Allen Milk Co.

National Labor Relations Board - Board Decisions

Feb 27, 1963

141 N.L.R.B. 18 (N.L.R.B. 1963)

1$ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allen Milk Company and its Agent, William H. Allen and Dairy,
Bakery and Food Workers Local 379, Retail , Wholesale and
Department Store Union , AFL-CIO. Case No. 9-CA-2613.
February 27, 1963
DECISION AND ORDER
On November 30, 1962, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Interme-
diate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
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 Interme-
diate Report and the entire record in this case, including the excep-
tions and brief, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.'
ORDER
The Board hereby adopts as its Order the Recommended Order of
the Trial Examiner.
1In its brief , Respondent contends that the amount of work remaining to be done by
Fillingane at the time of his discharge would, because of the temporary nature of his
duties, be limited to a 2-week period . Respondent therefore urges that the Trial Examiner's
backpay award be modified accordingly . As this is a matter which can more appropriately
be determined in compliance proceedings , the exception has no merit.
The Trial Examiner 's recommendation that the backpay obligation of the Respondent
include payment of 6 percent interest per annum is adopted However, for the reason
given in his dissent in Isis Plumbing & Heating Co., 138 NLRB 716, Member Rodgers
would not grant any interest in this case.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was held before Trial Examiner W. Gerard Ryan in Columbus,
Ohio, on September 5, 1962, on the complaint of General Counsel and the answer
of Allen Milk Company and its agent , William H. Allen, herein collectively called
the Respondents , and individually called Respondent Employer or Company and
Respondent Allen, respectively.' The issues litigated were whether the Respondents
violated Section 8(a)(1) and (3) of the Act. The General Counsel and the
Respondents participated in oral argument and filed briefs.
1 The charge was filed on June 7, 1962 . The complaint issued on July 20, 1962. Herein-
after , all dates refer to 1962, unless otherwise specified.
141 NLRB No. 6.
ALLEN MILK CO. AND ITS AGENT, WM. H. ALLEN 19
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENTS
The complaint alleged, the answer admitted, and I find that Respondent Employer
is and has been at all times material herein a corporation duly organized under
and existing by virtue of the laws of the State of Ohio.
Respondent Employer is engaged at its plant in Columbus, Ohio, in the processing
of milk and related dairy products for distribution and sale through its retail and
wholesale routes and its dairy store which is also located in Columbus, Ohio.
During the calendar year 1961, which is a representative period, the Respondent
Employer had an indirect inflow of goods and commodities in interstate commerce
valued in excess of $50,000, which were purchased and received from enterprises
located in the State of Ohio, which in turn had purchased and received the said goods
and commodities directly from points outside the State of Ohio. During the said
period the Respondent Employer's gross sales were in excess of $500,000. At all
times material to the issues herein, the Respondent Employer is and has been an
employer as defined in Section 2(2) of the Act, engaged in commerce and in opera-
tions affecting commerce as defined in Section 2(6) and (7) of the Act, respectively.
At all times material to the issues herein, Respondent Allen is and has been the
general manager and agent of the Respondent Employer acting on its behalf, and
a supervisor as defined in Section 2(11) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Dairy, Bakery and Food Workers Local 379, Retail , Wholesale and Department
Store Union , AFL-CIO, hereinafter referred to as the Union, is, and has been at
all times material herein , a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The alleged violation of Section 8(a) (1)
The complaint alleged that the Respondents interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed them in Section 7 of the Act by the
conduct of Respondent Allen in informing employee Harvey A. Fillingane that he was
"finished" ( terminated ) for having treated Respondent Allen unfairly by signing
a union card.
There is no evidence to support the 8(a)(1) allegation in the complaint that
Respondent Allen informed employee Fillingane on June 5 that he was "finished"
(terminated) for having treated Respondent Allen unfairly by signing a union card.
Respondent Allen was called as a witness by General Counsel under Rule 43b
and testified:
Q. Didn't you also ask Mr. Fillingane at that time if you thought that he had
treated you fairly by signing the card and not talking to you first?
A. I don't recall that I said that, no.
There is no other evidence on this matter. Fillingane was not questioned as to
whether Respondent Allen had made the alleged statement. I accordingly recom-
mend that paragraph 5 of the complaint be dismissed.
B. The violation of Section 8(a) (3) and (1)
The complaint further alleged that in violation of Section 8(a)(3) and (1) of the
Act the Respondent Employer on or about June 5, discharged Harvey A. Fillingane
and thereafter refused to reinstate him because of his membership in, sympathy for,
and activities on behalf of, the Union.
At all times material herein the Company and the Union had a collective-
bargaining agreement covering its driver- salesmen . The agreement did not include
employees in the Company's dairy bar.
The Company had a program whereby employees were hired as trainee salesmen
and given training to fit them to be driver-salesmen when vacancies occurred
Fillingane was hired as a trainee on April 16. On that same day, Jim Myer, a
driver-salesman , gave Allen a 2-week notice that he was going to quit on April 28.
On April 21 Allen offered Myer's route to Fillingane. Fillingane worked 1 day on
that route which was April 24 and then reported to Dick Morgan, the plant manager,
708-006---64-vol. 141-3
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he did not want the route and did not want to be a driver-salesman. Allen
explained to Fillingane that no other jobs were open in the plant and he could not
continue as a trainee since he did not want to be a driver -salesman . Allen informed
Fillingane that he would keep him at the plant until the Company found a replace-
ment for him as a trainee. On May 15, the Company found a replacement and
hired Norman Garcia. On May 15, Allen told Fillingane the Company would have
to terminate his employment at the plant as his duties were finished but he offered
Fillingane a temporary job at the dairy bar to paint it inside and out and to clean up
the grounds. Fillingane accepted and clearly understood that the job at the dairy bar
was temporary. Fillingane worked at the dairy bar from May 15 until his discharge
on June 5. The Company admitted that prior to June 5 it had no complaints as to
Fillingane's work.
During the afternoon of June 5, Fillingane signed a card to join the Union and also
signed an authorization for the Company to deduct his union dues. The card author-
izing deduction of dues came to the attention of Allen during the afternoon. Fill-
ingane was summoned to Allen's office. Allen told Fillingane that the checkoff
card was ineffective since Fillingane was not in the unit of driver-salesmen. Fill-
ingane, according to Allen's uncontradicted testimony, refused to discuss the situation
except to tell Allen to take the matter up with the Union. Allen told Fillingane that
Allen was running the Company and not the Union and then and there discharged
Fillingane. Allen denied that he discharged him for signing the dues checkoff card
or for signing a card to join the Union and contends that the only reason for the
discharge was Fillingane's belligerent, insolent, and uncooperative attitude in re-
fusing to discuss the matter and telling Allen to take the matter up with the Union.
When Fillingane was discharged there was still work for him to have done.
The Respondent Employer contends that upon the above facts the complaint should
be dismissed as the General Counsel has failed to prove by the required preponderance
of the evidence any violation of the Act. Respondent's motion to dismiss the com-
plaint upon which decision was reserved is hereby disposed of in accordance with
the findings and conclusions which follow.
The General Counsel contends that the foregoing facts prove a violation of Section
8(a)(3) and (1) of the Act.
Conclusions
The sequence of events on June 5, which culminated in Fillingane's discharge,
began when Fillingane signed cards for membership in the Union and authorization
for checkoff of dues. When the authorization for checkoff of dues came to Allen's
desk, Fillingane was summoned to Allen's office where the discussion above referred
to took place. Fillingane did not know that temporary employees were excluded
from the bargaining unit, mistakenly thought the probationary period was 30 days;
and was not aware that the Company had no obligation to check off his dues He
further believed that if the checkoff card had been accepted he would have been a
permanent employee and did not know whether other employees of the dairy bar
had their union dues deducted When those subjects were opened up by Allen I
believe it was natural for Fillingane to desire such problems to be referred to the
Union as his representative as he was unfamiliar with the terms of the collective-
bargaining agreement.
Allen may have associated Fillingane's reply to him to take the matter up with
the Union as indicating a belligerent, insolent, and uncooperative attitude, but I do
not accept it as the reason for the discharge. On the contrary, I believe and find
the discharge was made because of Allen's resentment at Fillingane's execution of
the checkoff of dues; his expectation that such dues would be deducted; and Fill-
ingane's belief if the card was accepted he would have been a permanent employee.
Such a discharge in the context of this case discouraged membership in the Union.
On the basis of the entire record, I find that the Respondent Employer, Allen Milk
Company, in discharging Harvey A. Fillingane on June 5, and not thereafter rein-
stating him, violated Section 8 (a) (3) and (1) of the Act.
IV. THE REMEDY
Having found that Respondent Employer has engaged in unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. Having found that Respondent
Employer discriminatorily discharged Harvey A. Fillingane on June 5, I shall recom-
mend that Respondent Employer offer him immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss of earnings that he
may have suffered by payment to him of a sum of money equal to that which he
ALLEN MILK CO. AND ITS AGENT, WM. H. ALLEN 21
normally would have earned from the aforesaid date to the date of Respondent's offer
of reemployment, less net earnings during said period. The backpay provided for
herein shall be computed in accordance with the formula stated in F. W. Woolworth
Company, 90 NLRB 289. Further, it will be recommended that Respondent pay
interest on the backpay due Fillingane, such interest to be computed at the rate of 6
percent per annum, and utilizing the Woolworth formula to accrue commencing with
the last day of each calendar quarter of the backpay period on the amount due and
owing for such quarterly period and continuing until compliance with this recom-
mendation is achieved. Isis Plumbing & Heating Co., 138 NLRB 716.
Since the discriminatory discharge found herein goes "to the very heart of the Act"
(N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4), and reflects an attitude
of opposition by Respondent Employer to the self-organization of its employees, the
commission of other unfair labor practices in the future, is reasonably to be anticipated
from Respondent Employer's past conduct. Accordingly, in order to effectuate the
policies of the Act, I shall recommend that Respondent Employer cease and desist
from in any manner infringing upon the rights of employees guaranteed by the
Act.
CONCLUSIONS OF LAW
1. The Respondent Employer is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of the Act.
3 By discriminating in regard to the hire and tenure of employment of Harvey
A. Fillmgane, thereby discouraging membership in the Union, Respondent Employer
has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the
Act.
4. By thus interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed by Section 7 of the Act, the Respondent Employer has engaged
in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record of the case, I recommend that Respondent Employer, Allen Milk
Company, its officers, agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Dairy, Bakery and Food Workers Local 379,
Retail , Wholesale and Department Store Union , AFL-CIO, or any other labor or-
ganization of its employees , by discharging employees or in any other manner dis-
criminating in regard to their hire or tenure of employment or any term or condi-
tion of employment.
(b) In any other manner interfering with , restraining , or coercing employees in
the exercise of the right to self-organization , to form labor organizations , to join or
assist the above-named Union or any other labor organization , to bargain collectively
through representatives of their own choosing, and to engage in any other concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer Harvey A. Fillingane immediate and full reinstatement to his former
position or to a substantially equivalent position , without prejudice to his seniority
or other rights and privileges , and make him whole for any loss of pay he may have
suffered as a result of his discharge in the manner set forth above in the section
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other data necessary to analyze and
compute backpay.
(c) Post at its plant in Columbus , Ohio, copies of the notice attached marked
"Appendix ." 2 Copies of said notice, to be furnished by the Regional Director for
'In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Ninth Region , shall, after being signed by a representative of Respondent Em-
ployer, be posted by it immediately upon receipt thereof , and be maintained for
a period of 60 consecutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered , defaced , or covered by
any other material.
(d) Notify the Regional Director for the Ninth Region , in writing , within 20
days from the date of receipt of this Intermediate Report, and Recommended Order,
what steps it has taken to comply herewith.3
Paragraph 5 of the complaint should be dismissed.
In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondent Employer has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Dairy, Bakery and Food Workers
Local 379, Retail , Wholesale and Department Store Union , AFL-CIO, or in
any other labor organization of our employees, or in any other manner dis-
criminate in regard to their hire or tenure of employment or any term or con-
dition of their employment.
WE WILL offer to Harvey A. Fillingane immediate and full reinstatement to
his former or substantially equivalent position , without prejudice to any seniority
or other rights previously enjoyed , and make him whole for any loss of pay
suffered as a result of the discrimination against him.
WE WILL NOT in any other manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor organiza-
tions, to join or assist the above -named Union , or any other labor organization,
to bargain collectively through representatives of their own choosing , to engage
in concerted activities for the purposes of collective bargaining or other mutual
aid or protection , or to refrain from any or all such activities.
ALLEN MILK COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
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.
Employees may communicate directly with the Board's Regional Office, Transit
Building, Fourth and Vine Streets , Cincinnati , Ohio , Telephone No. Dunbar 1-1420,
if they have any question concerning this notice or compliance with its provisions.
J. Weingarten , Inc. and Retail , Wholesale and Department Store
Union, AFL-CIO. Case No. 16-CA-1671. February 27, 1963
DECISION AND ORDER
On November 7, 1962, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent has engaged in certain unfair labor practices, but that
these did not warrant remedial action, that the Respondent had not
engaged in other unfair labor practices as alleged in the complaint,
141 NLRB No. 4.