Big Three Industries, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1971

192 N.L.R.B. 370 (N.L.R.B. 1971)

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Big Three Industries , Inc. and Roy C. Ponce. Case
21-CA-9687
July 29, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS'
FANNING AND JENKINS
On June 16, 1971, Trial Examiner Richard D.
Taplitz' issued his Decision in',the above-entitled
proceeding, 'finding that Respondent had engaged in
and was engaging in certain unfair labor practices
alleged :in ' the complaint and recommending that it
cease and desist therefrom and' take certain affirma-
tive action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that Respondent had not engaged in certain other
alleged unfair labor practices, and recommended that
the complaint be dismissed as to them. Thereafter,
Respondent filed exceptions to the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
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 Trial Examiner and hereby orders that
Respondent, Big Three Industries, Inc., Long Beach,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLrrz, Trial Examiner: This case was
1 All dates are in 1970 unless otherwise specified. There is some
confusion in the record as to the date that this interview occurred. In a
pretrial affidavit Ponce stated that he was interviewed on November 2 and
that he started work the same day. In his testimony at the trial he also said
that he started work the same day as the interview but it was established
through other testimony that he worked only October 21 and 22. Larry T.
Burke, the general manager of Respondent , was also uncertain of the date
of the interview, though based on the date on Ponce's application he
tried at Los Angeles, California, on March 23, 1971. The
charge and amended charge were filed by Roy C. Ponce on
December 4, 1970, and January 20,197 1, respectively, and
the complaint was issued on January 25, 1971. The issues
litigated were whether-Big Three Industries Inc., herein
called- Respondent (a) discharged Ponce because of his
activities on behalf of General Truck Drivers, Chauffeurs &
Helpers Local 692, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America,
herein called the Union; and (b) unlawfully interrogated
and threatened employees concerning their union activities.
Counsel for the General Counsel and Respondent
appeared at the hearing; all parties were given full
opportunity to participate, to introduce relevant evidence,
to, examine and cross-examine witnesses, to - argue .orally,
and to file briefs. A brief, which has been- carefully
considered; was filed on behalf of theGeneral Counsel.
Upon the entire record of the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Texas corporation, , is engaged in the
manufacture of nitrogen, oxygen, and argon gasses and in
the sale of welding supplies and equipment. Its main office
is in Houston, Texas, but it is also located in various places
in the United States, including a warehouse and pumping
station in Long Beach, California, herein called the Long
Beach plant. Annually, in the normal course of its business
operations, Respondent, nationwide, ships products valued
in excess of $50,000 across state lines.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
1. Ponce's application and hiring
After answering a newspaper ad and making an
appointment by telephone, Ponce went to the Long Beach
plant on October 12, 1970,1 to be interviewed for a
truckdriver's job .2 Ponce filled out an application for
employment and was interviewed by Joe Mececca. Ponce
told Mecceca that he was a member of the Union and that
testified that it was October 12. I have accepted the date on the application
as the date of the interview.
2 On March 23, 1971, the date of a hearing on a related representation
proceeding in Case 21-RC-12034, according to the uncontradicted
testimony at that hearing, the employee complement at the Long Beach
plant consisted of six warehousemen and warehouse clericals, four
truckdnvers, three salesmen, and one office clerical . At an earlier date
there were some six drivers.
192 NLRB No. 72
BIG THREE INDUSTRIES, INC.
his prior employer, Pacific Motor Trucking Company
(herein called PMT), was a union company. Mececca said
that Ponce would probably get the job and took him into
the office of Larry T. Burke, Respondent's general manager
at the Long Beach plant and an admitted supervisor. Ponce
also told Burke that he was a union member and had
worked for a union trucking company. Burke did not reply
except to make some type of hand motion .3 Ponce's
application listed his last employer as PMT. It stated that
he was employed there as a truckdriver until December of
1969, when he was, laid off, and that since that time he had
worked picking grapes and walnuts and had been collecting
unemployment insurance. The application also listed a Mr.
Lama as the, person under whom he had worked at PMT. It
also stated that he-had had more than three tickets in the
last 3 years.
On October 18, Mececca called Lama of PMT to check
Ponce's references. The conversation was such that
Mececca wrote on Ponce's application that Ponce had a
good work reference and had been laid off due to lack of
work. In addition, Mececca. told Burke that Lama told him
that Ponce's work record was superb, that he was eligible
for rehire as soon as things picked up, and that he would
definitely be hired back.
Ponce began work on October 21 and he was discharged
on October 22.
2. Ponce's protected activity
On October 22, which was Ponce's second and last day of
employment,-he spoke to fellow truckdriver Robert Jiminez
and asked him why the Company wasn't unionized. Jiminez
replied that it was because the boss didn't want the Union
but that he really didn't know and that Ponce should speak
to Supervisor John McDonald about it .4 Later the same
day, Ponce did ask McDonald why the Company wasn't
Union and McDonald answered that it was because the
Company didn't want it. Still later that day, about 1:30
p.m., Ponce and another employee named Peterson went to
the union office during their lunch time and spoke to Gene
Bedford, the president of the Union. Bedford gave them
union authorization, cards which they filled out and signed.
Bedford also gave them some other cards for the remaining
drivers to sign.- Ponce then went back to the Long Beach
plant where he, spoke to employees Jiminez, Monte, and
Stewart, each of whom signed authorization cards.5 When
he spoke to other employees, Ponce told them to fill out the
cards, but to be discreet about it. The same day Ponce
returned the cards to the Union. About 7:30 p.m. that
eveutng, Burke called Ponce into his office and discharged
him.6
3 In his pretrial affidavit Ponce stated that Burke indicated by a hand
motion to keep it quiet. In his testimony at the Trial Ponce testified that
Burke made a hand motion for bun to keep it quiet, but, upon being led by
the General Counsel, he added that Burke said that he should keep it quiet
I do not credit Ponce's addition to his testimony nor do I give any weight
to his interpretation of the hand motion. As is set forth in more detail
below, I do not believe that Ponce is worthy of any credence.
4 Burke credibly testified that McDonald did not have authority to hire,
fire, transfer, suspend, lay off, recall, promote, assign, reward, discipline, or
recommend any of those things concerning employees. However, whether
or not he was a supervisor within the meaning of the Act, I find he was an
agent of Respondent and Respondent was responsible for his conduct.
When Jiminez was hired, he was told by Mececca that McDonald was a
3. The discharge
371
There is a sharp dispute as to what occurred at the
discharge interview . Ponce testified as follows: Burke told
him that he had heard from one of the employees that
Ponce was asking why the Company was not Union. Ponce
denied saying anything and Burke replied that he was
disgusted with Ponce and he didn 't think Ponce would do a
thing like that when he gave him the job. Ponce asked
Burke if he was going to be terminated . Burke answered
that he would have to let Ponce go because Ponce was in
the Union and he didn't want any of the employees
involved in a union . Burke also told Ponce that he was not
qualified as a driver or as an employee of the Company.
After some talk about Ponce's qualification , Burke told
Ponce to come back in the morning and that it would be up
to McDonald whether or not Ponce continued to work.
Burke's version of the conversation was substantially
different . He testified as follows : Burke knew of Ponce's
union membership at the time he hired him ; he didn't see
anything wrong with it and nothing was said about the
Union during the terminal interview. Burke did not tell
Ponce that McDonald would make the final decision as to
his employment. Burke assigned Mececca to do the
interviewing for him, McDonald didn 't even know Ponce
had been hired, and McDonald was not consulted on any
personnel matters. Burke told Ponce that he was not
qualified to be a driver for Respondent and that he was
going to be terminated. Burke confronted Ponce with his
application for employment and asked him whether it was
true that Lama had been his supervisor during his prior
employment. Ponce admitted that he had lied on the
application. Burke said he had no alternative but to
terminate him and asked him to come back the next
morning when the papers and check would be ready.
Burke impressed me as a credible witness. The same is
not true of Ponce. Ponce's assertion that in the terminal
interview he was told that he was to be fired because he was
in the Union is difficult to believe in the face of Ponce's
own admission that he told Burke before he was hired that
he was'a union member and Burke hired him anyway. It is
even more difficult to believe Pence's testimony that Burke,
the general manager of the Long Beach plant , assigned the
final decision on whether to keep or fire Ponce to a low
echelon managerial employee such as McDonald. Such an
assignment might have occurred if the real reason for the
proposed discharge was Ponce 's questionable work ability,
but it's hardly likely that such a delegation would have been
made if the reason were Ponce's union activity. Ponce's
many admissions on the stand that he had given false
supervisor and to report to him. When Ponce was hired,'Burke introduced
McDonald to him as a supervisor and told him to report to McDonald who
assigned work to him . The same was true for employee 'Robert D. Monte,
By holding McDonald out to the employees as a supervisor , Respondent
was at the very least investing bum with the apparent authority to act as its
agent.
5 Monte's card, G.C. Exit . 6, is dated October 23, bin Ponce credibly
testified that it was signed with the others on the 22d.
6 Jiminez testified that Peterson told him in Ponce's presence'that Burke
had found out about the union cards that Ponce had passed around. Ponce
did not corroborate that testimony. Peterson did not testify and, in the
absence of any evidence concerning the source of his belief that Burke
knew about the cards , little weight can be given to Jiminec ' testimony.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
information on his employment application did not add to
his credibility. His application showed that he had been a
truckdriver when he left PMT. In his testimony he also
averred that he had been a truckdriver at that time, but he
recanted that testimony and said that he was working on
the dock then and that he was not a truckdriver. He
testified that to his knowledge he did not take any reduction
in pay when he switched from truckdriver to loader.
However, after further examination, he acknowledged that
truckdrivers earned $4.21 an hour and loaders $4.15. He
admitted that he was not laid off by PMT as he had claimed
in his application but that he had been discharged. Though
he equivocated on the question of who his supervisor was at
PMT, he acknowledged that on his grievance protesting his
discharge from PMT his supervisor was listed as Reece
(misspelled Rice in the grievance). His application had
listed his supervisor as a Mr. Lama. Though PMT was
listed on his application as his last employer, he admitted
on the stand that he worked for two different firms between
leaving PMT and being hired by Respondent.
I credit Burke's version of what occurred at the terminal
interview.
The following morning, Ponce came back to the Long
Beach plant to pick up his check.?
4. The postdischarge events
Jiminez, testified that on Monday (October 26) he
returned to work and, asked McDonald what happened to
Ponce and that all McDonald told him was that Ponce was
terminated. Upon further questioning, Jiminez added that
McDonald told him that Ponce's application was filled out
incorrectly. When questioned still further, he testified
McDonald told him that they had found out that Ponce
didn't put down on the application that he was a union
member. McDonald did not take the stand and therefore
Jiminez' testimony is uncontradicted, but nonetheless I find
it completely incredible. The application does not ask for
an applicant's union affiliation and Ponce did tell Burke
about his union membership. In addition, the manner in
which Jiminez kept adding to his testimony cast doubt on
his credibility. I therefore do not credit Jiminez in this
regard.
In the early part of November, Burke spoke to Jiminez
alone in the plant hallway and asked him if he had'signed a
union card. Jiminez answered that he had and Burke
replied that some people would probably want to talk to
him.8
On March 5, 1971, a National Labor Relations Board
election was held in Big Three Industries, Inc., Case
21-RC-l2034, On some unknown date before that'election,
a number of the drivers got together and decided to talk to
Burke about getting a wage increase. Some eight employ-
ees, including Robert Monte, approached Burke and asked
him for a raise. Burke replied that they had not been there
long enough for a raise and that all of them had already
7 I do not credit Ponce's assertion that he spoke to Burke when picking
up the check and Burke told torn that he was terminated because he was in
the Union and that McDonald had repeated what he had said about the
Union. It is noted that in Ponce's pretrial affidavit he made no mention of
a discussion concerning the Union at this meeting. for the reasons set
forth above, I do not believe Ponce to be credible.
received a raise except for Monte, who had not moved "up
on a truck." Monte said that the Union was there offering
them better wages, more benefits , and things in that
category. Burke answered that nobody had been therefor a
year and he would not give the raises.. Burke and Monte got
into a heated discussion in which Burke said that if Monte
didn't like it there his termination paper could be drawn up
immediately. Monte replied that he wasn't giving an
ultimatum to Burke and that he liked working there but
that he needed and_ deserved a raise,and he . thought the
other drivers- felt the same way. Burke repeated that if
Monte didn't like it he could be terminated then and .that
Respondent would go to contract labor drivers.9,
The election was scheduled for 9 a.m. on May 5,1971. At
8:30 on that date, Burke called Jiminez to the corner of the
loading dock, told him that he had gone out on a limb for
him the day Respondent hired him, and asked if he could
do him (Burke) a favor and vote against the Union. Jiminez
told him that he would do it.
Sometime well before the election' Burke told employee
Monte that when business picked up, Monte had a chance
to work as a pumper. That position, according to Monte,
could be considered a promotion. About an hour before the
election , Burke had another conversation with Monte in
which he told Monte that any promises he had made to him
could not come true if the Union did come in.
5. Respondent's position
On October 22, which was 4 days after Mececca had
checked Ponce's references with PMT and 1 day after
Ponce began work, Burke reviewed Ponce's application and
became suspicious because of the long period of unemploy!-
ment since his last job. Burke found it hard to believe that a
man with such an excellent work record would have been
out of work because of a layoff for 10 months with a
company as large as PMT.
That morning, Burke called PMT and asked to speak to
the man who had been Ponce's supervisor. He was put in
touch with Harry Reece . Reece in fact was the man that
Ponce had worked for at the time of his discharge. Burke
asked Reece who Lama was and Reece answered that he
was one of the working foremen there but that 'Ponce
reported to him (Reece). Burke asked if Ponce was eligible
for rehire and Reece answered that he was not. When
Burke asked the reason , Reece replied that Ponce had been
terminated because he had gone AWOL. There was no
discussion of Ponce's work'record but Burke did learn that
Ponce was a dock worker and not a truckdriver at the time
of his termination and that he had not been laid off as he
had claimed.
According to Burke's testimony , he felt that he had been
misled by Ponce's application and that he had been lied to
and tricked into accepting Lama's statement to the effect
that Ponce was a good worker and eligible for rehire. On
8 Though in general I do not believe Jiminez to be a credible witness,
there was nothing inherently unbelievable in his testimony concerning this
conversation, and Burke, who took the stand, did not deny Jiminez'
assertions.
9 These findings are based on the testimony of Monte which was
corroborated in substantial part by Jinunez.
BIG THREE INDUSTRIES, INC. 373
the same day, Burke called Ponce into his office and
discharged him.
Respondent contends that Ponce was discharged because
he, lied on his application and tricked Respondent into
calling Lama. In addition, Respondent contends that
another reason for the discharge was that a review of the
application indicated that Ponce had three tickets in the last
3 years and company policy was not to hire such persons.
However, this does not bear scrutiny.- Respondent does
have a long-established written policy that it will not hire
any driver who has more than three moving traffic
violations and/or accidents in the past 3 years. Ponces
application does show that he received three tickets during
the last 3 years, but there is no way that Respondent,
through an examination of the application alone, could
have determined whether the tickets Ponce received were
for moving or nonmoving (i e. parking) violations or indeed
whether any of =the tickets even resulted in any findings of
violation . After the discharge, Respondent did learn the
details of the tickets, but whether or not that information
would be appropriately used in determining whether Ponce
was such a ,dangerous driver that Respondent should not be
ordered to put him back on the road, Respondent cannot
rely on it as a reason for the discharge.
Respondent also pointed out that Burke had hired Ponce
as a contract laborer on a temporary basis. Under
longstanding written company rules, no hiring is permitted
without the prior approval of the personnel department in
Houston. Burke never sent Ponce's application to Houston
for approval because before sending it he found that the
application contained misstatements of fact and Ponce was
fired. However, no matter what Respondent's internal
policies are with regard to hiring, Burke did put Ponce to
work. Ponce was an employee within the meaning of the
Act. Whether he was a temporary, probationary, or any
other type of employee, Respondent would violate the Act
if it discharged him because of his union activity.
B. Analysis and Conclusions
1. The alleged violations of Section 8(a)(1) of the
Act
The evidence establishes four instances that could
arguably be considered violations of Section 8(a)(1) of the.
Act. These were: (a) the interrogation of Jiminez by Burke
as to whether Jiminez had signed one of the union cards, (b)
the meeting between Burke and employees in which Burke
rejected their demand for a wage increase, (c) the request by
Burke on the morning of the election that Jiminez do him a
favor and vote against the Union, and (d) Burke's statement
to Monte the morning of the election that promises could
not come true-if the Union came in.
With regard to (c) and (b), I do not believe that the
General Counsel has proved by a preponderance of the
evidence- that Respondent violated the Act. Though it can
be argued that Burke's statement that he had done Jiminez
a favor in hiring him implied a threat that'Burke could also
fire him if he did not do the favor Burke requested of him,
i.e. voting against the Union, I believe that such an
interpretation would be straining the facts. Burke was
simply making a strong sales pitch and was trying to use his
"good guy image" so as to, be more effective. Such
propaganda is not unlawful under the Act unless it contains
some threat or promise. An employer can ask his employees
to vote against the Union and that, I believe, was all that
Burke did. As to Burke's meeting with the employees in
which the wage increase was discussed, I do not believe that
Burke was trying to or did either undermine the Union or
interfere with the concerted activities of the employees. The
employees came to him, not as representatives or members
of the Union, but as individuals who wanted a wage
increase. Though that in itself is a protected activity under
the Act, the employees gave the appearance of asking
Burke what he would give them to stay out of the Union. It
is difficult to give any other interpretation to Monte's
asking for a wage increase while telling Burke that the
Union was there offering them such things as better wages.
If Burke-did anything other than turn the employees down,
he might well have violated the Act. The heated discussion
that Burke had with Monte and Burke's statement to the
effect that he could draw up discharge papers for Monte
appear to relate to Monte's individual request for special
treatment and not to any concerted or union activity.
Burke's statement that he could use contract labor drivers
also did not appear to be keyed to any concerted or union
activities of the drivers but arose from his heated discussion
with Monte. Looking at this conversation in its entire
context, I do not believe that Burke violated the Actby any
of his statements.
With regard to the matters set forth in (a) and (d), I find
that Respondent did violate the Act. In determining
whether interrogation concerning union activities violates
Section 8(a)(1) of the Act, the Board has held that all the
circumstances in which the interrogation occurs must be
considered. Blue Flash Express, Inc., 109 NLRB 591. In that
case, the Board dismissed a complaint where such
interrogation was accompanied by a statement from the
company as to a legitimate reason for the interrogation,
where the company representative assured the employee
against reprisals, and where the company had not
demonstrated union hostility. See also N.L.R.B. v. Cameo,
Inc., 340 F.2d 803 (C.A. 5), where such matters as the place
of the interrogation and the rank of the official doing the
questioning were also considered. Though in Struksnes
Construction Co., Inc., 165 NLRB 1062, the Board was
concerned with a polling of employees rather than
individual interrogation, some of the language in that case
is instructive. The Board held:
In our view any attempt by an employer to ascertain
employee views and sympathies regarding :unionism
generally tends to cause fear of reprisal in the mind of
the employee if he replies in favor of unionism and,
therefore, tends to impinge on the Section 7 rights. As
we have pointed out, "An employer cannot discriminate
against union adherents without first determining who
they are." Cannon Electric Company, 151 NLRB 1465,
1468. That such employee fear is not without founda-
tion is demonstrated by the innumerable cases in which
the prelude to discrimination was the employer's
inquiries as to the union sympathies of his employees.
The Board went on to hold that in a polling situation a
violation would be found unless the purpose of the poll was
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to determine the truth of a union's claim of majority; this
purpose was communicated to the employees; assurances
against reprisal were given; the employees were polled by
secret ballot; and the employer had not engaged in unfair
labor practices or otherwise created a coercive atmosphere.
Jiminez was interrogated about his union activity,
specifically whether he signed a card, by the highest
ranking official of Respondent at the Long Beach plant.
Though the interrogation ,.did not take place in Burke's
office, Jiminez was singled out and spoken to alone. Burke
did not tell him why Respondent wanted to know whether
he had signed a union card except to ; state-that people
would want to talk to him. Burke gave no assurances that
Jiminez would be free from reprisals. In addition, Jiminez
knew that Respondent was hostile to the Union. It was
Jiminez who told Ponce in October that the Union was not
in at the Long Beach plant because Respondent did not
want it. Respondent's conduct after Burke's interrogation
of Jiminez made its hostility toward the Union even more
apparent. Thus, Burke asked Jiminez to vote against the
Union as a personal favor to him and Burke told Monte
that if the Union came in, any promises that had been made
could not come true. The latter statement I find to be a
violation of Section 8(a)(1) of the Act. Burke had held out
the possibility of Monte's being assigned to a better
position. On the morning of the election, Burke warned
Monte that he-wDuld-not be considered for wetter-position
unless the employees abandoned the Union. By such
conduct, Respondent, through Burke, interfered with the
rights of employees guaranteed by Section 7 of the Act and
therefore violated Section 8(a)(1) of the Act 1° I also find
that Burke's interrogation of Jiminez concerning whether
he signed a union card constituted a violation of Section
8(a)(i) of the Act.
2. The discharge of Ponce
Respondent was hostile toward the Union. However, that
hostility was not so intense as to prevent it from hiring
Ponce who had acknowledged in an initial interview that he
was. a union member . The hostility was expressed in the
matters found to be violative of Section 8(aXl) above, but
none of those matters are of such far-reaching significance
as to indicate a likelihood that Respondent would discharge
an employee for engaging in union activity . Thus, it appears
that Respondent bore an animosity , though not of any
massive proportions, toward the Union . In the face of this
animosity, Ponce engaged in very substantial union
activities . He asked an employee and McDonald why
Respondent wasn't unionized ; he went to the union hall,
secured union authorization cards, signed and had
employee Peterson sign one, and had employees Jiminez,
Monte, and Stewart sign cards at the plant . Within a matter
of hours after this activity , Ponce was discharged. However,
for the General Counsel to establish a prima facie case, he
would have to establish that Respondent had knowledge of
tQ. Though the complaint does allege that between October 21 and 23
Respondent thieatened employees with discriminatory action if they did
not abandon the Union, there is no allegation to the complaint which
covers action by Respondent in early March 1971 when the statements to
Monte were made . However, there was no objection to the admission of
evidence relating to that incident, the issue was closely related to a matter
the union activity before the discharge. Respondent did
know through McDonald that Ponce had questioned why
the Long Beach. plant wasn't unionized, but it is difficult to
believe that Poiice,was discharged for-asking that question.
At the time of his hire, Respondent .knew that Ponce's last
employer, was unionized and that he himself was a union
member. Such a question by,Ponce would-not indicate that
he intended to organize the Long Beach plant=and it is
doubtful. that Respondent would take such a question with
undue alarm. There is no credible probative evidence that
Respondent had any'knowledge that Ponce had gone to the
Union; signed an authorization card, and had other
employees sign such cards. As noted above, Jiminez'
testimony concerning Peterson's remark that Burke had
found out about the union cards is not probative evidence
that Burke in fact knew about the cards. It cannot, be
determined from the record whether. Peterson's remark was
based on rumor or fact. -Ponce attempted to inject the
missing ingredient of company knowledge in his testimony
concerning his termination and -day after termination
interviews, but I am unable to credit that testimony. As the
Board held in Mook Weiss Meat Packing. Company, 160
NLRB 546: "Unquestionably, knowledge by the Respon-
dents of the dischargees' union activity is a prerequisite to a
finding that the discharges were made for that reason, and
the- General Counsel has the burden of proving this beyond
mere suspicion-'or surmise." See also Kayser-Roth Hosiery
Co., Inc., 166 NLRB 372. Under the Board's so-called
"small plant doctrine," if Ponce's union activities were
carried out in such a manner or at such times that in the
normal course of events Respondent would have had to
notice them, an inference would be warranted-that the
Company did have'knowledge of his union:activity. Weiss
Plow Welding Co., Inc., 123 NLRB 616; ;Hadley Manufac-
turing Corporation, 108 NLRB 1641; Saxon. Paint -Stores,
Inc.,- -160 NLRB 1757. However, Ponce and. Peterson -signed
the cards at,the union hall. It_ is unlikely that, Respondent
had knowledge of that activity. Ponce did secure the
signatures of three other employees at the Long Beach plant
but apparently he was quite conscious of secrecy because,
when he spoke to those employees, he told them to fill out
the cards, but to be discreet about it. None of these actions
were so open or widespread that it could be logically
inferred that Respondent must have noticed them.'I find
that General Counsel has failed to prove that Respondent
had knowledge of Ponce's union activities. However, even
if such knowledge could be-inferred and, therefore, a prima
facie' case made out by the General Counsel, I believe that
Respondent's defense is sufficient to'rebut it: -
Burke called -PMT on October 22, found. out that Ponce
had made very material misrepresentations on his-employ-
ment application, and discharged him the same day. These
misrepresentations related to the fact that Ponce had been
discharged and not layed off by PMT, that Ponce was not
eligible for rehire with PMT, and that Ponce had been a
dock worker and not a driver at the time of his discharge
set, , forth in the complaint, and the issue was litigated . Where, as here, an
issue relating to the subject matter of a complaint is fully litigated at a
hearing, and there is no special showing of detriment to the Respondent,
that issue must be decided even though it is not specifically alleged to be
an unfair labor practice in the complaint . Curtiss-Wright Corp., 3t7, F.2d 61
(C.A.,3, 1965). See also Garland Corp., 162 NLRB 1570.
BIG THREE INDUSTRIES, INC.
from PMT. In addition, Burke-believed that Ponce had
tricked Respondent into calling the wrong man at PMT for
a recommendation in order'to cover up his misstatements
on the application. These reasons given by Respondent for
the discharge were not so unsubstantial as to warrant an
inference that another, reason was the true cause of
discharge. Burke had good reason to be suspicious as to the
accuracy of the application because of the unusual length
of layoff from the last employer, but it is a matter of
speculation why he picked up: the application and again
reviewed it the day after Ponce had been hired. Some
question is also raised by the fact that Respondent urged as
one of the reasons for the discharge the fact that Ponce had
"moving violations", when at the time of his discharge
Respondent did not know whether they. were moving
violations or not. However, as to the reinspection of the
application by Burke, I am unable to find that such an
action, occurring as it did the day after hire, was so
unrelated to the ordinary initial hiring procedure as to
invalidate Respondent's defense. It is also noted that Burke
credibly testified that he called PMT in the morning of
October 22. Ponce did not go to the union hall and obtain
the authorization cards until about 1:30 p.m. that day and
all his union activity at the plant occurred after that. I am
also unable to find that the "traffic ticket" defense
significantly undermines the Respondent's primary de-
fense.
Viewing the case as a whole and particularly noting that
Respondent hired Ponce knowing that he was a union
member,, that the General Counsel's proof that Respondent
had knowledge of Ponce's,activities with respect to securing
union authorization. cards was at best 'weak, and that
Respondent's primary reason for discharging Ponce was of
substantial weight and was not rebutted by the General
Counsel, I find that the General Counsel has not proved by
a preponderance of credible evidence that Ponce was
discharged in violation of Section 8(a)(1) and (3) of the Act
because of his union activity. I shall therefore recommend
the dismissal of those sections of the complaint that allege
that Ponce was discharged in violation of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate and substantial relation to trade, traffic, and
commerce among the several states and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
11 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become Its findings, conclusions , and Order, and all objections thereto
shall be deemed waived for all purposes.
375
to cease and desist therefrom- and take certain affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the-Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act. '
3. By interrogating an employee as to whether hessigned
a union authorization card and by warning an employee
that he would not be considered for a better position unless
the employees abandoned the Union, Respondent inter-
fered with, restrained, and coerced its employees in the
exercise of the rights guaranteed to them by Section 7 of the
Act in violation of Section 8(a)(i)"of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. Except as set forth above, the General Counsel has
not established by a preponderance of the `evidence that
Respondent has violated the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following
recommended: it
ORDER
Respondent, Big Three Industries, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees as to whether they signed
authorization cards on behalf of'General Truck Drivers,
Chauffeurs & Helpers Local 692, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America or any other union.
(b) Warning employees that they will not be considered
for better positions unless they abandon that or any other
union.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its Long Beach, California, plant copies of the
attached notice marked "Appendix." 12 Copies of the
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notice is not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 21, in
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
writing, within 20,-days from the date of receipt of this
Decision, what steps, Respondent has taken to' comply
herewith.13
IT IS ALSO ORDERED that _the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
is In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for' Region 21,' in` writing , within 20 days
from the date of `this Order; what steps the Respondent has taken to
comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the -United States Government
Pursuant to the recommended Order of a Trial'Examiner of
the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act,
as amended, we hereby notify you that.,
After a tri al at which all sides had a chance to give
evidence, -a 'Trial Examiner oft the National Labor
Relations Board has found that we violated the National
Labor Relations Act and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or, all, these things except to
the,extent ,that membership in a union may be
required pursuant to, a lawful union-security
clause. -
WE WILL NOT -,do= anything that restrains or coerces
employees with respect to these rights.
WE WILL NOT interrogate our employees as to
whether they signed,-authorization cards on behalf of
General Truck Drivers, Chauffeurs &Helpers Local
692, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen, & Helpers of America, or any
other union., -11
WE WILL NOT warn employees that they will not be
considered for better positions unless they abandon that
or any other union.
Dated By
BIG THREE INDUSTRIES,
INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be -directed to the Board's Office,
Eastern, Columbia Building, 849 South Broadway, Los
Angeles, California 90014, Telephone 213-688-5200.