Beaver Meadow Creamery

National Labor Relations Board - Board Decisions

Apr 3, 1953

103 N.L.R.B. 1504 (N.L.R.B. 1953)

1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BEAVER MEADOW CREAMERY 1 and BERT DELARME . Case No. 6-CA-500.
April 3, 1953
Decision and Order
On October 31, 1952, Trial Examiner Robert E. Mullin issued his
Tntermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of the Act, and recommending that it cease and
desist therefrom, and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a supporting
brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate Re-
port, the Respondent's exceptions and brief, and the entire record in
the case, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner with the exceptions and modifica-
tions set forth below :
1. In agreement with the Trial Examiner, we all find that the Re-
spondent interfered with, restrained, and coerced its employees in
violation of Section 8 (a) (1) of the Act, as fully set forth in the
Intermediate Report.
2. We all also agree with the Trial Examiner's conclusion that the
Respondent discharged Bert DeLarme in violation of Section 8 (a) (3)
and (1) of the Act, as fully set forth in the Intermediate Report.
Contrary to the Trial Examiner, however, the Board is unanimously
of the opinion that the Respondent's offer of reinstatement to DeLarme
on September 23 was unconditional at the time it was made. The
Board does not regard as an improper condition the fact that the offer
was made to avoid any prejudice to DeLarme pending the outcome of
the unfair labor practice proceeding. The Respondent had a right to
discharge DeLarme at any time for cause. It did no more than to in-
form him of its legal right in the event the charge could not be sup-
ported by a preponderance of evidence' Moreover, while DeLarme
could choose, as he did, to join the strikers when confronted by the
2 The name of the Employer appears as amended at the hearing.
2 The Intermediate Report contains a misstatement of fact which does not affect the
Trial Examiner's ultimate conclusion , or our concurrence therein. Accordingly , we note
the following correction :
The record shows that the Union initiated an organizational campaign at the Respond-
ent's creamery on September 6, 1951, not early in September 1951, as the Trial Examiner
found, and that DeLarme was discharged on the following day
8 Cf. Kansas Milling Company v. N. L. R. B., 186 F. 2d 413 ( C. A. 10).
103 NLRB No. 123.
BEAVER MEADOW CREAMERY 1505
picket line, the Board has declined to find that an unconditional offer
of reinstatement is made conditional because of the existence of a
strike.'
Chairman Herzog and Board Members Houston and Styles believe,
however, that the Respondent, following the termination of the strike,
was under an obligation to renew its offer to DeLarme in order to toll
a back-pay award from that time. Respondent's letter to DeLarme
clearly stated that unless he accepted "promptly" he would "be consid-
ered to have voluntarily terminated [his] employment." The offer was
therefore limited in time and expired before the termination of the
strike 7 weeks later. While the majority Members agree that De-
Larme's right to strike does not, as indicated above, obligate the Re-
spondent to pay him for the period he refused to work because of the
strike, they are persuaded, and find, that DeLarme's exercise of this
right did not warrant a discontinuance of the Respondent's offer of
reinstatement. As the offer had terminated and was no longer open
to DeLarme when the strike terminated, they find, under the special
circumstances of this case, that he was entitled to a new offer of
reinstatement.
Board Members Murdock and Peterson believe, on the contrary, that
the Respondent was under no obligation to renew its original uncondi-
tional offer of reinstatement. They cannot accept as sound Board pol-
icy a requirement that an employer press a discharged employee with
successive unconditional offers of reinstatement in order to toll back
pay. DeLarme, having originally elected to accept the Respondent's
offer, appeared at the plant for that purpose. Confronted by the picket
line, however, he decided to join the strikers. At no time after the
strike did he request reinstatement. Absent such a request on his part,
the partial dissenters would find that he is entitled to back pay only
from the date of his discharge to the date of the Respondent's original
offer.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Beaver Meadow
Creamery, Inc., DuBois, Pennsylvania, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its em-
ployees, by discharging, laying off, or refusing to reinstate any of them
Stafford Operating Compnay, 96 NLRB 1217.
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of membership or activities on behalf of any labor organiza-
tion, or by discriminating in any other manner in regard to hire and
tenure of employment or any term or condition of employment.
(b) Interrogating employees concerning their union membership
and activities, threatening to discharge or lay off employees or-holding
out job advantages because of union membership and activities or the
lack of it, or in any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist labor organizations, to
bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all of such
activities except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Bert DeLarme immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority or other rights and privileges.
(b) Make whole Bert DeLarme for any loss of pay which he may
have suffered by reason of the discrimination against him by payment
to him of a sum of money equal to that which he normally would have
earned in wages from the date of his discharge to the date of his
receipt of the letter offering him reinstatement, and from the date of
the termination of the strike to the date of a valid offer of reinstate-
ment by the Respondent, less his net earnings during said periods .5
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records and reports, and all other
records necessary to analyze the amount of back pay due and his right
of reinstatement under the terms recommended herein.
(d) Post immediately at its plant at DuBois, Pennsylvania, copies
of the notice attached to the Intermediate Report and marked "Ap-
pendix." 6 Copies of said notice, to be furnished by the Regional
Director for the Sixth Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent immedi-
ately upon receipt thereof and maintained by it for sixty (60) con-
secutive days in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
5 The said loss of pay shall be computed on a quarterly calendar basis in accordance
with the formula adopted by the Board in F. W. Woolworth Co , 90 NLRB 289.
6 This notice shall be amended by substituting the words "A Decision and Order" for
the words "The Recommendations of a Trial Examiner" in the caption thereof. In the
event that this Order is enforced by a decree of a United States Court of Appeals, there
shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur-
suant to a Decree of the United States Court of Appeals , Enforcing an Order."
BEAVER MEADOW CREAMERY 1507
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for the Sixth Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Intermediate Report
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations
Act, 61 Stat. 136 (herein called the Act), was heard in Clearfield, Pennsylvania,
on June 19 and 20, 1952, pursuant to due notice to all parties. The complaint,
issued on May 9, 1952, by the General Counsel of the National Labor Relations
Board,' and based on charges duly filed and served, alleged in substance that
the Respondent had engaged in unfair labor practices proscrbed by Section 8 (a)
(1) and (3) of the Act by (a) discriminatorily discharging Bart DeLarme on
September 7, 1951, and thereafter refusing to reinstate him; and (b) since that
date by engaging in other specified acts of interference, restraint, and coercion.
In its answer, duly filed, the Respondent denied that it is subject to the Act
and further denied the commission of any unfair labor practices.
At the hearing the General Counsel and the Respondent were represented by
counsel. All parties were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce relevant evidence, to argue orally,
and to file briefs and proposed findings and conclusions. Oral argument was
waived. Subsequent to the close of the hearing, the General Counsel submitted
a brief.
Upon the entire record in the case and from my observation of the witnesses.
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Pennsylvania corporation with its principal office and place
of business in DuBois, Pennsylvania, is engaged in the processing, manufacture,
sale, and distribution of milk, butter, eggs, and related products. During the
12-month period prior to the hearing, the Respondent purchased raw products
and other materials valued at approximately $1,350,000, of which approximately
$378,000 worth was shipped to the Company's plant from points outside the
Commonwealth of Pennsylvania ; in the same year, the Respondent sold finished
products valued at approximately $1,350,000, of which approximately $54,000
worth was sold and shipped to out-of-State customers. Upon the foregoing facts,
I find that the Beaver Meadow Creamery, Inc., is engaged in commerce within
the meaning of the Act. Collins Baking Co. v. N. L. R. B., 193 F. 2d 483, 485
(C. A. 5) ; Kress Dairy, Inc., 98 NLRB 369; Stanislaus Implement and Hard-
ware Company, Limited, 91 NLRB 618-619.
II. THE LABOR ORGANIZATION INVOLVED
United Construction Workers, District 50, affiliated with United Mine Workers
of America, herein called the Union or Construction Workers, is a labor organi-
zation within the meaning of Section 2 (5) of the Act.2
I The General Counsel and his representative at the bearing are referred to herein as
the General Counsel, and the National Labor Relations Board as the Board
I The Union was not in compliance with Section 9, (f), (g), and (h) of the Act at the
time of the hearing ; nor is it in compliance at present.
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events
The Union initiated an organizational campaign at the Respondent's creamery
early in September 1951. The discharge of Bert DeLarme, an issue herein,
occurred on September 7. On the following day, a representative of the Con-
struction Workers called upon the Company to request recognition. In answer,
the Respondent declared that it would not grant this demand until the Union
was certified as the bargaining agent for its employees. On September 19, the
employees went on strike and established a picket line before the entrance to
the plant which, except for one brief interval, was maintained until about No-
vember 13, when the Union abandoned the strike.
B. The discharge of DeLarme
1. Introduction
Bert DeLarme was hired by the Respondent in December 1949. He started
working in the butter and cream section, later drove a truck, and in the sum-
mer of 1950, was transferred into the egg room where he and 1 or 2 other em-
ployees candled and graded eggs. Thereafter, however, he continued to spend
approximately 3 forenoons a week in the creamery where he printed butter.
Early in September, DeLarme discussed with William Bolam and Howard
Caylor, two fellow employees, the question of organizing their coworkers. On
the evening of September 6, DeLarme met Tony Ross, field representative for
the Union, at a hotel in DuBois. After a discussion with Ross as to the steps he
should follow in organizing the Beaver Meadow plant, DeLarme obtained a supply
of union application cards for distribution among the employees. During the
noon hour on the following day, DeLarme brought several friends' together in
his car, then parked in front of the creamery where he related the details of his
meeting with Ross. All in the group, including DeLarme, signed application
cards at this time. Those present also decided to hold an organizational meeting
that evening to which the other employees would be invited.' Later that day, in
asking some of his coworkers to attend the meeting, however, DeLarme told them
that its purpose was to plan a birthday party for William Brennan, the plant
superintendent. At the hearing, DeLarme explained that this was a ruse, adopted
because he feared that one of the rank-and-file employees, a nephew of the plant
president, might report to his uncle on any announcement for a union meeting.
At about 5 o'clock on the same afternoon, Plant Superintendent Brennan came
to DeLarme, handed him his pay, and told him he was being discharged because
there had been "too many complaints on eggs."' Brennan then contacted the
other employees individually to tell them that there would be no party for him
that night.'
The following day Ross called on J. J. Kirk, president of the Respondent, to
ask for recognition of the Union. The initial request was declined. It was
raised again at a number of subsequent meetings held to discuss a consent elec-
tion but no agreement was reached.
During the period subsequent to DeLarme's dismissal, Kirk questioned two of
his employees about their part in the union campaign. On Saturday, September 8,
Kirk called in Shugarts to ask whether he was interested in joining the local
i Caylor, Bolam, and Homer D Syphrit.
4 The creamery had approximately 20 employees at the time.
P The quotation is from DeLarme's testimony.
This finding is based on the credited testimony of Brennan, Syphrit, and Caylor.
BEAVER MEADOW CREAMERY 1509
country club. When Shugarts answered in the affirmative, Kirk gave him an
application card with the suggestion that he sign it and return the card the follow-
ing Monday. After Shugarts came to work on September 10 he told the plant
president that he had decided that joining the country club would be too expensive,
whereupon Kirk asked whether anyone had approached him over the weekend
with "a card to join a union." Shugarts acknowledged that this had happened.
Kirk then asked whether he had joined and when the employee conceded that he
had, Kirk pressed him for details of the occasion. The following day the plant
president called Syphrit into his office to ask whether he had joined the Union.
Syphrit denied that he had done so although, in fact, he had signed an applica-
tion for membership in the Construction Workers some days before. In con-
cluding the conversation, Kirk told Syphrit that as long as he "stayed away from
the union" he and "a few others would have a job" as long as they wanted,
whereas the other employees would "just come and go."'
2. The contentions of the parties
The General Counsel argues that DeLarme was dismissed after Kirk discov-
ered that he was endeavoring to organize the plant and for the purpose of dis-
couraging the attempt to unionize the Beaver Meadow employees. This is denied
by the Respondent. The position of the latter embraces several grounds: (a)
That DeLarme was a supervisor ; (b) that he was discharged for neglect of his
duties ; and (c) that in any event he rendered himself ineligible for reinstatement
by rejecting an offer of reemployment in September, and by engaging in miscon-
duct during the strike.
a. The question of DeLarme's status
The egg department was a very small unit at the plant. In addition to DeLarme
it seldom had more than one other employee, customarily a girl. Occasionally a
second girl was added to help candle eggs (luring a rush period. After being
assigned to this work, DeLarme candled eggs, filled crates, checked out shipments
for the driver-salesmen, helped load and unload trucks, and kept a record of the
stock on hand. At the same time, however, DeLarme was available for other
assignments at the plant and approximately 3 forenoons a week he printed butter
in the creamery. At the time of his discharge he was earning $1.04 an hour.
The Respondent's argument that DeLarme was a supervisor finds support in
the testimony of J. J. Kirk. According to the plant president, in July 1950,
DeLarme was promoted to the position of foreman of the egg department, where
the employees received a 5-dollar increase to a guaranteed weekly wage, and
thereafter was in complete charge of the department with the power to hire and
fire. Kirk testified, however, that DeLarme's supervisory status did not extend
beyond the egg department and that when DeLarme worked in other depart-
ments, as he frequently did, he had no supervisorial duties.
DeLarme denied that Kirk or anyone else had ever informed him that he was
a supervisor, or that he had authority to discipline, discharge, or hire anyone.
Several other employees at the creamery testified that they had never heard or
understood that DeLarme had any supervisory functions. Syphrit, who held
DeLarme's job for a short while subsequent to the latter's dismissal, stated that
he was never told that, upon assuming DeLarme's duties, he would be a foreman.
Kirk's testimony was largely uncorroborated and, in important particulars, it
was lacking in detail. No personnel records were offered to support his state-
7 The findings and quotations in this paragraph are based on the credited, undenied
testimony of Homer D. Syphrit and James H Shugarts.
257965-54-vol. 103-96
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment that DeLarme was promoted to a supervisory status on going to the egg
department. Moreover, from Kirk's own testimony it was apparent that the fact
DeLarme was paid a guaranteed weekly wage had no significance, for Kirk later
stated that all the regular rank-and-file employees in the creamery were paid in
the same manner. Only the plant superintendent was on a salary; DeLarme and
the other employees punched a time clock. In addition, DeLarme's wage rate
was lower than that of several other nonsupervisorial employees in the creamery.
Although Kirk testified that he "believed" that DeLarme had once discharged an
employee working in the egg department, he could not recall either her name or
any other detail connected with the alleged dismissal. Kirk's testimony received
little corroboration from William Brennan, plant superintendent throughout the
period when DeLarme was in the egg department. According to Brennan,
DeLarme "was more or less directing the work" in the egg department in that he
instructed new employees on how to candle and grade the eggs but that, on the
other hand, he was not responsible for inspecting their work. Brennan credibly
testified that he never told DeLarme that the latter had authority to discipline,
discharge, or hire any employees and that he had never heard DeLarme referred
to as a foreman or a supervisor.
Even if, as Kirk testified, DeLarme was known as a "department head," that
in itself is far from determinative of his status under the Act. Moreover, I
feel that it is most significant that the testimony of the plant president in this
connection was afforded little support by that of the plant superintendent who
was DeLarme's immediate superior during the period in question. An exam-
ination of the duties and responsibilities which DeLarme exercised makes it
apparent to me that he had no authority to discipline, discharge, or hire any
employee, or to effectively recommend such action, and that such direction of
other employees as he exercised was limited to the routine giving of instructions!
For this reason it is my conclusion that, at the most, DeLarme occupied a posi-
tion in the egg department similar to that of a "lead man" and that he did not
have the prerequisites of a supervisor as that term is used in the Act. Sears
Roebuck & Company, 91 NLRB 1411, 1413-1414; Southern Industries Co., 92
NLRB 998, 1000-1001; Muskogee Dairy Products Co., 85 NLRB 520, 521.
b. Analysis of testimony urith respect to the discharge
In answer to the General Counsel's allegation that DeLarme was discrimina-
torily dismissed, the Respondent has averred that he was discharged solely for
neglect of duty.
The Respondent's position that DeLarme was dropped for carelessness and
neglect of duty was supported by the testimony of the plant president. Kirk
testified that in the spring of 1951 customers started reporting shortages in the
egg orders which they received, that DeLarme seemed to have difficulty keeping
an accurate inventory of his stocks on hand, that in July several of the driver-
salesmen, including one Walter Newell, complained about shortages and spoiled
eggs in the crates which DeLarme loaded on Newell's truck, and that about 3
weeks before DeLarme's dismissal he warned him that if the shortages con-
tinued DeLarme would be relieved. According to Kirk, on the morning of Sep-
tember 7, when a customer called to complain about receiving poor quality eggs
as well as about cases that were short the full number purchased, he concluded
8In a somewhat similar situation where the Board found that the employee in question
was not a supervisor, it described the instructions he gave as "merely those which any
more experienced employee would naturally give those less experienced." Manson News
Agency, Inc., 93. NLRB 1123, 1125-1126.
BEAVER MEADOW CREAMERY 1511
that DeLarme should he discharged, had his check made out, and told Brennan
to dismiss him.
To corroborate Kirk's testimony the Respondent offered in evidence 4 letters
which it had received from customers, covering requests for credits on shortages
or substandard eggs which driver-salesmen had delivered. In addition, a memo-
randum was introduced which referred, to an occasion in April when the egg
department credited 1 patron with 100 dozen more eggs than the patron had
delivered and, in consequence, the Respondent lost $35 through an overpayment.
In further support of its contention that DeLarme had been derelict in his
recordkeeping the Respondent introduced a summary of the net shortages in
the egg department for a 6-month period prior to September 7, which the plant
bookkeeper had prepared some months after DeLarme' s dismissal.'
Kirk's testimony about DeLarme was not corroborated by that of his plant
superintendent at the time. According to Brennan, during the period when
DeLarme was in the egg department there had been a number of complaints
about egg candling and crating but only a relatively small number of these were
due to any of DeLarme's work. Kirk himself conceded that few of the com-
plaints about inadequate candling and shortages were traceable directly to
DeLarme, but that he felt all complaints about the operations of the egg room
should be attributed to DeLarme since the latter was in charge." In connection
with the incident in July regarding Newell, DeLarme testified that the eggs which
Newell returned because they had spoiled were eggs which Kirk had specifically
told him not to candle on the ground that spoilage would never be a problem with
that particular type. DeLarme's testimony in this regard was corroborated by
Newell. It was not contradicted by Kirk. Although Kirk testified that he had
received rather numerous complaints about DeLarme from the driver-salesmen,
none of the latter was placed on the witness stand to corroborate this assertion.
On the other hand, both Newell and another driver-salesman, Shugarts, testified
that they had never filed any complaints with Kirk.
Kirk's testimony to the effect that DeL arme had become an increasingly serious
problem because of negligence displayed in keeping an inventory for the egg
department was not borne out by the documentary evidence adduced. The record
of egg shortages and overages which was offered by the Respondent showed that
at the time of his discharge in September the monthly total of the shortages
was decreasing rather than increasing. Thus although in March a net shortage
of 1201/2 (dozen) was reported, in April 131%, and in May 151%, in June the
number was only 29, in July 92%, and in August it was down to 36%." Most of
the documentary evidence which the Respondent offered in support of its attack
on the employee's efficiency antedated his discharge by several months. One
letter covered claims totaling $6.49 which arose in January and February,
another, dated July 13, requested credit for $1.65, a third, dated October 2, was
not received by the Respondent until over 3 weeks after DeLarme had been
discharged. The memorandum concerned with overpayment of a patron was
dated April 6. Only 1 letter bore a September date ; this one noted a customer's
request for a rebate of $1.20. As to none of the instances to which the letters
or memorandum referred was evidence offered to establish DeLarme's responsi-
9 The Respondent did not, through any of its testimony regarding shortages, seek to
impute a dishonest motive to DeLarme. Its counsel frankly stated, "We are not accusing
Mr. DeLarme of taking these eggs."
10 The egg candlers were required to label their work by initialing each crate. DeLarme
testified that there had been some complaints about cases he had prepared but that most
of the complaints had been directed to the girl who worked with him in the candling room.
This testimony was not contradicted.
11 The Respondent ' s egg sales ranged from 300 to 1,600 dozen per day.
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bility for the circumstances out of which the specific complaint arose. More-
over, the Respondent made no effort to prove that any of these complaints was
ever brought to DeLarme' s attention . Kirk's testimony on the matter of
whether he had told DeLarme that his work was unsatisfactory was greatly
lacking in detail. On direct examination Kirk stated that he had warned the
employee in August, about 3 weeks before his actual dismissal. On cross-
examination, however, he could give no specific information about this occasion
or any other on which he purportedly reprimanded DeLarme. Even less con-
vincing was his testimony with respect to the incident which supposedly led to
the employee's dismissal on September 7. Although on direct examination he
testified that this decision was made after getting a complaint about DeLarme
from a customer in Rockport , Pennsylvania , on cross-examination he could not
recall the name of the customer or any other details with regard to the complaint.
c. Concluding Endings
Kirk denied that he had any knowledge of DeLarme 's union activities at the
time he ordered his discharge. From the testimony outlined above however, it
is apparent that prior to September 7, DeLarme had been no serious problem for
the Respondent . Moreover , none of the reasons advanced by Kirk satisfactorily
explains why on that particular date the Respondent should conclude that
DeLarme's dismissal was imperative and so abruptly put it Into effect. In the
light of these considerations , as well as Kirk 's subsequent interrogation of em-
ployees regarding their union affiliation and his statement to Syphrit that as
long as the latter stayed away from the Union he "would have a job ," it is infer-
able that Kirk had learned of DeLarme 's solicitation on behalf of the Construc-
tion Workers and that the real reason for his precipitate dismissal was, in fact,
a suddenly acquired knowledge of DeLarme 's Interest In organizing the creamery
and a desire on the part of the plant president to eliminate the one who appeared
to be the instigator of the movement.
Any doubts in this connection , however, were removed by Brennan's testimony
on the issue. According to the latter, about 4 o'clock on the afternoon of Sep-
tember 7 , Kirk asked whether he would like to have a union at the plant. When
Brennan answered that it was a matter of indifference to him , Kirk stated that
"If you don 't know it , there is a union afoot here, . . . action to form a union,"
that DeLarme was the "instigator ," and that Brennan would have to fire him
"under the pretense that he had too many complaints on eggs." According to
Brennan , Kirk also told him that an employee meeting was planned for that
evening , that it had been disguised as a party for Brennan , and that he (Kirk)
wanted the latter to get in touch with all the employees to tell them there would
be no party. Brennan testified that he immediately carried out these instructions
by notifying DeLarme of his dismissal and by contacting each employee to state
that he did ' not care to have any party sponsored for his benefit . Brennan seemed
to be a completely honest and forthright witness. At the time of the hearing
he was no longer in the Respondent 's employ , having left in April 1951 , but the
record contains no evidence of any kind that would indicate he departed because
of difficulties or friction with Kirk which would serve to impugn his credibility
here . Other than to deny that DeLarme was dismissed for union activity, Kirk
did not controvert Brennan 's testimony.
During the course of his employment there were times, no doubt, when the
Respondent was not completely satisfied with DeLarme 's performance of his
duties. The only issue before the Examiner , however, is whether the motivation
for his discharge was the employee's union activities , as alleged by the General
Counsel, or Kirk 's dissatisfaction with his work, as averred by the Respondent.
BEAVER MEADOW CREAMERY 1513
,On the basis of the facts found in the foregoing paragraphs it is my conclusion,
and I find, that DeLarme was discharged because of his organizational efforts
and to discourage the fledgling union movement.
.C. DeLarme's alleged ineligibility for reinstatement ; conclusions with respect
thereto
In its answer the Respondent alleged that DeLarme had lost any reinstatement
rights he may have had by his conduct during the strike, in that (1) "DeLarme
set out on a campaign of harassing and embarrassing the Respondent's presi-
dent, [and] had the President of the Respondent Company arrested on a false
charge concerning the use and operation of trucks . . ." and (2) "DeLarme and
others [denied] officers and employees of . . . Respondent access to the plant,"
as a result of which it was "necessary to call the law enforcement agency in
connection therewith."
It appears that during the strike DeLarme and several of the striking employ-
ees learned that, despite the union picket line, some cream was being hauled
in what they assumed to be company trucks. In a conversation DeLarme had
with Martin Beam, driver of one of the trucks, however, Beam claimed that he
had bought the truck. DeLarme testified that when he discovered that, despite
the truckdriver's asserted ownership, the Respondent's license plates were still
on the vehicle, he discussed the matter with the Pennsylvania State Police and
then swore out a warrant for Kirk's arrest. According to DeLarme, at a subse-
quent hearing before a justice of the peace the complaint he had made was dis-
missed solely because he had filed it against "J. J. Kirk" instead of against
"Beaver Meadow Creamery by J. J. Kirk." " Insofar as DeLarme's testimony
is concerned the record in connection with this matter is not entirely complete.
His testimony, however, was uncontroverted and the Respondent made no effort
to avail itself of the opportunity to add any further details. In view of such
facts as the record now reflects, all of which have been set forth above, I can
see no ground for the assertion that by his part in this matter DeLarme lost
any rights to reinstatement"
D. The Respondent 's offer to reemploy DeLarme ; conclusions with respect
thereto
On September 23, Kirk delivered a letter to DeLarme wherein the Respondent
referred to the charge which the latter had filed and stated :
We deny the charge and intend to contest the matter, however, in order
that you will not be prejudiced in any manner pending the outcome of decision
in said case you are hereby notified and requested to return to work for the
company. If you fail, neglect or refuse to return to work promptly you
will be considered to have voluntarily terminated your employment.
Your return to work for us will be without prejudice to either of our rights
in respect to the subject.
The strike began on September 19. On September 22, the picket line was with-
drawn and the parties met to discuss a possible agreement on an election. No
accord was reached, however. DeLarme testified that he went to the plant on
the morning of September 24, prepared to report for work but that he did not
" In fact, the driver had had the title transferred. However , the Company 's license
plates were still on the truck at the time DeLarme swore out the warrant.
"The record , moreover, contains no evidence whatsoever that supports Respondent's
allegation , set forth in the answer , that DeLarme engaged in violence or misconduct while
picketing the plant.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enter the building because picketing had been resumed. No subsequent offer of
reemployment was ever made to him.
The Respondent contends that its offer fulfilled any obligation it may have
had to reemploy DeLarme and, further, that any such obligation ended when
the employee failed to signify his acceptance promptly. The General Counsel
argues that the Company's offer was insufficient to satisfy the requirements of
the Act because it was conditional on its face and that, in any event, when
DeLarme found pickets at the entrance on reporting to the plant, he was under
no duty to cross the picket line in order to comply with its terms.
When DeLarme was confronted with the necessity of ignoring the pickets to,
enter the plant he, of course, could elect to join the strikers, despite the admoni-
tion in the letter of September 22 that he return promptly or be terminated.
Under these circumstances, the Respondent cannot now urge that by his failure
to report for work on September 24, DeLarme rejected its offer. In any case,
here, the Respondent's offer, by its terms, was plainly conditioned upon the out-
come of the unfair labor proceeding. The Board has long held that to be valid
an offer of reinstatement must be an unconditional assurance that the individual
will be reemployed in his former or substantially equivalent position. N. L. R. B.
v. Electric City Dyeing Co., 178 F. 2d 980, 983 (C. A. 3) ; N. L. R. B. v. Van Deusen,
138 F. 2d 893, 895 (C. A. 2) ; Pacific Powder Co, 84 NLRB 280, 281; Continental
Oil Co., 12 NLRB 789, 806. In the light of these considerations it is my conclusion
that the Respondent was relieved of none of its obligations under the Act by its
letter to DeLarme, or by the course of conduct which DeLarme subsequently-
followed.
E. Other alleged acts of interference, restraint , and coercion ; conclusions with
respect thereto
Kirk's interrogation of employees Sbugarts and Syphrit, discussed above, is of
a type proscribed by Section 8 (a) (1) of the Act. I so find. Further, as noted
above, when the plant president learned that the employees had planned an
organizational meeting in the guise of a party for Superintendent Brennan, he
instructed Brennan to tell each employee immediately that he was not "inter-
ested in having a party." Under the circumstances present here, this, too, must
be considered as a discriminatory attempt to thwart an employee move to meet
for organizational purposes which violates the Act.
The General Counsel also alleged that the Respondent engaged in further acts
of interference during the strike by threatening the strikers with termination
unless they returned to work. The employees struck on September 19. The
following day the Respondent distributed a letter to its employees in which it
concluded
The plant is ready to operate if and when you choose to return to work.
If you do not return to work on or before September 24th, 1951, we will
consider you to have terminated your employment with this Company.
On the following day the Respondent addressed another letter to its employees
In which it stated that the Company would recognize the Union whenever the
latter was certified by the Pennsylvania State Labor Relations Board but went
on to say that this offer was extended
on condition that you return to work on or before September 24, 1951, and
if the plant is not opened by that time, there will be few, if any jobs there,
so, if the subject matter is not determined promptly, it makes little difference.
The language of these letters plainly carried a threat to terminate the strikers
without regard to whether they had been replaced and because of the fact that
BEAVER MEADOW CREAMERY 1515
they were then engaged in concerted activity. In consequence , the letters, as
a "tactical step designed to coerce the employees into resuming work" (Rockwood
Stove Works, 63 NLRB 1296, 1297) were a further violation of Section 8 (a) (1)
of the Act. Collins Baking Co. v. N. L. R. B, 193 F. 2d 483, 486 (C. A. 5).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the 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.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I shall recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated with respect to the
hire and tenure of employment of Bert DeLarme, it will be recommended that
the Respondent offer him immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or
other rights and privileges (The Chase National Bank of the City of New York,
San Juan , Puerto Rico, Branch, 65 NLRB 827) and make him whole for any
loss of pay suffered as a result of the discrimination against him by payment to
him of a sum of money equal to that which he normally would have earned
in wages from the date of his discharge to the date of a valid offer of rein-
statement by the Respondent, less his net earnings during said period. Crossett
Lumber Co., 8 NLRB 440. The said loss of pay shall be computed on a quarterly
calendar basis in accordance with the formula adopted by the Board in P. W.
Woolworth Co., 90 NLRB 289.
Since a discriminatory discharge "goes to the very heart of the Act" (N. L. B. B.
v. Entwistle Mfg. Co., 120 F. 2d 536 (C. A. 4) ), I will recommend that the Re-
spondent be ordered to cease and desist from in any manner infringing upon
the rights of employees as guaranteed by Section 7 of the Act. See May De-
partment Stores v. N. L. R. B., 326 U. S. 376, 386-392.
Upon the basis of the foregoing findings of fact and upon the entire record in
the ease , the undersigned makes the following :
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
3. By discriminating in regard to the hire and tenure of employment of Bert
DeLarme, thereby discouraging membership in a labor organization, the Re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
4. By such discrimination and by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National
Labor Relations Board, and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership by our employees in any labor organi-
zation, by discriminating in regard to hire or tenure of employment or any
term or condition of employment.
WE WILL NOT interrogate employees concerning their union membership
and activities.
WE WILL NOT threaten to discharge employees because of their union
membership and activities or hold out job advantages should they refrain
from such membership and activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or' to refrain from any or all
such activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Bert DeLarme immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any seni-
ority or other rights and privileges enjoyed and make him whole for any
loss of pay suffered as a result of the discrimination against him.
BEAVER MEADOW CREAMERY, INC.,
Employer.
Dated -------------------- By -------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
SPALDING AVERY LUMBER COMPANY, BURKE LUMBER & COAL COMPANY,
EDWARDS & BROWNE COAL COMPANY, FULLERTON LUMBER Co., E. S.
GAYNOR LUMBER COMPANY, SKIDMORE SAWMILLS , FORD LUMBER &
COAL CO., AND OMAHA HARDWOOD LUMBER Co. and GENERAL DRIVERS,
WAREHOUSEMEN & HELPERS LOCAL UNION No. 383, A. F. OF L. Case
No. 18-CA-429. April 3,1953
Decision and Order
STATEMENT OF THE CASE
Upon a charge filed on August 8, 1952, by General Drivers, Ware-
housemen and Helpers Local Union No. 383, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A. F. of L., herein called the Union, the General
103 NLRB No. 128.