no background whatever in supervision.
Only a few days after his assumption of responsibility as
carwash manager, Mock found it necessary to terminate
three of the four employees assigned to him. Thus, on
November 27, Mark Roberts was terminated for not
showing up for work, on November 29, Gascon was
terminated, and, on or about November 30, Mock termi-
nated Shaw.
His testimony at this hearing touched on circumstances
surrounding all three discharges and the confusion under
which he labored in relating that testimony was obvious. I
simply do not believe that Mock was capable of a clear
articulation of the basis for his actions against Gascon. I do
not attribute his difficulty in attesting to the facts as
suggesting a bungled attempt at pretext.
Mock, with corroboration from Cravens and Williams,
truthfully testified that before assuming his duties as
carwash manager, he was instructed to eliminate substan-
tially all of the part-time carwash employees, who had other
work or educational responsibilities on a daily basis.
Indeed, according to Mark Roberts, a witness called by the
General Counsel, in mid-November, at a time which
apparently predated union activity, Williams and Cravens
informed him that part-time carwash attendants would
have to be replaced by full-time employees. However
questionable this directive may have been, its origin
predated the union activity, and hence the Gascon issue is
narrowed to whether or not Mock's implementation of that
directive against Gascon was founded on the latter's union
activity. Considering the nature of Gascon's union activity,
the absence of knowledge thereof on the part of Respon-
dent and the lack of evidence that Respondent had a hostile
attitude toward employee organizational rights, it strikes
me as entirely unreasonable to conclude that the weakness-
es in the General Counsel's case should be excused because,
as heretofore explicated, the key defense witness was
personally incapable of rendering a clear and convincing
explanation of the reasons for his actions. Accordingly,
though I would agree that in certain circumstances the
missing elements in the General Counsel's case might be
overcome by the suspicious and highly questionable nature
of an employer's explanation for a discharge,12 in this case
a preponderance of the evidence does not persuasively
support rejection of the conclusion that Mock replaced and
then terminated Gascon pursuant to his understanding of
the instruction by higher management officials that part-
time employees be replaced by full-timers, action which in
no way related to Gascon's union activity.13 Accordingly, I
shall recommend dismissal of the 8(a)(3) and (1) allegations
concerning Gascon.
D. The Refusal to Bargain
The 8(a)(5) allegation appearing in the complaint, based
as it is on N.LR.B. v. Gissel Packing Co., 395 U.S. 575 and
12 Cf. Long Island Airport Limousine Service Corp, 191 NLRB 94 (1971).
13 See Siltec Corporation, 217 NLRB 282 (1975); Bayliner Marine
Corporation, 215 NLRB 12 (1974); Viking Body Repair, Inc., 189 NLRB 482
(1971).
ONTARIO GASOLINE & CAR WASH
Trading Port, Inc., 219 NLRB 298, depended critically on
the existence of merit in the 8(a)(3) allegations. With
dismissal of these latter allegations, the predicate for the
refusal-to-bargain allegation fails to exist, and, accordingly,
I shall recommend dismissal of the complaint in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent did not violate Section 8(aX3) and (1) of
the Act by discharging employee Timothy Teetrick on
14 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec . 102.48
955
November 24, 1974, and employee John Gascon on
November 29,1975, because of their union activity.
4. Respondent did not violate Section 8(aX5) and (1) of
the Act by refusing, since November 24, 1975, to recognize
and bargain with the Union as majority representative of
employees in the appropriate bargaining unit.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 14
It is hereby ordered that the complaint herein be, and
hereby is dismissed in its entirety.
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.