A-W Washington Service Station,

National Labor Relations Board - Board Decisions

Sep 23, 1981

258 N.L.R.B. 164 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A-W Washington Service Station, Inc. and Richard
Bacon. Case 25-CA- 11604
September 23, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On September 8, 1980, Administrative Law
Judge Robert W. Leiner issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed cross-exceptions and a sup-
porting 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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The complaint in this case alleges that Respond-
ent discharged Richard Bacon, in violation of Sec-
tion 8(a)(1) and (3) of the Act, because of Bacon's
activities on behalf of International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), Local 226,
herein called the Union. The Administrative Law
Judge found no evidence of union animus on Re-
spondent's part, and thus concluded that the dis-
charge was not motivated by Bacon's union activi-
ties. We disagree.
Respondent operates two filling stations in In-
dianapolis. Bacon is the president of the Union at
the International Harvester plant in the same city.
In November 1979, the Union was engaged in a
strike against International Harvester, and Bacon
applied for work at Respondent's service station
for the duration of the strike. He was hired by the
station manager, Donald Garwood. Bacon told
Garwood that he might be required to go to Chica-
go for union negotiations, and Garwood agreed
that Bacon could supply a substitute for the time
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
While we do not reverse any specific credibility finding of the Admin-
istrative Law Judge, we disavow his overly broad statement that
"Bacon's [credibility] suffers from the defect of being the Charging
Party." While interest may be considered in evaluating the credibility of
testimony, an interest in the outcome of the proceeding is not enough, in
itself, to discredit a witness. See Central Cartage, Inc., 236 NLRB 1232,
1234-35 (1978).
he was gone. On Monday, November 26, while
Bacon was in Chicago for union negotiations, Gar-
wood was called by Isaac Danzig, Respondent's
general manager in St. Louis, Missouri. Danzig
called to inquire about certain irregularities and
ambiguous statements in Bacon's employment ap-
plication, which had been forwarded to the St.
Louis office. He asked Garwood to have Bacon ex-
plain certain answers; Garwood replied that Bacon
was in Chicago on union business. Danzig then
told Garwood to fire Bacon.
The record demonstrates that Danzig did not
call Garwood intending to fire Bacon; he made
that decision in the course of the telephone call.
The only new information about Bacon that
Danzig learned in that call was that Bacon was in
Chicago negotiating for the Union, and, as soon as
Danzig learned that, he ordered Bacon fired. There
is no indication that Danzig inquired whether
Bacon was absent from work without permission,
whether he had been replaced, or even if he was
scheduled to work that day-nor did Garwood
volunteer such information. Therefore, Danzig did
not learn, as the dissent asserts, "that Bacon was
absent from work .... 2 An employer, even an
"impulsive and unfair" one, knows that employees
do not work around the clock 7 days a week;
Danzig would have asked about Bacon's schedule
if his real concern had been Bacon's attendance at
work. We find that these circumstances give rise to
a strong inference that Danzig's real concern was
Bacon's attendance at union negotiations.
Based on the foregoing, the General Counsel
made a prima facie showing sufficient to support
the inference that Bacon's protected conduct was a
motivating factor in Respondent's decision. Fur-
ther, Respondent's proffered explanation of the dis-
charge was specifically discredited by the Adminis-
trative Law Judge.3 The Administrative Law
Judge went on, however, to suggest a legitimate
reason for Bacon's discharge which Respondent
itself had not advanced; he concluded, as does our
dissenting colleague, that Danzig would have dis-
charged Bacon for being in Chicago on any private
business. Given Danzig's own testimony, we do not
2 This is thus not a case where, as in Somerset Shirt & Pajama Compa-
ny, 238 NLRB 1160 (1978), or Trailways. Inc.. 237 NLRB 654 (1978),
cited by our colleague, the respondent's legitimate reason for discharging
an employee appears in the record.
I Respondent points out that, in Danzig's discredited account and Gar-
wood's credited account of their telephone conversation of November 26,
the reason for the discharge was the same: Bacon's absence from work;
the only difference, it claims, is who made the decision. But Garwood's
credited version does not include his saying that Bacon sent an inad-
equate substitute. Moreover, Danzig's discredited attempt to shift respon-
sibility for the discharge is a deviation sufficiently material to warrant the
conclusion that Danzig was attempting to conceal the facts of the dis-
charge from the Board. Shattuck Denn Mining Corporation (Iron King
Branch) v. N,L.R.B.. 362 F.2d 466, 470 (9th Cir. 1966).
258 NLRB No. 14
164
A-W WASHINGTON SERVICE STATION
find our colleague's "inference . . . equally
strong." Rather, Danzig's discredited evasion is ad-
ditional evidence of unlawful motivation for the
discharge.4
Our dissenting colleague misapprehends the
scope of Section 8(a)(1) and (3) when he relies on a
lack of evidence that Bacon intended to unionize
Respondent's employees; the Act forbids discrimi-
nation intended to discourage any union activity,
including activity aimed at another employer. See
Washington State Service Employees State Council
No. 18 and Local 6, Service Employees Union affili-
ated with Building Service Employees International
Union, AFL-CIO, 188 NLRB 957 (1971). Neither is
Respondent absolved because Danzig did not
decide to discharge Bacon as soon as Danzig
learned, from Bacon's employment application, of
his union activity, but only discharged him when it
appeared that he would continue his legitimate ac-
tivities while in Respondent's employ. A violation
is thus established even absent further evidence of
Respondent's union animus or of disparate treat-
ment. 5
CONCLUSIONS OF LAW
1. A-W Washington Service Station, Inc., is an
employer engaged in commerce and activities af-
fecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), and its Local 226, are labor orga-
nizations within the meaning of Section 2(5) of the
Act.
3. Respondent has engaged in an unfair labor
practice within the meaning of Section 8(a)(l) and
(3) of the Act by discharging Richard Bacon for
his activities on behalf of the Union.
4. The aforesaid unfair labor practice affects
commerce as defined in the Act.
THE REMEDY
Having found that Respondent discharged Rich-
ard Bacon in violation of Section 8(a)(1) and (3) of
the Act, we shall order Respondent to cease and
desist from engaging in the unfair labor practice
found above and from engaging in like or related
conduct. Respondent shall also be ordered to offer
Bacon immediate and full reinstatement to his
former position or, if that position no longer exists,
to a substantially equivalent position, without prej-
udice to his seniority or other rights or privileges
4 See Shattuck Denn Mining Corporation v. .L.R.B.. supra.
b We attach very little, if any, weight to Danzig's union activities years
ago as an employee in determining what may motivate him now as an
employer; Danzig's father's views on unionism are even less relevant.
previously enjoyed, and to make him whole for
any loss of earnings he may have suffered by
reason of his discharge. Backpay and interest there-
on shall be computed in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651
(1977). See, generally, Isis Plumbing & Heating
Company, 138 NLRB 716 (1962).6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
A-W Washington Service Station, Inc., Indianapo-
lis, Indiana, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging Richard Bacon or any other em-
ployee for engaging in activities on behalf of a
union.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights under Section 7 of the Nation-
al Labor Relations Act, including the right to join
or assist International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), its Local 226, or any other labor
organization.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Offer Richard Bacon immediate and full rein-
statement to his former position or, if that position
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights and privileges previously enjoyed, and make
him whole for any loss of earnings or other bene-
fits he may have suffered as a result of his dis-
charge by paying him a sum equal to what he
would have earned absent the unfair labor practice,
less any net interim earnings, plus interest, in the
manner set forth in the section of this Decision and
Order entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its Ayrway Station in Indianapolis,
Indiana, copies of the attached notice marked "Ap-
6 Member Jenkins would compute interest on the backpay due in ac-
cordance with the formula set forth in his dissent in Olympic Medical Cor-
poration, 250 NLRB 146 (1980).
165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pendix." 7 Copies of said notice, on forms provided
by the Regional Director for Region 25, after
being duly signed by Respondent's authorized rep-
resentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 25,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
MEMBER ZIMMERMAN, dissenting:
Unlike my colleagues, I agree with the Adminis-
trative Law Judge that the General Counsel failed
to establish that Respondent's General Manager
Danzig's discharge of employee Bacon violates Sec-
tion 8(a)(3) and (1) of the Act. I would therefore
dismiss the complaint.
There is no evidence in the record of general
union animus on the part of Respondent or specifi-
cally on the part of Danzig.8 Further, since there is
no evidence that alleged discriminatee Bacon had
any intention of organizing Respondent's employ-
ees, or was even perceived by Danzig as having
such intent, there is no basis for assuming that, in
firing Bacon, Danzig was motivated by a desire to
prevent unionization of Respondent's operations.
While there is no evidence of union animus, the
record does establish that Danzig had knowledge
of the extent of Bacon's involvement with the
Union before his telephone call to Station Manager
Garwood on November 26 during which Bacon
was discharged. In this respect, Bacon included in
his application for employment with Respondent
the information that he was president of UAW
Local 226. Bacon also noted that his immediately
preceding employment had been at the Internation-
al Harvester plant in the same city. When asked on
the application if he would object to Respondent's
contacting any previous employer, Bacon wrote:
"International Harvester on strike-none of their
business-." Clearly, since Danzig telephoned Gar-
wood to inquire about certain ambiguities and irre-
7In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of appeals enforcing an
Order of the National Labor Relations Board"
8 Indeed, the evidence bearing on Danzig's general attitude about
unions tends to indicate, if anything, a lack of union animus. Thus, the
record indicates that Danzig's father was a business agent for the Carpen-
ters and Joiners International Union, and that Danzig himself was former-
ly a shop steward, union organizer, and on the union negotiating commit-
tee for the Retail and Warehouse Employees Union.
gularities in Bacon's employment application, he
was already aware of its contents.
My colleagues acknowledge that Danzig had no
intention of firing Bacon before telephoning Gar-
wood about Bacon's application. Yet, they infer
that, despite Danzig's prior knowledge of Bacon's
union involvement and the lack of any evidence of
union animus, Danzig decided to fire Bacon be-
cause of his union activities in Chicago when he
learned about them in the course of the telephone
call. The inference is at least equally strong, how-
ever, that Danzig was provoked, and fired Bacon,
because he learned during that call that Bacon was
absent from work on personal business for an ap-
parently indefinite period of time after only ap-
proximately 2 weeks on the job. I find no basis for
assuming that union business, the purpose of the
absence, affected Danzig's decision at all.9 As the
Board has stated on numerous occasions, union ac-
tivity of an employee (or an employer's learning of
that activity), followed by the employee's dis-
charge, does not in itself establish an unlawful
motive. o
My colleagues' inference of unlawful motivation
relies additionally on Danzig's failure to inquire
whether Bacon had permission to leave work,
whether he had been replaced, or whether Bacon
was scheduled to work on the day he was dis-
charged. Nevertheless, however impulsive and
unfair Danzig's approach may seem, he is not thus
proven to be motivated by unlawful considerations.
Further, there is no evidence of disparate treatment
to bolster the majority's inference that Danzig's
discharge of Bacon was in any way discriminatory.
In view of the foregoing, I would find that the
General Counsel has not established a prima facie
showing that Bacon's union activity was a motivat-
ing factor in Respondent's decision to discharge
him. Accordingly, I would not find that Respond-
ent has violated Section 8(a)(3) and (1) of the Act.
9 During the telephone call in question, Danzig and Garwood dis-
cussed Bacon's employment application. When Garwood told Danzig
that he could not ask Bacon about the application because he was in Chi-
cago at the union negotiations, Danzig responded, "You can't run a busi-
ness like that, fire him," or "That is no way to run a business, fire him."
Neither version implies that Bacon's union activities as such prompted
the discharge.
'° See, e.g., Somerset Shirt & Pajama Company, 238 NLRB 1160, 1162
(1978), and Trailways Inc., 237 NLRB 654, 662 (1978).
166
A-W WASHINGTON SERVICE STATION
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amend-
ed, gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge Richard Bacon or
any other employee for engaging in activities
on behalf of a labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights under Section
7 of the National Labor Relations Act.
WE WILL offer Richard Bacon immediate
and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent job, and WE WILL make him whole
for any loss of earnings he may have suffered
as a result of his discharge, plus interest.
A-W WASHINGTON SERVICE STATION, INC.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: Pur-
suant to a charge filed by Richard Bacon, herein called
the Charging Party, on December 3, 1979, and served on
December 4, 1979, a complaint issued against A-W
Washington Service Station, Inc., herein Respondent, on
January 21, 1980, alleging, in substance, that on or about
November 28, 1979, Respondent discharged its employ-
ee, Richard Bacon, because of his membership in and ac-
tivities on behalf of Local 226, International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, herein called the Union. The
complaint also alleges that Respondent, on November 30,
1979, by telling Bacon that he was fired because he held
union office and engaged in other union and concerted
activities, independently violated Section 8(a)(1) of the
Act. Respondent's duly filed answer admits several of
the allegations of the complaint, but denies the jurisdic-
tion of the Board as well as the commission of the unfair
labor practices.
Pursuant to prior notice, a hearing was held before me
in Indianapolis, Indiana, on June 17 and July 8, 1980, at
which the General Counsel and Respondent were repre-
sented by counsel. The parties were provided opportuni-
ty to present written and oral evidence, to make argu-
ment, and to examine and cross-examine witnesses. At
the conclusion of the hearing, the parties waived oral ar-
gument and thereafter submitted timely briefs.'
Upon the entire record, including the briefs, and my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint, as amended at the hearing, alleges, Re-
spondent admits, and I find that at all times material
herein, Respondent has been and is now an Indiana cor-
poration maintaining a principal office in St. Louis, Mis-
souri, and a place of business at 59 South Franklin Road,
Indianapolis, Indiana, herein called the Ayrway facility,
and another facility in the State of Indiana and has been
engaged, at all times material herein, at both such facili-
ties in the retail sale of gasoline and related products.
The complaint alleges that and Respondent further
admits that in the 12-month period ending January 18,
1980, a representative period of its annual operations, Re-
spondent, in the course and conduct of its operations, de-
rived gross revenues from the sale of gasoline and relat-
ed products in excess of $500,000. At the hearing, the
General Counsel amended the complaint to allege that
during the calendar year ending December 31, 1979, Re-
spondent purchased in excess of $5,000 worth of ciga-
rettes from Columbia Wholesale Company, Inc., Indiana-
polis, Indiana, which cigarettes in turn were shipped di-
rectly from points located outside the State of Indiana to
Columbia Wholesale Company, Inc. To this allegation,
Respondent pleaded that, in the alleged period, Respond-
Along with its brief, Respondent submitted a motion to reopen the
hearing for the purpose of including in the record certain records which,
according to Respondent, would discredit the testimony of the Charging
Party Bacon, the alleged discriminatee herein, who testified that Re-
spondent's manager, Carr, directed him to place regular gasoline in the
unleaded tank at Respondent's service station. The General Counsel op-
poses the motion.
In support of the motion, Respondent states it could not anticipate
Bacon's testimony in order to research its records. Having now discov-
ered records which Respondent suggests discredits Bacon. Respondent
moved to reopen.
I deny the motion. The proper procedural device should have been to
request a continuance at the hearing. Respondent acquiesced in the clos-
ing of the record and apparently speculated on its search of its records.
Such a procedure is unacceptable since, if condoned, it would unneces-
sarily prolong the closing of cases when a clear alternative existed.
Furthermore, the proffered documents merely show that on November
24, 1979. 7,844 gallons of unleaded gasoline were shipped to and received
by Respondent. Not only do the documents fail to show whether leaded
gasoline was also received at or about this time (thus permitting a mix-
ture of the two varieties) but, since Respondent operated two service sta-
tions in Indianapolis at this time, they fail to clearly show delivery at the
station at which Bacon was employed. In no event do the documents
show, as Respondent urges, that unleaded gasoline was received "rather
than regular gasoline."
Moreover, in view of the disposition of the case, infra. Bacon's credi-
bility is not a crucial factor. Lastly, the Board will not reopen to admit
evidence which merely attacks credibility. Frank Mascali Construction
G.CP. Co. Frank Mascali Construction Co.. Inc.. 251 NLRB 219. fn.
(1980).
167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent purchased in excess of $5,000 worth of cigarettes
from Columbia Wholesale Co., Inc., but denied the bal-
ance of the allegation. At the hearing, the parties never-
theless stipulated that during the calendar year ending
December 31, 1979, Respondent purchased in excess of
$5,000 worth of cigarettes from Columbia Wholesale
Co., Inc., and that, Columbia Wholesale Co. orders its
cigarettes from, and makes payments to, the cigarette
manufacturers located outside the State of Indiana. The
cigarettes are delivered to Columbia Wholesale Co. from
Strohn Warehouse in Indianapolis, Indiana. Strohn
Warehouse is a public warehouse company which re-
ceives cigarettes from various cigarette manufacturers lo-
cated outside the State of Indiana and stores said ciga-
rettes until the manufacturer of the cigarettes orders
their release and shipment to Columbia Wholesale. It
was further revealed that Strohn Warehouse is engaged
in the business, inter alia, of storing cigarettes in cartons
from various manufacturers which are released to whole-
salers, including Columbia Wholesale Co., at the direc-
tion of the manufacturing company. The facts further
reveal that the ultimate purchaser, Respondent herein,
does business only with Columbia Wholesale.
The Board asserts jurisdiction over the operations of
an employer engaged in retail sales where the Board's
discretionary and legal standards are met.
Respondent, as above noted, denies that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. Concerning the Board's
"discretionary" jurisdiction in this matter, it is clear that
Respondent's annual retail sale of gasoline in excess of
$500,000 at its two gasoline stations located in the city of
Indianapolis, which gasoline is sold indiscriminately to
retail customers engaged in private pursuits as well as in
business, affects interstate commerce, regardless of the
source of the gasoline which it sells and even absent
proof that the purchasers, in their business pursuits, are
themselves directly engaged in interstate commerce. The
Board's discretionary retail standard is annual retail sales
of $500,000 or more. Thus, the Board's retail discretion-
ary "commerce" standard is met. Carolina Supplies and
Cement Co., 122 NLRB 88 (1958).
With regard to the Board's "legal" standard for ac-
cepting jurisdiction over employers to whom the discre-
tionary retail standard applies, the Board requires that
the employer have "direct" or "indirect" "outflow" or
"inflow" greater than de minimis. Respondent stipulated
that it purchases on a yearly basis in excess of $5,000
worth of cigarettes from Columbia Wholesale Co. It is
stipulated that Columbia Wholesale Co. imports those
cigarettes and permits their intermediate warehousing at
Strohn Warehouse, but nevertheless imports them from
manufacturers directly outside the State of Indiana. Re-
spondent's purchase practice is defined as "indirect
inflow" by the Board since Respondent purchases from
Columbia which is the direct importer of the cigarettes.
That Columbia warehouses at Strohn is immaterial. Such
inflow, in excess of $5,000 on an annual basis, is more
than de minimis. In Sommerset Manor, Inc., 170 NLRB
1647 (1968), the Board held that indirect inflow in excess
of $1,800 per year is greater than de minimis. Respond-
ent, therefore, having met the Board's discretionary retail
standard (yearly retail sales in excess of $500,000 in the
sale of gasoline) and legal standard ($5,000 worth of indi-
rect inflow of cigarettes), I conclude that Respondent, at
all material times herein has been, and is, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and is subject to the Board's
jurisdiction.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that International Union United Automobile, Aerospace
and Agricultural Workers of America, Local 226, herein
called the Union, is now, and has been at all material
times herein, a labor organization within the meaning of
Section 2(5) of the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICES2
Donald Garwood, Respondent's manager at the
Ayrway gas station, normally directs the two employees
at Ayrway who are necessary to operate Respondent's
gas station which is open 6 days per week (closed
Sunday) and which operates from early morning until
around 9 p.m. In November 1979, Respondent advertised
for pump attendants in at least one Indianapolis, Indiana,
newspaper. Sometime after the first week in November
1979, Richard Bacon answered the advertisement and, on
November 12, met with Donald Garwood for an inter-
view. Garwood told him that there was an opening on
the night shift which opening was ideal for Bacon, presi-
dent of UAW Local 226. Local 226 represents employ-
ees at the local International Harvester plant, which
plant was on strike at the time. Garwood told him that
he could work the 4 to 9 p.m. shift and Bacon asked if
he could fill out an application. Garwood gave him Re-
spondent's four-page application (Resp. Exh. 2) which
Bacon filled out at once. While filling out the applica-
tion, Bacon told Garwood that, as president of Local 226
and a member of the Union's negotiating committee, it
was possible that he would be called to Chicago to
engage in negotiations to end the strike at International
Harvester. Garwood told him that it was alright if Bacon
gave him a few days' notice, and that, if Bacon were
called to Chicago, Garwood would make an arrange-
ment to provide for that contingency. On November 12,
1979, Bacon's first day of work, Bacon worked for an
hour and an half which was a break in. Garwood told
him that there would be a 5-day week, Monday through
Friday, with the night shift being 4 to 9 p.m.
On Wednesday, November 21, 1979, around 4 p.m.
when Bacon reported to work, he told Garwood that he
had received a call from the International union of UAW
requiring that he be in Chicago on the following
Monday, November 26, ready to negotiate. Garwood
then asked Bacon if he would wish to work on Saturday
2 The complaint alleges and Respondent admits that, at all material
times, Isaac Danzig, Respondent's president: Rod Carr. Respondent's area
manager; and Donald Garwood, its manager (at the Ayrway gas station),
were and are supervisors of Respondent within the meaning of Sec. 2(11)
of the Act and agents of Respondent within the meaning of Sec. 2(13) of
the Act. Garwood, a witness called by the General Counsel, testified in
support of Bacon.
168
A-W WASHINGTON SERVICE STATION
to help defray some of the wages he was going to lose
by being away. Bacon accepted the suggestion and did
work on Saturday. When Bacon told Garwood that he
was being called to Chicago, he also said that he had
somebody to replace him while he was in Chicago on
November 26 and 27. Garwood told him to send the re-
placement over and he would talk to him and let Bacon
know as to the adequacy of the replacement. The re-
placement was Charles Pollard, like Bacon, a striker at
International Harvester and a friend of Bacon. Pollard
came to the Ayrway service station on the same day that
Bacon had given Garwood notice of his future departure
and was hired by Garwood. Although the exact terms of
the hiring are not entirely clear, I find that when Gar-
wood hired Pollard, he hired him on a temporary rather
than a permanent basis. Whether he told him that he
would be hired to work the night shift rather than hired
to replace Bacon while Bacon was in Chicago for the ne-
gotiations is disputed. I need not resolve the issue. 3 Be-
tween Wednesday and Saturday, Pollard and Bacon
worked together in the Ayrway gas station on South
Franklin Street.
The employment papers which Respondent require all
applicants to execute consisted of a four-page application
for bonding which Respondent used as its application for
employment (Resp. Exh. 2), and a form known as "re-
ceipt for uniforms" (G.C. Exh. 2), which contains several
agreements including (1) the right of the Company to
make deductions from payroll checks for its issuance of
coveralls and shirts and (2) an acknowledgement of em-
ployee responsibility for cash shortages which the em-
ployee agrees to make up directly to the station manager.
The employee agrees to cooperate "completely" and, if
requested, to take a polygraph test relating to alleged
shortages or irregularities.
With regard to Bacon's application (Resp. Exh. 2), al-
though he listed the prior employers for whom he
worked, including New York Central Railroad, U.S.
Navy, and Miller Marble and Tile Company, he failed to
insert the dates worked therein and his salaries both
starting and ending. He also noted thereon that he was
president of UAW from 1966 to the present time (under
the listing of his professional or fraternal organizations)
and, particularly with regard to question "nine" on page
2 of the application ("Is there any employer listed above
that you would object to our contacting?"). Bacon an-
swered "yes" and, in the space provided for an explana-
tion, stated: "International Harvester on strike-none of
their business."
The application, in its head note, contains the admoni-
tion "Important Instruction to Applicants," stating that
the application would not be accepted unless each ques-
tion is answered fully, clearly, and accurately and that
complete details be given with a "yes" answer.
I Garwood, Bacon, and Pollard testified that, Pollard on occasion was
Bacon's replacement when Bacon was in Chicago. Even if Garwood ex-
pressly hired Pollard as a replacement, that would prove-as I find,
below-that Garwood permitted Bacon time off to attend negotiations in
Chicago. But Garwood did not discharge Bacon; Danzig, overruling
Garwood, discharged Bacon. The dispositive issue is Danzig's motive
rather than whether Garwood gave Bacon permission to temporarily
absent himself from his job.
With regard to the "receipt for uniforms" form (G.C.
Exh. 2), although Bacon signed his name to the docu-
ment, Garwood accepted a written amendment added by
Bacon, at the bottom of the form, whereby Bacon agreed
to take a polygraph test in the event of a shortage, but
would not take the test on an automatic basis.4
Bacon worked the period November 12 through No-
vember 28 without incident. It may be noted that No-
vember 28, 1979, falls on a Wednesday.
A. The Monday, November 26, 1979, Conversations
Between Danzig and Garwood
In due course, after Bacon executed the application
forms on November 12, 1979, Garwood forwarded them
to Respondent's main office in St. Louis, Missouri. All
applications received initial screening by Respondent's
office clerical, Norma Taylor. She screens them for irre-
gularities and, if any are found, she presents them to
President Danzig. In fact, on Monday, November 26,
office clerical Taylor found Bacon's executed "receipt
for uniforms" form irregular with regard to his amend-
ment relating to the polygraph test and the lack of its
automatic nature. She showed the document to Danzig.
Danzig read it and then called for the underlying appli-
cation itself. He read it and telephoned Garwood.
It is undisputed that, at this time, Bacon was in Chica-
go, having left on Monday to return on Tuesday night.
He did not appear for work until 4 p.m. on Wednesday,
November 28, 1979.
Thus, with Bacon in Chicago attending union negotia-
tions, on Monday, November 26, 1979, in the late morn-
ing or early afternoon, Danzig telephoned Garwood.
With Bacon's application papers in hand, Danzig told
Garwood that there was something in the nature of a
"smart" remark on the application in the answer to ques-
tion nine. The "smart remark" was that International
Harvester was on strike and that, with regard to whether
Bacon would object to Respondent contacting any prior
employer that Bacon had worked for, Bacon had written
"International Harvester on strike-none of their busi-
ness." He also told Garwood that, contrary to the admo-
nition on the application form, Bacon had failed to insert
his starting and ending salaries and the dates worked for
each employer. Garwood told Danzig that he had hired
Bacon on the basis of the interview and not because of
what was on his application. He said that he had not
looked the application over closely.5 Danzig then told
Garwood that Garwood had no right to accept Bacon's
amendment on the "request for uniform" form and that
no company form could be changed without prior au-
thorization. Danzig also told Garwood that Bacon also
failed to fill out the "monthly installment" portion of the
application; i.e., showing outstanding financial obliga-
tions. Garwood testified credibly that, although Danzig
4 The Bacon addendum is: "Agree to take polygraph in the event of
shortage-not automatic."
6 Although, as Respondent observes (br., p. 4). Garwood and Bacon
admitted going over Bacon's application, I credit Garwood that he hired
Bacon on the basis of the interview regardless of anything on the applica-
tion Certainly that is what Garwood would have told Danzig in any
event
169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did mention the changed polygraph element on the uni-
form receipt form, Danzig emphazised the fact that the
"none of their business" matter should be looked into.
Indeed, Danzig hollered over the phone when he told
Garwood to find out what Bacon meant by the remark
"none of their business." When Garwood said that he
would find out what it meant, Danzig asked him when
he would find out. Garwood told him that Bacon was in
Chicago at the union negotiation. At that point, Danzig
said: "You can't run a business like that, fire him." 6
In substance, Danzig testified that, when he called
Garwood, he noted the omissions that Garwood had
mentioned in his testimony and in particular asked Gar-
wood to find out what Bacon meant by his "smart"
answer to the above question "nine." When Garwood
told Danzig that Bacon was in Chicago and that he
could not find out what he meant by that remark,
Danzig said that he told Garwood that Respondent was
returning the employment applications to Garwood for
completion and for a change to eliminate Bacon's amend-
ment. Danzig said that Garwood admitted to making a
mistake in accepting the forms in the shape in which
Bacon executed them, but told Danzig that it was not
necessary to forward the forms because Garwood was
"going to fire him" because Bacon had gone off to Chi-
cago and sent an inadequate substitute to take his place.
Further, Danzig denies telling Garwood to fire Bacon
and asserts that the decision to fire him in that telephone
conversation stemmed only from Garwood. I do not
credit Danzig's testimony with regard to this conversa-
tion. I do so not only because of what I preceive as the
natural and reasonable elements in the conversation, my
observation of the witnesses, and the reasonable sequence
of the events as they were described, but because of the
corroboration of Bacon's version by Pollard, as herein
described below, and also because of certain other events
which detract from Danzig's credibility, infra.
When Bacon reappeared at the Ayrway station around
4 p.m. on Wednesday, November 28, 1979, Garwood
told him that he had bad news for him, that he was
being discharged. Bacon asked him for the reason and
Garwood said that he had been told to tell Bacon that it
was because of (I) the "none of their business" remark
that he had put in the application; (2) his failure to fill
out the prior wages part of the application; (3) his failure
to fill out the monthly installments portion of the appli-
cation; and (4) his altering of the "uniform receipt" form.
Bacon answered that with regard to all of these omis-
sions, Garwood had mentioned none of the deficiencies
when the application was executed and had accepted the
application as it was. In particular, Bacon credibily testi-
fied that he could not fill out the wages elements in the
application form because it had been 14 years since he
had worked for one of the employers. Garwood also told
Bacon that it was Danzig who directed Gai wood to fire
Bacon for these reasons. After Bacon told Garwood that
Danzig's reasons were not logical, Bacon told Garwood
that he felt that he had been fired because Danzig had
seen on his application that Bacon was president of
6 Another version of what Danzig said, according to Garwood, is:
"That is no way to run a business, fire him."
Local 226. Garwood told him that he was probably right
but that he would deny making any such admission if the
matter was ever brought up. Bacon said that he reached
this conclusion because, inter alia, when he filled out the
application, the omissions of the monthly installments,
wage rates, and dates of employment were not looked
upon as omissions damaging to his being hired. Thus, the
only conclusion that he came to was that he was dis-
charged because he had noted on his application that he
was president of Local 226.
Notwithstanding the discharge, Garwood permitted
Bacon to work that day and the next day because Gar-
wood told him that he, Bacon, was the most reliable em-
ployee he ever had on nights, that there had not been
any shortages in money, and that Bacon was always on
the job on time. In fact, Garwood at this time told
Bacon that he did not think that the discharge was
"fair."
As a result of this Garwood conversation, Bacon, later
in the same afternoon, telephoned Danzig in St. Louis on
three occasions. He did so in order to explain the "smart
remark" on the application which, according to Gar-
wood's recollection and statement was the only firm
reason advanced by Danzig to discharge Bacon. Gar-
wood testified in particular that although Danzig stated,
with regard to the "uniform receipt" form, that "nobody
changes company policy" and that Garwood had no
right to change the form, Danzig nevertheless did not
mention this change in the form as a reason for firing
Bacon.
Thus, later in the afternoon, around 5:30 p.m., Bacon
telephoned Danzig in St. Louis and reached Danzig's
secretary. The secretary told him that Danzig was on a
long-distance telephone call. Fifteen minutes later, when
Garwood called again, the secretary, after placing the
call on a "hold" position, told him to talk to Garwood as
to the reason for his discharge. When Bacon called the
third time, the secretary told him that Danzig had left
for the day. On a fourth occasion, the next day, Novem-
ber 29, in the morning, Bacon tried again. This time, he
told the secretary that he had been discharged, and that
his application carried a notation that he was the union
president and that he feared that was the reason for his
being discharged. Taylor answered that it was "not un-
usual," i.e., not unusual for discharged employees to
assert that they were discharged because they were
union officials or engaged in union activities. In any case,
Bacon told the secretary that he was expecting a return
telephone call from Danzig and that, if he failed to re-
ceive such a call, Bacon's next communication with Re-
spondent would be through the National Labor Relations
Board.
On the same day (Wednesday, November 28, 1979)
that Garwood discharged Bacon, Pollard asked Gar-
wood why he fired Bacon. All that Pollard recalled was
that it related to something on the application "about
none of your business."
It should be noted that when Bacon made the last tele-
phone call, on November 29, he made it from his union
office to Danzig in St. Louis, and made the remark about
desiring a return call from Danzig with regard to the
170
A-W WASHINGTON SERVICE STATION
reason for his being discharged. In fact, however, when
Bacon, on the previous day, tried three times to tele-
phone Danzig, he first asked Garwood to make the phone
call to Danzig and Garwood had refused to telephone
Danzig. Instead, he gave Bacon, Danzig's telephone
number in St. Louis. This resulted in the three phone
calls made by Bacon on November 28 and the fourth
telephone call on November 29.
In reviewing the record, I have noted and rejected
counsel for Respondent's argument that Danzig should
be credited in his assertion that he never directed Gar-
wood to discharge Bacon and that it was Garwood's
idea that the discharge be made. Among other reasons
advanced by counsel for Respondent is that Garwood
had actually told Danzig that he was going to fire
Bacon, but that, when Bacon actually confronted Gar-
wood concerning the discharge, Garwood, to save face,
shunted the blame on Danzig as the motivating force for
discharge. In rejecting this Danzig testimony that he did
not direct the discharge but that it was all Garwood's
idea, I note that it would be highly unlikely, in the ex-
treme, for Garwood, an employee, to try, at the same
time, to save face in front of Bacon by putting the blame
for the discharge on Danzig and also to give Danzig's
telephone number to Bacon so that Bacon could con-
front Danzig. Bacon, in an upset and emotional condition
because of the discharge, wanted Garwood to telephone
Danzig. Instead, when Garwood refused, Garwood gave
Danzig's telephone number to Bacon. Garwood would
ordinarily have avoided giving Bacon, Danzig's phone
number if he, Garwood had indeed been the motivating
force behind the discharge. For he would then be expos-
ing himself unnecessarily to Danzig's wrath by giving
the telephone number to Bacon. Such a device, when
Bacon actually reached Danzig would immediately
expose Garwood as the motivating force contrary to his
explanation to Bacon immediately prior thereto. It would
be an imprudent employee to intentionally cause his su-
perior to shoulder an unnecessary burden. I thus do not
credit Danzig's explanation that it was Garwood's idea
to fire Bacon.
On Friday, November 30, Bacon came to the Ayrway
station to pick up his final paycheck. Garwood told him
that, since he had last spoken to him, he had received a
telephone call from Danzig. While it is unclear whether
this second phone call from Danzig to Garwood oc-
curred late on November 28 (the day of discharge) or
after Bacon's November 29 call to Danzig in St. Louis
(when Bacon, having failed to reach Danzig, told his
secretary that, if Danzig did not return his call, the next
communication would be through the National Labor
Relations Board), 7 I conclude it was on November 29.
; Garwood testified that he received the second telephone call on the
same day, in the afternoon, that Garwood fired Bacon. Danzig testified
that it was "several days later," after the discharge. Since Danzig re-
called that his call to Garwood occurred after office clerical Norma
Taylor told him that Bacon said that he would go to the National Labor
Relations Board absent a return call from Danzig, I conclude that this
telephone call, the second one, from Danzig to Garwood occurred on
November 29, 1979. in light of Bacon's specific recollection of having
made the call on November 29 from his union hall office.
Danzig testified that he called Garwood and asked him
why he terminated Bacon. When Garwood said that he
terminated Bacon because, according to Danzig, Bacon
had left without notice to go to Chicago and sent an in-
adequate and untrained substitute, Danzig asked him
whether he in fact told this to Bacon. Garwood said that
he did tell that to Bacon. Danzig then said that he told
Garwood to "remember" that Garwood was the man-
ager; that the manager makes the decisions; that the first
three letters in manager was "MAN," and that, as a man,
he had to make the decision; and that if he could not
Danzig would find someone who could. Danzig said that
Garwood then apologized for telling Bacon that Danzig
had been involved in making the decisions to fire Bacon.
Danzig then requested that Garwood put, in writing, the
reasons for terminating Bacon. I do not credit Danzig's
recollection of these events.
Garwood recalls the conversation with Danzig calling
in an upset condition, reminding him that that he was the
manager of the station and that the first three letters of
manager were "MAN" and that, if he could not be a
man and take the responsibility for firing people, Danzig
would find somebody else that could. In particular, I
credit Garwood recalling that Danzig told him never to
tell any other employee that the main office was in-
volved in firing them. Garwood acknowledged that he
apologized for saying that Danzig fired Bacon and prom-
ised that he would not do so again. It was at this point
that Garwood said that Danzig told him to write a letter
as to why Bacon was fired. Garwood admits that Danzig
did not say what to put in the letter Garwood wrote the
letter on December 4, 1979 (G.C. Exh. 3):
Mr. Danzig,
Richard Bacon was hired in as a part-time man
for the evening shift.
After approximately one-week's work he sent a
friend of his to work in his place while he went to
Chicago on union business.
Upon his return from Chicago, I terminated him
for being absent from his employment. I cannot
keep training men to work and they feel that they
can show up for work when their schedule permits.
Thank you.
Donald Garwood 45
At the hearing, Garwood testified that what he had
written in this letter (G.C. Exh. 3) was false and was
written in response to Danzig's second telephone call to
him.
B. Respondent's Defense
In its defense, and in order to support a showing that
Respondent was in no way animated by union or similar-
ly protected concerns in the discharge of Bacon and, in
addition, in order to show lack of union animus in gener-
al and to undermine Garwood's credibility in particular,
Danzig testified that he had been himself a shop steward
and organizer in a labor organization in New York City,
that his father was a business representative of the Car-
171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
penters union, and that he had knowingly hired as his
area supervisor, Rodney Carr, whom he knew to be a
Teamsters shop steward and who had formally had been
involved in union contract negotiations with another em-
ployer.
With respect to further undermining Garwood's credi-
bility, the evidence shows that Danzig discharged Gar-
wood on March 1, 1980, after which Garwood filed a
charge alleging the unlawfulness of the discharge. The
Regional Office dismissed the charge. On March 1, 1980,
after Garwood had not appeared for work on February
28, Carr, in accordance with Respondent's normal prac-
tice, changed the locks on the Ayrway service station.
When Garwood showed up 2 days later at the station on
March 1, he found Carr there and asked him why he was
fired. When Carr told him it was because of his failure to
show up, Garwood asked to speak to Danzig. Carr made
a telephone call to Danzig and Garwood spoke privately
to Danzig in the Ayrway private office. Garwood had
already told Carr that he had tried to reach Danzig but
had been unable to do so whereupon Carr telephoned
Danzig at his home and gave Garwood the phone. After
this private conversation between Garwood and Danzig,
Garwood emerged and told Carr to tell Danzig that
"Bacon will win his case in June . .. I guarantee it."
It appearing that there was antagonism between Carr
and Bacon, 8 Respondent called James R. Bunch as a wit-
ness. Bunch, a former manager at the other service sta-
tion owned by Respondent in Indianapolis, testified that
2 days after Garwood was terminated on February 28,
around 10 a.m., in the presence of Charles Pollard, Steve
Whitlock, Garwood, and himself, Garwood asked Carr
why he was fired and Carr said it was because he had
not shown up for work. Bunch corroborates that, after
Carr called Danzig (because Garwood said that he
wanted to speak to him), Garwood told Carr that Gar-
wood would "do everything [he] could do to see that
Mr. Bacon won his trial when it came up in June." In
view of the fact that Bunch has no apparent interest in
this matter and that the General Counsel not only failed
to call Garwood in rebuttal to deny such a remark (the
General Counsel stated that Garwood was an uncoopera-
tive witness, had originally appeared pursuant to sub-
pena, and could not be found to testify in rebuttal be-
cause the General Counsel had been unable to again per-
sonally serve Garwood with a subpoena ad testificandum
requiring his further appearance) but failed to call either
Pollard or Whitlock, who according to Bunch were wit-
nesses to Garwood's statement, I credit Bunch in his un-
denied testimony that Garwood said that he would do
everything he could to see to it that Bacon won his case
when it came up in June. Under the circumstances, I
reject the General Counsel's argument that Garwood's
statement was not a retaliatory threat. While the state-
ment is not an outright promise of perjury, I conclude
that it adversely affects Garwood's credibility.
In cross-examination, Garwood admitted having re-
ceived money under false pretenses in filing an insurance
8 In the fall of 1979, Bacon had accused Carr of stealing from the
Company. Carr was neither discharged nor disciplined for this accusa-
tion. However, there had been an investigation into the allegation by a
private investigator.
claim while employed by Respondent. The matter was
not directly related to any element of fact in the instant
case but was elicited by Respondent to further affect
Garwood's credibility.
C. Discussion and Conclusion
1. The complaint alleges that on or about November
30, 1979, Respondent, through Supervisor Garwood, told
an employee (Bacon) that he was fired because he held
union office and engaged in other union and concerted
activities. There was no clear testimony or evidence in
support of this allegation. Evidence of conversations be-
tween Garwood and Bacon is entirely too conditional to
support such a pleading. Where Bacon particularly asked
Garwood whether the discharge was "because of the
Union," Garwood's sole response was that Danzig fired
Bacon after Garwood told Danzig that Bacon was in
Chicago on union business. This equivocal answer does
not support the allegation that Garwood made a state-
ment that Bacon, in fact, was discharged because of un-
lawful motivation by Danzig or himself or anyone else.
At most, Garwood's statement shows a mere sequence of
events but not causation. I therefore recommend that
such an allegation (par. 5(a)) be dismissed for insufficient
proof.
2. The General Counsel's case with regard to the alle-
gation of Bacon's unlawful termination is supported prin-
cipally in the testimony of Donald Garwood. Garwood's
credibility was attacked by his admission that he re-
ceived money under false pretenses by filing a false in-
surance claim while employed by Respondent and at
least arguably by his statement after his own discharge
that he would do everything he could to see to it that
Bacon prevailed in his hearing when it came up in June.
This does not give the General Counsel a supporting
witness whose credibility is unmarred. The corroboration
of Garwood, on which the General Counsel relies, flows
from conversations between Garwood and Bacon and
Garwood and Pollard. Pollard's credibility suffers from
the defect of being Bacon's friend and Bacon's suffers
from the defect of being the Charging Party. In addition,
I conclude, on the basis of cross-examination, that Bacon
was quite familiar with the Board's procedures including
the requirement of proof in discriminatory discharges
under Section 8(a)(3) of the Act. I include this element
notwithstanding that Bacon has not himself been a
charging party before the Board but on his admission
that he has given affidavits to the Board in his capacity
as president of Local 226, UAW. In addition, I found
Pollard's corroboration of Bacon through his post-No-
vember 28 conversation with Garwood (showing the dis-
charge related to the "none of your business" statement
rather than anything regarding Bacon's absence from
work) with respect to the reason for the discharge to be
both curt and without supporting detail. In spite of these
shortcomings, however, I remain unwilling to accept the
reasonableness and logic of Danzig's testimony. Again,
to credit Danzig, I would, as above noted, be required to
believe that Garwood would act against his own self-in-
terest in giving Danzig's St. Louis telephone number to
Bacon which would show that it was Garwood who ini-
172
A-W WASHINGTON SERVICE STATION
tiated the discharge rather than Danzig. I do not believe
that Garwood would have both contradicted his own
lack of participation in discharging Bacon and acted
against his own self-interest by involving Danzig. I
therefore do not credit Danzig and I conclude that Gar-
wood's version of the discharge including Danzig's prin-
cipal participation therein should be credited. I thus con-
clude that Danzig was the cause of the discharge and
that, in conformity with Garwood's testimony, as cor-
roborated by Pollard and Bacon, that Danzig said that
the principal reason for the discharge was the "smart
remark" on the application: "none of their business."
To begin with, apart from Danzig's and Carr's testimo-
ny with regard to their past sympathic participation in
union activities (with testimony does not necessarily
serve as a basis for the conclusion that Danzig did not, in
this case, unlawfully terminate Bacon), there is neverthe-
less no display of union animus by any of Respondent's
supervisors and no accompanying acts of independent
8(a)(1) violations. To be sure, Carr, an erstwhile union
negotiator, was hired by Danzig to be a supervisor. This
of itself does not mean that Danzig did not terminate
Bacon for unlawful reasons for Bacon, unlike Carr, was
not to be Danzig's supervisor. Further, there is neither a
showing of disparate treatment in the Bacon discharge
with regard to the use of forms and omissions on the
forms as a basis for discharging him nor a showing that
Bacon was attempting to organize Respondent's employ-
ees. This was the General Counsel's burden.
On the other hand, I cannot credit Danzig and was
struck by Danzig's lack of credibility in advancing the
facts: that it was purely Garwood who caused the termi-
nation, that he did not participate in it, and that the full
reasons for the Bacon termination appear in the above
letter Garwood drafted on December 4, 1979. I credit
Garwood in his testimony that the letter was a fabrica-
tion and written at the direction of Danzig pursuant to
Danzig's second telephone call of November 29, 1979.
Thus, if Danzig had admitted that he played a principal
part in the discharge, and alleged that the discharge was
due to the fact that Bacon should not have been engag-
ing in any other activities while employed by Respond-
ent notwithstanding that a supervisor had given him per-
mission, Danzig's testimony would be more credible.
However, in this case, Danzig did not so testify and not
only denied participating iri the discharge, alleging that it
was solely Garwood's decision, but asserted that Gar-
wood told him that Bacon was discharged for being
absent in Chicago and sending an inadequate substitute.
In this latter regard, I credit Garwood in his testimony,
as corroborated by Pollard and Bacon, that Bacon was
given permission to go to Chicago and that Pollard was
directed to be a pumpman during Bacon's absence
whether or not Pollard was hired specifically for that
reason or hired as a regular night-shift employee. Thus,
against Respondent, I discredit Danzig both in his moti-
vation for Bacon's discharge and in his insistence that
Garwood told him that the two reasons Bacon were
fired are contained in the General Counsel's Exhibit 3 in
evidence, a document whose truthfulness was disavowed
by its author.
I have already noted, on the other hand, the lack of
accompanying animus or 8(a)(1), the lack of disparate
treatment (Pollard like Brown was a known UAW strik-
er), and other defects (Bacon not acting against Respond-
ent's interest) in the substance of the General Counsel's
case.
Having attempted to balance the defects on both sides,
I nevertheless come to the conclusion that, principally
crediting the General Counsel's witnesses, Bacon's dis-
charge was not sufficiently proved to constitute a viola-
tion of Section 8(a)(3) of the Act. As I viewed Danzig
on the witness stand, and as I weighed the evidence ad-
duced by the General Counsel, I noted that the inference
which the General Counsel would have me draw is that
Danzig's motivation in causing the Bacon discharge was
due to the fact that (a) the notation of Bacon's local
union presidency appeared on the application form; and
(b) that Garwood told Danzig that Bacon, while em-
ployed by Respondent, was actively engaging in union
activities. The General Counsel also seeks to have me
infer that Respondent was upset by Bacon's union activi-
ty in general and how it might ultimately relate to Re-
spondent's own employees. A short answer to these as-
sertions is that such inferences are remote and are not
based on the existing evidence.
In short, the evidence shows that Danzig's inquiry to
Garwood related to adequacies in the execution of the
employment application forms and that it was after Gar-
wood told him that Bacon was in Chicago on union ne-
gotiations that Danzig said that it was "no way to run a
business" and to fire Bacon. Thus, there is no real evi-
dence of pretext: that Danzig was laying in wait, believ-
ing that an excuse would develop in his telephone con-
versation with Garwood that would permit him to dis-
charge an employee whom he found from his employ-
ment application to be a union president. If that were so,
I conclude that the allegedly crafty Danzig would not
have taken the risk of a possible explanation from Gar-
wood concerning what Bacon meant by "none of their
business" on the application form. While it is also true
that it can be argued that the phrase "none of their busi-
ness" clearly and only refers to International Harvester
and relates solely to Bacon's desire not to inform the
struck employer of his intermediate employment by Re-
spondent, there is nevertheless no tie in of a pretext by
Danzig, i.e., to make this call to Garwood using the
phrase "none of their business" as a pretext to have him
fired. As I have noted, had Garwood made a reasonable,
clear explanation of Bacon's phrase ("none of their busi-
ness") then Danzig's alleged pretextual scheme would
have been scuttled. Were Danzig as supremely devious
as the General Counsel argues, he would not have risked
his pretext on a plausible Garwood explanation. I thus
conclude that there is no pretext or scheme shown in the
evidence by which Danzig sought to discharge Bacon
because he discovered that Bacon was a local union
president. Even less am I convinced that it was Gar-
wood's remark that Bacon was in Chicago on union ne-
gotiations which triggered the discharge. Rather, on my
observation of Danzig and the entire circumstances of
the case, I conclude that what actually irritated Danzig
173
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was the fact that a new employee who had been hired,
contrary to the ususal forms insisted upon by Respond-
ent, was not giving his everyday services to Respondent
but rather, with the supervisor's acquiescence, was off in
Chicago on union negotiations or on any other activity
not directly related to his employment by Respondent.
Thus, I further conclude that under existing circum-
stances of Danzig's reasonable disquiet over the phrase
"none of their business," Danzig would have directed
Garwood to discharge Bacon had Bacon been off in Chi-
cago performing any other private business.
In reaching this conclusion, I am of course mindful of
my conclusion that Danzig was an untruthful witness in
denying his participation in the Bacon discharge. There
are other clearly suspicious circumstances herein, includ-
ing the existence of the notation on Bacon's application
that he was the local president, Garwood's remark that
Bacon was off on union negotiations, and the timing of
the immediate direction to fire Bacon. As to the first ele-
ment, I find no evidence of some underlying scheme or
pretext; as to the latter remark, I believe that to conclude
that it was such a remark that caused the discharge
would be an application of the post hoc propter hoc falla-
cy. Merely because Danzig was made aware of Local
President Bacon engaing in union activities does not
mean that was a causative factor in the subsequent dis-
charge.
While the matter is certainly not free from doubt, and
notwithstanding that Danzig was an unbelievable witness
for the large part, but viewing the record as a whole, I
conclude that the General Counsel has failed to prove by
a preponderance of the evidence that Respondent was
motivated by illegal considerations, or otherwise violated
Section 8(a)(3) and (1) of the Act, in its termination of
employment of Richard Bacon on November 28, 1979.
[Recommended Order for dismissal omitted from pub-
lication.]
174