Ben Hur Produce

National Labor Relations Board - Board Decisions

May 31, 1974

211 N.L.R.B. 70 (N.L.R.B. 1974)

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ben Hur Produce and General Teamsters, Sales
Drivers, Food Processors , Warehousemen & Help-
ers Local 871, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America . Case 31-CA-4070
May 31, 1974
DECISION AND ORDER
BY CHAIRMAN ' MILLER AND MEMBERS
KENNEDY AND PENELLO
On March 27, 1974, Administrative Law Judge
Maurice M. Miller issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Ben Hur Produce,
Upland, California, its agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
I The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge: Upon
a charge filed October 25, 1973, and duly served, the
General Counsel of the National Labor Relations Board
caused a complaint and notice of hearing , dated November
28, to be issued and served on Ben Hur Produce,
designated as Respondent within this Decision. Therein,
Respondent was charged with the commission of unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended. 61
Stat. 136, 73 Stat. 519. Respondent's answer, duly filed,
failed to plead with respect to certain factual matters set
forth within General Counsel's complaint; thereby, the
correctness of these allegations was, effectively, conceded.
Respondent did, however, deny the commission of unfair
labor practices.
Pursuant to notice, a hearing with respect to the issues
was held on January 8, 1974, at San Bernardino, Califor-
nia, before me. The General Counsel and Respondent were
represented by counsel. Each party was afforded a full
opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence with respect to
pertinent matters. When their respective testimonial
presentations were concluded, counsel waived their right to
file briefs.
FINDINGS OF FACT
Upon the entire testimonial record, and my observation
of the witnesses, I make the following findings of fact:
1. JURISDICTION
Respondent has raised no question, herein, with respect
to General Counsel's jurisdictional claim. Upon the
complaint's relevant factual declarations-more particular-
ly, those set forth in detail within the second paragraph
thereof-which have not been traversed within Respon-
dent's answer, and on which I rely, I have concluded that
Respondent herein was, throughout the period with which
this case is concerned, and remains, an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
and business activities which affect commerce within the
meaning of Section 2(6) and (7) of the statute. Further,
with due regard for presently applicable jurisdictional
standards, I find assertion of the Board's jurisdiction in
this case warranted and necessary to effectuate statutory
objectives.
If. COMPLAINANT UNION
General Teamsters, Sales Drivers, Food Processors,
Warehousemen & Helpers Local 871, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act, which admits certain
employees of Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Issues
This case presents a limited number of substantive
questions. Primarily, General Counsel seeks a determina-
tion that Everett Schmidt and Ronald Gold, two truckdri-
vers in Respondent's hire, were terminated because Arthur
Rudy, Respondent's proprietor, had learned that they
were, presumptively, seeking union representation. Res-
pondent contends, contrariwise, that both men were
terminated for valid reasons-not subject to statutory
proscription-related solely to their job performance.
General Counsel counters, reflexively, with a contention
that Respondent's several proclaimed reasons for discharg-
ing Schmidt and Gold should be considered pretextual.
211 NLRB No. 13
BEN HUR PRODUCE 71
B. Facts
1. Background
Respondent , a California proprietorship , with its princi-
pal office and warehouse located in Upland , within that
State , conducts a wholesale produce business . Currently,
Arthur Rudy and Melba Rudy, his wife , concededly "own"
the firm ; there are no other proprietors.
(The record warrants a determination , which I make,-
that Arthur Rudy and his wife became Respondent's
owners something more than 19 months ago , when the
firm , then known as Roadhous Produce, went bankrupt.
Rudy had worked for Bud Roadhous , who was then the
firm 's proprietor . Following the latter's bankruptcy, their
positions were reversed ; Roadhous became Respondent's -
office manager . He held that position , so the record shows,
throughout the period with which this case is concerned.)
During September and October 1973, when the situation
with which this case is concerned developed , Respondent
employed six truckdrivers for produce deliveries. Two of
these-designated merely as Luke and Ramie within the
present record-were considered "Jack-In-The-Box" driv-
ers; presumably , their deliveries were , primarily, made to
various so-called fast-food restaurants , within the vicinity,
doing business under that name. Four drivers-with
Schmidt and Gold compassed within their number-deliv-
ered produce to schools , twice weekly ; concurrently, they
provided daily delivery service for a diversified group of
local commercial establishments wherein food was sold.
Ronald Gold , known previously to Arthur Rudy since
they had both worked for Roadhous Produce before that
firm 's bankruptcy , had been hired by Respondent some-
time during November 1972; before his discharge, pur-
suant to certain developments which will be detailed
further herein , Gold was Respondent 's second most senior
driver , with respect to his length of service . Everett
Schmidt had been hired during April 1973; when dis-
charged , he had the third longest seniority record of
Respondent's four general delivery drivers. During Octo-
ber 1973 , both men were being paid $ 175 weekly salaries.
The record is silent regarding Respondent's compensation
arrangements with its four other drivers or Robert Quillan,
the firm 's warehouse manager.
2. Complainant Union 's organizational campaign
Sometime during late September 1973, Robert Musser,
Complainant Union 's business representative , telephoned
Respondent ; he spoke with Respondent's office manager.
Musser and Roadhous had, so Musser testified , shared
"good rapport" previously , before the latter 's firm, Road-
hous Produce, failed . The business representative believed
that most of Roadhous Produce's former drivers, who had
been members of Complainant Union before the firm's
failure , were currently in Respondent 's hire. He asked
whether Respondent 's management would "like to get
together and work out a contract" which would save
pension credits for Respondent 's drivers, or whether he
should pursue a normal organizing routine. Respondent's
office manager suggested the latter course. (Roadhous,
who may no longer be Respondent 's office manager, did
not testify . While a witness , Arthur Rudy declared,
however, that Roadhous had reported his conversation
with Complainant Union's business representative in
somewhat different terms. Rudy was told , so he presently
claims, that Musser wanted to confer with him and would
"call back" for the purpose of setting a meeting date. Mrs.
Ethel Galbraith , Respondent's former bookkeeper, sum-
moned as General Counsel 's witness , recalled a verbal
report by Roadhous regarding his conversation with
Complainant Umon 's business representative , consistent
with Musser's testimony herein . She recalled further,
however , that Roadhous had reported telling Musser he
would find it "worthwhile" to speak with Respondent's
proprietor, and that Rudy would get in touch with him.
According to Galbraith , Rudy had declared he would talk
to Musser , and that , when Complainant Union 's business
representative could show signed contracts with Respon-
dent's two competitive wholesale produce distributors, he
would "consider" the Union's proposals . The divergent
testimonial recitals proffered , with respect to what Road-
hous told Rudy regarding the substance of his conversation
with Complainant Union 's business representative, need
not be reviewed or reconciled . A determination now, with
respect to whether Rudy was or was not told Musser would
make a second telephone call to set a meeting date, would
serve no presently useful purpose . Concededly , Musser and
Rudy had no subsequent contact.)
On October 3, consistently with Roadhous ' suggestion,
Complainant Union 's business representative sent letters,
with designation cards enclosed, to four of Respondent's
workers-Schmidt, Gold, Frank Chaffee , and Robert
Quillan-who had previously held union membership and
currently held withdrawal cards. Two of those solicited,
Schmidt and Gold , subsequently returned their designation
cards, signed.
Twice , however , during a period of several days
thereafter , Gold, Schmidt , and Chaffee had brief conversa-
tions while at work with respect to whether they should
visit Complainant Union 's hall and discuss Respondent's
possible unionization with Complainant Union's business
representative . A consensus was reached ; pursuant thereto,
two of Respondent 's drivers did, subsequently, confer with
Business Representative Musser at Complainant Union's
hall. (The record herein , which reflects a variety of
divergent recollections in this connection, permits no
definitive conclusion with respect to which drivers visited
the hall. For present purposes , however , no determination
with respect thereto seems required .) According to Musser,
nothing more than a general discussion developed;
Complainant Union's program with respect to Respon-
dent 's possible unionization , thereafter , remained purely
conjectural.
3. Respondent's reaction
At this point , we reach the more significant disputed
matters with which this Decision will hereinafter deal.
General Counsel contends , substantially, that Respon-
dent 's proprietor was-throughout the period with which
this case is concerned , beginning sometime before Com-
plainant Union's October 3 card solicitation previously
noted-definitely "opposed" with respect to his firm's
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possible unionization . He argues , further, that Gold and
Schmidt, the two drivers who had signed and returned
Complainant Union's designation cards , were discharged
when Respondent's proprietor learned of their favorable
disposition with respect to Complainant Union's possible
organizational campaign . Respondent contends , contrari-
wise , that Rudy's comments , whenever the possible
desirability of unionization became a subject of discussion,
were substantially limited to regretful declarations that,
since his newly purchased business could not yet be
considered financially secure , he could not "afford" higher
fringe benefit program costs which unionization of the
firm 's drivers might generate . Further, Respondent con-
tends that Gold and Schmidt were both terminated for
poor work performance and generally questionable behavi-
our. These contradictory contentions will be separately
considered.
a. General Counsel's case
(1) Rudy's purported declarations of distaste
regarding the prospect of Respondent's
unionization
General Counsel's testimonial presentation herein sug-
gest a contention that Arthur Rudy had manifested his
distaste , when confronted with the possibility that Respon-
dent's drivers might seek union representation, sometime
before Business Representative Musser's telephone can,
previously noted. Mrs. Galbraith, for example, testified
that about 2 months before she resigned, during the early
part of September presumably, Respondent's warehouse
manager , Robert Quillan, had, during a discussion with
Respondent's proprietor, declared his "disappointment"
and "disgust" with Respondent's limited health insurance
policy coverage. According to Mrs. Galbraith's recollec-
tion:
When he left the office I told Arthur [Rudy] do you
know that Bob was a union man and is use [d] to the
coverage that the union offered and that is what he
really wants [,] and he said I will close the doors before
I will join the union.
On cross-examination , Mrs. Galbraith reiterated her
testimony. She specifically denied that Rudy had merely
said he would "have to close" should he be required to
"join" the Complainant Union herein. During this same
period "several weeks" before Business Representative
Musser's October 3 designation card solicitations , Everett
Schmidt had likewise proffered a comment , so he testified,
which suggested his dissatisfaction regarding the coverage
which Respondent's current health insurance program
provided. Schmidt had told Respondent's proprietor, so he
recalled, that "it would be nice if we had a union here so
we would have a good insurance." The driver's testimony,
however, reflects no Rudy reply; Schmidt declared,
categorically, that Respondent's proprietor had said
nothing about checking the possibility of procuring better
insurance coverage for Respondent 's workers.
Ronald Gold, while testifying with regard to his October
17 discharge, recalled a conversation with Rudy which had
taken place on Respondent's loading dock , some "few
days" before his termination. His testimony, with respect
thereto , reads as follows:
I was taking boxes in a hand truck off my truck and he
came out and he says I want to talk to you a minute
and I said okay. He said I want to know what your
feelings is tdwards the union . I said I am all for it. Mr.
Rudy then replied that you realize it is going to cost the
company approximately $90 a month for each employ-
ee. . . . I replied that no I didn't really feel that we
needed all the benefits involved in the approximately
$90. Mr. Rudy then replied that the company just
couldn't afford that ... that it would be a tragedy to
the company at the time . I once again replied that I
really didn't feel we were going to ask for the moon
... we just needed a little coverage . . . . He said at
the time he had another insurance company cover-
age.... to give us some good medical insurance,
health insurance ... and that is about really the
conversation.
Consistent with Gold's testimony, the record warrants a
determination, which I make, that this reported conversa-
tional exchange reflects his sole discussion , with any
company supervisor, during which the possible conse-
quences of Respondent's unionization were considered.
(2) Ronald Gold's discharge
During the early afternoon of Wednesday, October 17,
Rudy spoke with Gold in Respondent's dock area; no
other persons were present. The driver's testimony, with
regard to their conversation, reads as follows:
He says I want to speak to you a moment and I said
okay. Then we went into the dock foreman's office-it
was private. And Mr. Rudy just said that I am going to
have to let you go. I asked him why. He said, well, he
says you are causing too much confusion on the dock
and the company simply can't afford you at this time;
we are in financial difficulty. I asked Mr. Rudy what
did he mean by causing too much confusion on the
dock. He replied that I was late for work and I refused
to take out deliveries [,] which at the time I admitted
that I was late for work a few times . I can recall one
time that I refused to take out an order. Then we
simply ended the conversation and went into the main
office and he handed me my check. He said if the
company got on their feet in a couple weeks he would
like to hire me back. That was about it and I left.
When subsequently queried, during cross-examination,
with regard to Rudy's charge of persistent tardiness, Gold
conceded that, during the 3- or 4-month period which had
directly preceded his termination, he had occasionally
reported late for work; however, he denied, categorically,
the suggestion proffered by Respondent 's counsel that
persistent , repetitive tardiness had characterized his work
performance. Further, he denied receiving any prior
reprimands or threats of discharge because of his purport-
edly persistent tardiness. With regard to Rudy's contention
that he had frequently refused to make late deliveries,
BEN HUR PRODUCE 73
following the conclusion of his regular delivery runs, Gold
conceded two such refusals within the 3-month period
which had directly preceded his discharge . While a witness
herein , he contended , however, that these refusals could
not legitimately be considered serious derelictions of duty,
since ( 1) he had , already, completed a long, full day's
work ; (2) he had , when requested to make these deliveries,
pleaded fatigue , plus his desire to spend some time with his
family; and (3) some of Respondent's other drivers, who
had previously returned from their regular runs or were'
due back shortly, could have handled the particular late
delivery more conveniently.
Respondent 's specific contentions that , inter aka, Gold's
persistent tardiness , plus his personal decisions to withhold
cooperation when requested to make late deliveries,
contributed to Respondent 's decision regarding his dis-
charge will be considered further within this Decision.
General Counsel 's reflexive contention , previously noted,
that Respondent's congery of proffered justifications for
Gold's dismissal should be considered pretextual will,
likewise , be reviewed hereinafter.
(3) Everett Schmidt's discharge
Everett Schmidt , like Ronald Gold, was terminated
during the afternoon of October 17, following the conclu-
sion of his day's work. He received his notice of
termination and final check , however , from Pete Smith,
Respondent 's produce buyer. Schmidt's testimony with
regard to their conversation, which stands in the record
without contradiction, reads as follows:
He [Smith] came up to my truck as I was unloading my
empties and he handed me an envelope and he said
we've got to let you go. I said why, did I do something
wrong? He said, no, just that the company is in bad
with the market-the L.A. market. He said that they
were running short on money and I better get down
and get this check cashed real quick because he knew
there was money in [there] right now to pay the payroll
and they were going to keep Frank Chaffee-I asked
first if he had let anybody else go and he said, yes, they
let Ron Gold go earlier. He said they were going to
keep Frank Chaffee on because he was senior man. He
said it would only be a short time. He didn't know how
long they would keep going bad.
Despite Respondent's purportedly straitened financial
circumstances, so Schmidt testified, the firm had hired a
new delivery driver earlier that very day. The present
record does indeed reflect such a new driver's hire;
Respondent's proprietor testified, however, that he had
been hired the day before Schmidt's termination.
The new driver, Ron Hernandez, had, so Rudy and
Quillan claimed, been "introduced" when he reported,
around 5 o'clock; Schmidt had been requested to provide
Hernandez with a warehouse tour and , likewise, to take
him along when he made his regular delivery run. The
driver testified categorically that he had complied with
these directives. Respondent contends contrariwise that
Schmidt had not taken Hernandez with him, when he
made his first morning delivery run, but that he (Schmidt)
had left Hernandez standing on the dock. Further,
Respondent contends that Hernandez had been distressed
by Schmidt's presumptive neglect; he had considered
Schmidt's conduct a racial slight ; he had complained to
Respondent's proprietor ; and his complaint had, partially
at least , contributed to Rudy's determination that Schmidt
should be discharged . Respondent 's contention , in this
connection , will be considered further , hereinafter.
When queried, by Respondent's counsel, with respect to
whether he had been hired for "temporary" service,
Schmidt proffered a categorical denial . He conceded,
however, that , both before and during his period of service
in Respondent's hire , he had filed job applications with
various other possible employers ; Rudy had been notified
with respect to his previously filed applications when he
was hired ; and Respondent 's proprietor had concurrently
been told he might be "leaving [at] any time" should he
receive another job offer with a desirable pay scale.
Respondent 's present contention-that Rudy's lack of
certainty regarding Schmidt's willingness to consider his
position "permanent" had, likewise, been a contributory
factor when the latter 's termination was being considered-
-will be reviewed , together with the firm's presumptively
proffered further contentions , hereinafter.
b. Respondent's defensive presentation
(1) Rudy's purported declarations regarding
Respondent 's possible unionization
Respondent 's proprietor , so the record shows, has in the
past been a Teamsters Union member; currently, however,
he considers his membership lapsed. While a witness, he
declared that, throughout the 17-month period between the
date when he became Respondents proprietor and the date
when this case was heard , unionism was a subject which
"we have always and still do" discuss openly. According to
Rudy's testimony, which his warehouse manager corrobo-
rated, Respondent's drivers have never been "discouraged"
from participating in such discussions . Respondent's
proprietor declared, candidly, that:
Ultimately it always came about talking about union-
ism because of the fringe benefits. The insurance plan
in particular.
In this connection, Rudy conceded that he had, several
times, told various employees he would "close the doors"
before going union . When requested to describe the
circumstances under which he made such statements,
Respondent 's proprietor declared that they had been made
within a conversational context calculated to convey his
belief that Respondent 's financial condition would "force"
such a closure, should the firm become unionized. He
testified , further, that he had made such statements while
"under strain" generated by his business problems, and
that he was "normally upset" because of his financial
difficulties.
Respondent's proprietor conceded, further, that, follow-
ing Roadhous ' report with respect to Business Representa-
tive Musser's telephone call, he had queried various
employees with regard to their union sympathies. However,
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when requested to report whether some of his drivers had,
then , committed themselves "for" or "against" unioniza-
tion , Rudy declared:
I really don't care for the word "for" or "against"
personally . These people that we are talking about have
always been good union employees. . . . Anyway they
are good union employees . I have always been a good
union man . We all believe in unionism as a whole. Now
when one of the fellows [makes] a statement I don't like
the Union , I don 't think they are really meaning I don't
like the Union , it is something they can do with or do
without . It's the fringe benefits that they need and that
they want.
More particularly, in this connection , Rudy was queried
with respect to Gold 's testimony regarding their conversa-
tion about unions shortly before the driver's October 17
discharge . He conceded that Gold had , then, been
questioned with respect to what he thought about unions.
Further, he declared his readiness to concur "generally"
with Gold 's testimony regarding the substance of their
conversation . Respondent's proprietor declared , further,
that:
The whole story was basically brought up, it was
generally concerning the union . . . benefits which are
very important to all family men [,] and I don 't believe
you can beat their fringe benefits.
Throughout his testimony , however, Rudy proffered
repeated declarations of concern-which he had conceded-
ly sought to convey during his prior discussions with
various company drivers-that Respondent could not
"afford" unionization , because his firm could not finance
presumptively high -cost Teamsters Union benefit pro-
grams.
(2) Ronald Gold 's discharge
With respect to Ronald Gold, Respondent's proprietor
cited four factors which had, so he contended , contributed
-A-a- his determination that the driver 's discharge was
warranted.
First: He declared that Gold, throughout a number of
months which preceded his termination , had frequently
been significantly tardy when reporting for work; and that
his persistent habit of late reporting had created both
business and employee morale problems . The present
record reflects a contention , bottomed upon Warehouse
Manager Quillan 's testimony, that Gold had frequently
reported between 45 minutes and 2-1/2 hours late. (In this
connection , Respondent 's proprietor testified, with Quil-
lan's corroboration , that, when Gold reported late, the
firm 's warehouse manager, or Gold's fellow drivers, had to
gather from stock, segregate, and make ready his prospec-
tive delivery loads on Respondent 's warehouse dock, so
that he could quickly load his truck and make a timely
departure ; but that their involvement with respect to such
tasks prevented their timely departures and generated
disaffection . Further, Respondent's proprietor declared
that sometimes Gold's tardiness had delayed his departures
sufficiently to prevent him from servicing the firm's
Cucamonga , California , customers , who were supposed to
be serviced on his route.)
Respondent's witnesses testified further that Gold had
been sometimes chivvied , sometimes reproached, and
sometimes reprimanded with respect to his tardiness on
numerous occasions ; Respondent 's proprietor had several
times volunteered to provide him with "wake-up call"
service, should he (Gold) consider such a service necessary
or helpful ; he had sometimes been called ; he had further
been warned, on two occasions at least , regarding his
possible discharge ; but he had maintained his pattern of
frequent late reports , nevertheless . (Some testimony prof-
fered in Respondent's behalf, which Gold was not recalled
to dispute, warrants a determination , which I make, that,
when reproached or reprimanded, he had , sometimes, said
he was sorry, but had , sometimes, replied defiantly, "If you
don't like it, you can fire me." While a witness, Gold
conceded that he had "probably" replied in these terms,
once, when reproached for tardiness by Respondent's
proprietor . Rudy, for his part, conceded that, before
October 17 specifically , for various business reasons, he
had been reluctant to satisfy Gold's challenge.)
The company's regular work schedule , so Rudy and
Quillan testified, required Respondent 's four "general
delivery" drivers to report by 3 o'clock on Monday
mornings for the purpose of preparing various school
deliveries ; by 5 o'clock on Tuesdays , Wednesdays, and
Fridays; between 3 and 4 o'clock on Thursdays , depending
upon the volume of school deliveries required ; and by 7
o'clock on Saturday mornings . However, no formal "check
in" procedures , whether by timeclock or signup sheets,
were followed ; Respondent's warehouse manager merely
noted, personally, whether the firm's drivers were reporting
as required. According to Respondent's proprietor, Gold
rarely reached the firm 's warehouse when required, with
particular reference to Respondent 's early Monday and
Thursday schedule.
Second: While a witness , Rudy claimed , with Warehouse
Manager Quillan's corroboration , that Gold sometimes
refused to make belated deliveries , following the conclu-
sion of his regular daily delivery runs . With respect to one
such refusal , which had allegedly taken place within a
month or two before Gold's termination , Respondent's
proprietor testified as follows:
There was an emergency delivery called in. There were
no other drivers at the dock and none other expected
back and he was the only man there . The delivery had
to be [made ]. Mr. Quillan went to [Gold] and asked
him to make the delivery and he refused . Now that was
one of the mornings when he was late on the job. If I
am not mistaken, that was-he was in about 6:00
o'clock that morning . And it was about 11:15 or 11:20
when this occurred . Mr. Quillan came in to me all upset
about it and he said I don 't know what to do, we have
to get the delivery made. So I went out personally and I
said Ronnie , would you please take this delivery out, it
has to go. The guy called in and he is out of
merchandise . I then turned around and walked back
into the office and I was in the office approximately 20
minutes and I came back out and the order . . . was
sitting right directly outside the office door . . . And
BEN HUR PRODUCE 75
when I walked out there I said, Bob, how come this
stuff is still sitting here and he said Ronnie wouldn't
take it and he went home.
The company's testimonial presentation, considered in
totality, reflects a contention that Gold, throughout his
period of service , had refused to make such late deliveries
several times ; two such refusals, so Rudy declared, had
been reported by Respondent' s warehouse manager within
the 3-month period which preceded the driver's discharge.
Third: Rudy's testimony further reflects a contention
that Gold frequently displayed a moody, grouchy "atti-
tude" while at work, which got progressively worse. While
a witness , Respondent's proprietor first described Gold's
behavioral reactions as surly and reflective of self-hostility
or guilt feelings ; he conceded, however, that he lacked the
vocabulary to characterize Gold's reactions precisely.
When requested to particularize with respect to Gold's
behavior, however, Rudy testified as follows:
Well, like when he was late for work. One example is he
would-the excellent driver that he is-he would get in
too much of a hurry. He would throw a lug of tomatoes
down on the ground and I don't know if you know
what that does to a lug of tomatoes if you throw it
down. We keep coffee on the premises for the people
that are working there. He would come in and he would
grab the cabinet open and he would throw it open and
he would go in there. . . . He would slam the closet
shut and he would walk outside and then he would
start throwing the merchandise around again.
In this connection , Respondent's proprietor further re-
called, Gold would sometimes repeat his challenging
statement , previously noted, that, should Respondent's
management find his conduct unlikeable, they could
discharge him.
Fourth: Rudy's testimony reflects some personal knowl-
edge with respect to Gold's marital difficulties which, so
Respondent's proprietor feared, might modify his on-the-
job behavior prejudicially, impair his generally congenial
relationship with company customers, and thereby damage
Respondent's business . Rudy, so he testified, was con-
cerned about Gold's marital problems, discussed them with
the driver, and volunteered to help, should his help be
desired. His testimony, with respect to further develop-
ments, reads as follows:
... it was a matter of weeks, I think, prior to when
he was no longer with the company [,] he had a
problem with his Mrs. We discussed it . . . and I asked
him if there was anything I could do to help him... .
On Friday, Ronnie came to me and said I hate to ask
you, he says, but I've got a chance to reconcile with my
wife and he said I would like to get off early and I said
sure . He was using the company truck at that time and
I asked, I said , one favor that I want to ask you, [a
customer ] Lord Charley's [load] is sitting here on the
dock. Would you deliver that on your way home and
he said sure. . . . And he ran it on his way home... .
If I am not mistaken it was the Monday following .. .
I approached him that morning and I said, Ronnie,
how did it work out; did everything work all right? He
said hell no, he says, it is this G.D. job. He says I've got
to agree with my wife. Igo home grouchy. I said, G.D.,
Ronnie, it isn't that you go home that way, you come to
work that way, And I turned around and walked off.
While a witness, Respondent's proprietor declared that this
conversation, capping Gold's previously demonstrated on-
the-job deficiences, constituted "the straw that broke the
camel's back." He testified that it generated the final
"decision in [his] mind," which, however, he was not yet
prepared to effectuate, that Gold should be discharged.
More particularly, he became persuaded, so he claims, that
Gold was actually blaming Respondent for his marital
problems; his sour "attitude" would be "bound to . . . rub
off" on the firm's customers ; and Respondent's business
would suffer.
Substantially, Respondent concedes herein that Gold's
various work performance deficiencies and general behav-
ior patterns, considered separately, might not have generat-
ed a discharge decision. Indeed, with these several
considerations disregarded, Rudy's testimony reflects
repeated concessions that, otherwise, he considered Gold a
generally "excellent" worker. Taken in conjunction,
however, the driver's four-fold demonstration of poor
performance and questionable behavior, so Respondent's
proprietor presently contends, he finally overcame his
reluctance, generating a so-called mental readiness, to
consider Gold's termination.
(3) Everett Schmidt's discharge
With respect to Everett Schmidt, Respondent's proprie-
tor likewise cites a congery of three motivational factors
which, so he presently contends, contributed to his
determination that this driver's dismissal, concurrently
with Gold's, would be warranted.
First: Schmidt had been hired by Roadhous, Respon-
dent's office manager; the latter, so Rudy testified, had
reported that Schmidt had previously filed several job
applications with other prospective employers, and would
merely remain with Respondent temporarily. Warehouse
Manager Quillan, whose recitals corroborate those prof-
fered by his superior, testimonially reported statements by
Schmidt that he was, indeed, looking for other work; that
he was currently filing applications with other prospective
employers; and that he would leave, should he procure
another position.
(Quillan further testified that during his period of service
Schmidt sometimes stopped for the purpose of filing
applications with other employers while making his regular
route deliveries. Respondent's witnesses, however, have
proffered no factual basis for Quillan's charge; nor have
they buttressed the charge with circumstantial details.
While a witness, Schmidt categorically denied stopping,
during his delivery runs, to file job applications; he did,
however, concede that he had borrowed a company truck
once, with permission, for transportation when going to a
job interview with another prospective employer. Upon
this record, Respondent's charge, that Schmidt filed job
applications with other employers on company time,
cannot be considered substantiated.)
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Previously , within this Decision , Schmidt's testimonial
concession , substantially , that he did not consider his
produce delivery work with Respondent herein a truly
"regular" or "steady" position has been noted . Respon-
dent 's proprietor contends , now, that his business could
not be maintained "properly" with a driver 's threat of
possible resignation, upon little or no notice , perpetually
present.
Second: While a witness , Rudy contended , with his
Warehouse Manager's general corroboration, that Schmidt
had, like his fellow dischargee , sometimes refused to make
late deliveries . In this connection , however, few circum-
stantial details have been provided ; Rudy testified , merely,
that:
... all I know is when I went out there [to
Respondent's dock] the orders was sitting on the table
and I asked why they hadn 't gone out on delivery and
the man [Quillan ] said somebody wouldn't take
them .... Anyway that' s what happened on several
occasions-there was more than several occasions. Bob
Quillan would-come into the office and he would be all
upset . That Everett Schmidt would not take deliveries
out that he was told to take out [,] and the statement
that Everett would generally make was I have already
been down that way; I am not going again.
Further , Rudy testified that Office Manager Roadhous
once told him Schmidt might resign, should he (Rudy) get
too "upset" about refusals to make deliveries.
Third: Previously , within this Decision, reference has
been made to Schmidt 's purported refusal to take a newly
hired driver , Ron Hernandez , for a morning trip, so that
Hernandez could become familiar with his (Schmidt's)
delivery route . Schmidt's testimony reflects his present
belief that Hernandez had initially reported for work on
the very day of his (Schmidt's) discharge ; Rudy testified,
however, that Hernandez had reported 1 day before
Schmidt 's termination , and that the driver's so-called
refusal had taken place then . While a witness , Quillan
reported that Schmidt , who had several times previously
taken new drivers on route tours , complained when
requested to show Hernandez his route ; thereafter, so
Quillan reported , Schmidt had left Respondent 's dock at 7
o'clock , leaving Hernandez behind . (Schmidt's denial that
Hernandez was, thus , slighted, has been noted , previously,
within this Decision . The driver contended , without
qualification , that Hernandez had been taken for a route
tour .) Schmidt, concededly , had returned for a second
delivery load between 10 and 10 : 30 that morning ; Quillan
subsequently heard from Respondent 's proprietor, so the
warehouse manager 's testimony shows , that Schmidt had
taken Hernandez for a route tour during his second, or
some subsequent, delivery run.
With matters in this posture , Respondent 's proprietor,
when requested to summarize his motivation for Schmidt's
discharge , contended that his lack of certainty regarding
the driver 's willingness to remain in Respondent 's employ
had been "partially" determinative . He further testified:
Then , in our particular business it's awfully hard and
very expensive to break someone in to the produce
business . . . how to lift up a carton of lettuce and how
to handle a lug of tomatoes or lug of peaches or
whatever , so it is in good condition by the time the
customer[s] themselves receive it . Both Everett and
Ronnie-both of them-actually are excellent delivery
men. They are excellent delivery men but as our
business grew and expanded and with things going on
like the threat-in other words a threat hanging over
your head that the driver may be here today and gone
tomorrow . I mean as good as a driver may possibly be,
its awfully hard to try to operate . . . rationally having
this over your head . So that plus the fact that-which
had been building up in me as far as Everett not taking
deliveries out when they came in and what actually
brought it to a head , was that morning when hejust flat
refused to break in another driver . who we wanted to
teach the produce business and left him there.
Rudy, however, did not discharge Schmidt personally; he
testified that he didn't like Everett and hadn't wanted to
talk to him . Respondent's proprietor could proffer no
testimonial justification , himself , for Produce Buyer
Smith 's failure to provide Schmidt with a full , candid
statement of Respondent 's discharge rationale , when the
driver was given his final check. Smith was never
summoned for that purpose ; his failure to testify , herein,
has neither been questioned nor discussed for the record.
c. General Counsel's rebuttal
General Counsel's presentation, herein , reflects two
testimonial proffers , through Mrs . Galbraith , Respondent's
former bookkeeper, clearly calculated to rebut Respon-
dent's various defensive contentions, which have been
noted.
First: Mrs. Galbraith testified without contradiction that
shortly before noon she was requested to prepare full
weekly paychecks , for both Gold and Schmidt, at her
earliest convenience . Within a short time thereafter,
however, she went to lunch. Then , she recalled:
[W]hen I got back from lunch-I asked Mr. Rudy if he
still wanted me to make their checks out and he said
no, I have already done it . I had to get them out of
here.
According to Mrs . Galbraith , this terminated their conver-
sation . Respondent 's proprietor , while a witness , proffered
no denial ; neither did he provide an explanation for his
purported final remark.
Second: More significantly , however, Mrs. Galbraith
testified that, within a day or two following these disputed
discharges , she was told , by Mrs. Rudy particularly, why
Gold and Schmidt had been terminated . With respect
thereto , Respondent's former bookkeeper testified:
She [Mrs . Rudy] came in as she very often did in the
afternoon and she greeted me and she said how are
you, Ethel , and I said I am cross and I am tired because
I am way behind in my work , Arthur [Rudy ] has been
out so much and I have had to answer the telephone
and my work is way behind. She said , Ethel, I am very
sorry but Arthur had to go and see his attorney and his
BEN HUR PRODUCE 77
attorney told him to get back here to the warehouse
and pay those boys off [or] the union would get him. So
he'had to be gone.
One or two days later, so Mrs. Galbraith testified, Mrs.
Rudy's comments were substantially repeated. While Mrs.
Rudy was standing in the open doorway between Mrs.
Galbraith's office and her husband's directly adjacent
office , Respondent's former bookkeeper recalls:
She just again asked me how I was and again she
repeated to me that she was very sorry that I was so far
behind in my work because Arthur had to be out of the
office but that he did have to see his attorney and there
was no getting around it and he went to see him and he
told him to get back and pay Ron Gold and Everett
Schmidt off [or] the union would get them .... Later
in the day after Mrs. Rudy had left, I went in to Arthur
and I said , do you realize , Arthur, that your wife is
broadcasting the fact that you let those two boys go
because of the Union? And he said, yes, Ethel, I
do.... He shook his head. . . . Up and down.
When subsequently questioned by Respondent's counsel,
Mrs. Galbraith conceded that Mrs. Rudy seemingly
possessed a somewhat volatile temper. She was queried
then with respect to whether she considered Mr. Rudy's
"up and down" head nods calculated to convey his
consensual agreement with Mrs. Rudy's remark, or merely
calculated to suggest that he could not control her. Mrs.
Galbraith declared, "I would say he agreed with her."
Respondent's former bookkeeper was asked, then, what
had led her to that conclusion. She replied:
Because he heard her and he was pretty down by then.
I can tell you. I know Arthur Rudy pretty well. . . . He
was pretty down. He felt, you know, that 'everything,
--in other words he expressed to me [,] if you would
like'to know, that he felt like the whole world was
tumbling around him, that he didn't know what he was
doing wrong all the time.
Substantially, General Counsel's representative contends
i--if I grasp his "theory of the case" correctly-that these
"hearsay" concessions, chargeable to Rudy and his wife as
Respondent's coproprietor, should be considered sufficient
to persuasively negate the firm's several defenses herein;
they call, so General Counsel would presumably claim, for
a determination that Respondent's proffered multiple
justifications for discharging Gold and Schmidt practically
simultaneously must be considered pretextual.
d. Respondent's rejoinder
Respondent's proprietor was never questioned, within
the present record, with regard to Mrs. Galbraith's
testimony that following her October 17 return from lunch
he had said he "had to get [Gold and Schmidt] out" from
Respondent's premises. That testimony, therefore, stands
without contradiction.
Further, Respondent's proprietor, herein, has proffered
no challenge with respect to Mrs. Galbraith's testimony
purportedly detailing Mrs. Rudy's repetitive comments.
When queried, however, with respect to whether he had
"agreed" with Mrs. Rudy's statements, Respondent's
proprietor noted a flat denial. Respondent's counsel then
asked Rudy whether he could explain why his wife had
made the statements previously noted herein. (General
Counsel contended that such a question would call for a
witness-chair conclusion with respect to Mrs. Rudy's prior
subjective state of mind; his objection was sustained.)
Respondent's counsel , however, proffered no rephrased
question drafted to pursue this particular line. Rudy was,
rather, requested to detail the circumstances which had
persuaded him to consult counsel , with particular reference
to his proposed discharges, together with his counsel's
proffered "advice" with respect thereto. Respondent's
proprietor testified:
Well, I had two purposes. One purpose, I had just
received a letter in the mail from an attorney that my
wife didn't get along with [,] pertaining to our
[in]corporation papers which he had filled out [,] but
they had never been signed and submitted. He has
$200-300 of our money that we had to put up at that
particular time . . . and I wanted to get advice on this
[,] plus I had never really been an employer and I didn't
know exactly what my rights were as an employer. I
knew that both Everett and Ronnie were on withdrawal
cards from the Teamsters, but I didn't know whether this
would involve the Teamsters organization as a whole or
whether it would involve the Labor Board or anything else.
I had no idea. I was just in the dark. So I had to get
some advice and I figured that was the place to
go.... The advice I got to do-the advice I got is to do
whatever I thought was right. As far as the [in]corpora-
tion papers, I was advised to sit on them for a while
and not submit them. [Emphasis supplied.]
Shortly after proffering this direct testimony, Respondent's
proprietor was queried further, by General Counsel's
representative, regarding his consultation with counsel. His
testimony with respect thereto, during cross-examination
particularly, reads in material part as follows:
Q. Why did you call the [attorney]-you are aware
as a former employee-that an employer can fire an
employee for cause, correct?
A. Then I don't know why I am here.
Q. Why did you call your attorney to inquire
whether you could fire these two individuals? [Objec-
tion; sustained]
JUDGE MILLER : You mentioned that there were two
matters discussed during your call [upon] your attor-
ney.... First [,] the matter of these [in]corporation
papers . . . and secondly [,] the question as to what
your rights as an employer were in the event-with
respect to these two men. Now had anything happened
in your business that led you to decide to ask your
attorney that second question?
TIME WITNEss : Yes, sir . The situation in my mind as
having made a decision in my mind to let them go. In
other words as the gentlemen said , the straw that broke
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the camel's back on either or both of them. With
Ronald it was the day that he told me that he was
actually [,J in so many words, blaming the company
itself for his marital problems and in my mind I figured
now after what we have been through together, if he is
assuming that attitude, it's bound to be-to rub off on
the customers and it is going to be bad for the business.
With Everett Schmidt when he refused to take that man
out to break him in . . . to replace Ronald Gold.
* * *
Q• (By Mr . Zigman): Do you ordinarily call an
attorney when you are thinking of terminating an
employee? [Objection; sustained]
THE WITNESS: I was just going to say I never fired
anybody. I don't know.
Q. (By Mr. Zigman): You never had any drivers
that worked for you at Ben Hur that you discharged?
A. I'm afraid if I ever had to fire anybody I would
chicken out.
Q. So it is your testimony that since there was a
possibility of terminating two employees, you decided
to check with your attorney for that?
A. Yes, sir.
Q. And then you also testified that you weren't
sure about their status with withdrawal cards[.] [How]
did that come into play when you were talking with
your attorney?
A. Only to the point as a new employer, I don't
know what I am supposed to do or what I am not
supposed to do and if you knew my record of
accidentally getting into trouble, you'd understand that
everything we have in the world is invested down there.
It's a real tight rope.
Q. Am I correct in phrasing this that you felt that
the fact that these men may have had withdrawal cards
from the union may have had some effect upon
whether or not you could terminate them?
A. Yes, sir, I felt there might be a possibility.
Upon this record, Respondent would presumably contend
that Mrs. Rudy had really misstated the substantive
"advice" which her husband had received from counsel;
that Respondent's proprietor had never manifested his
concurrence with her mistaken representations; and,
therefore, that Mrs. Galbraith's testimony, properly con-
strued, reflects no binding "admissions" chargeable to
Respondent's proprietors. Rudy's proffered justification
for both discharges, therefore, should, so Respondent's
counsel would presumably suggest, be considered meritori-
ous.
C. Discussion and Conclusions
1. Interference, restraint, and coercion
The present record, considered in totality, fully warrants
a determination , consistent with General Counsel's conten-
tion, that Respondent's proprietor, following Office Man-
ager Roadhous ' report with respect to Business Represent-
ative Musser's telephone call, questioned various company
drivers with regard to their union sympathies. Further,
Rudy conceded while a witness that, both before Musser's
call and thereafter, he had, more than once, told his firm's
workers he would "close the doors" before dealing with
Complainant Union herein. These questions and declara-
tions clearly transgressed permissible limits.
Rudy's testimony-wherein he conceded questions
calculated to solicit statements with respect to union
sympathies, which had been directed to Ronald Gold
particularly and various other drivers-may well reflect,
when taken at face value, conversations which took place
within a relatively "free and easy" context, between
persons who considered their views relative to unionism
generally compatible. However, Rudy's questions, within
my view, cannot properly be considered privileged merely
because his listeners may have considered him a good
"union" man, like themselves. His questions, concedely,
followed Rudy's knowledge with respect to Business
Representative Musser's telephone call; in Ronald Gold's
case , particularly, Rudy's conversational gambit followed
Musser's subsequent designation card solicitations. Res-
pondent's drivers could reasonably conclude, therefore,
that their superior's direct questions, calculated to probe
their union sympathies, derived from something more than
a mere conversational or casual interest regarding their
sentiments "for" or "against" self-organization generally.
Further, Rudy's queries were never, so far as this record
shows, pursued with due regard for those "safeguards"
which, within this Board's view, could conceivably have
rendered them statutorily privileged. Compare Struksnes
Construction Co., Inc., 165 NLRB 1062, 1063, (1967); Blue
Flash Express, Inc., 109 NLRB 591, (1954), in this
connection. A determination seems clearly warranted,
therefore, that Respondent's proprietor, when he conced-
edly questioned various company drivers regarding their
union sympathies, did interefere with, restrain, and coerce
such employees with respect to their exercise of rights
statutorily guaranteed.
Further, Rudy's conceded comments with respect to his
firm's possible closure, should he find himself required to
bargain with Complainant Union herein, likewise call for
Board proscription.
The present record, considered in totality, does warrant a
determination, which I make, that Respondent's proprie-
tor, when he learned that Complainant Union might be
seeking representation rights, became seriously disturbed
and distressed. I find it conceivable, certainly, that Rudy
and his wife would be concerned, fearful that their
substantial business commitments-measured in time,
effort, and money-might be endangered. Without a
doubt, Respondent's proprietor must have been worried,
following Business Representative Musser 's telephone call,
that a prospective demand for Complainant Union's
recognition and collective bargaining might circumscribe
his freedom to conduct business, raise his costs, and
compromise his firm's competitive trade position. Such
concerns, however, provide no license for statements or
conduct-calculated to counter a labor organization's
BEN HUR PRODUCE 79
campaign for representative status-which transcend
permissible limits.
The National Labor Relations Act grants workers self-
organization rights; the right to form, join, or assist labor
organizations ; and the right to bargain collectively through
representatives of their own free choice. When workers
pursue these rights-through their "concerted activity"
within lawful bounds-concerned employers may not react
with threats of reprisal or force, promises of benefit, or
coercive conduct.
Upon this record, there can be no doubt that Rudy's
conceded comments, with respect to closing Respondent's
doors, did-within their total context-carry a coercive
thrust, statutorily proscribed.
Respondent's defensive presentation reflects a conten-
tion that Rudy's comments were calculated to suggest a
possible business closure which might be "forced" because
Respondent lacked the financial resources to carry high-
cost Teamsters Union benefit programs. Nevertheless,
counsel 's suggestion-that Rudy's several references to
business closure , within such a conversational context,
should be considered mere prophecies or predictions- can-
not conclude the matter. See N.LR.B. v. Gissel Packing
Co., Inc., 395 U.S. 575, 617-618 (1969) in this connection.
Therein, the Supreme Court, having noted the firmly
established "free speech" right of concerned employers to
communicate their views, pointed out that such a right to
communicate cannot outweigh the coequal right of
workers to associate freely, which the statute guarantees. It
declared further that:
... any balancing of those rights must take into
account the economic dependence of the employees on
their employers, and the necessary tendancy of the
former, because of that relationship, to pick up
intended implications of the latter that might be more
readily dismissed by a more disinterested ear ... .
The Court, then, set forth certain rigorous standards,
pursuant to which the impact of any concerned employer's
stated views , when they constitute predictions regarding
the consequences of unionism, might properly be evaluat-
ed. In this connection, the Court declared:
Thus, an employer is free to communicate to his
employees any of his general views about unionism or
any of his specific views about a particular union, so
long as the communications do not contain a "threat of
reprisals or force or promise of benefit." He may even
make a prediction as to the precise effects he believes
unionization will have on his company. In such a case,
however, the prediction must be carefully phrased on
the basis of objective fact to convey an employer's
belief as to demonstrably probable consequences
beyond his control. . . . We therefore agree with the
court below that "conveyance of the employer's belief,
even though sincere , that unionization will or may
result in the closing of the plant is not a statement of
fact unless , which is most improbable, the eventuality
of closing is capable of proof."
With these standards for guidance, Rudy's concededly
impetuous statements regarding the possibility of plant
closure, within my view, cannot be considered statutorily
or constitutionally privileged. Rather, I find such state-
ments, within their total context, reasonably calculated to
generate a conviction, within his listener's minds, that
Respondent's continued existence, together with their jobs,
would require their abstention from self-organization. That
message, so I find, constituted a statutorily proscribed
threat of retaliation, reasonably calculated to interfere
with, restrain, and coerce Respondent's workers.
2. The discharges
a. Respondent's purported concessions
With respect to both discharges now under considera-
tion, Mrs. Galbraith's testimony, detailing certain hearsay
concessions purportedly chargeable to Respondent's pro-
prietor and his wife-which, so General Counsel contends,
persuasively reveal Rudy's presumptively "true" motive
-must first be considered.
Mrs. Rudy's statement: Previously, within this Decision,
Mrs. Galbraith's witness-chair recitals-which reflect a
purportedly crucial concession volunteered by Mrs. Rudy,
Respondent's coproprietor-have been noted. Substantial-
ly, Mrs. Galbraith testified, so the record shows, that,
during two separate conversations, Mrs. Rudy had report-
ed her husband's receipt of legal counsel that he should
"pay [Gold and Schmidt] off" before Complainant Union
could "get" him. Since Arthur Rudy and Mrs. Rudy,
together, concededly "own" the Respondent business, both
must be considered parties with respect to this proceeding;
Mrs. Galbraith's hearsay testimony with regard to Mrs.
Rudy's presumptive "admission" was, therefore, held
receivable. California Evidence Code, Section 1220, Ad-
mission by Party. Though receivable, however, her testimo-
ny, within my view, cannot reasonably be considered
probative, for several reasons . First: Mrs. Galbraith's
testimony reflects "double" hearsay; clearly, Mrs. Rudy's
representation, which supposedly detailed the substantive
legal counsel her husband had received, could only have
been derived from a conversational recapitulation which
he had previously provided. When a purported hearsay
declarant-herein, Respondent's coproprietor-has, alleg-
edly, proffered statements bottomed upon someone else's
prior narrative declarations, that hearsay declarant's
reportorial reliability must be taken on faith; clearly, it
cannot be trial tested. General Counsel has made no
showing, herein, calculated to warrant a determination that
Mrs. Rudy was correctly summarizing a conversation held,
without her presence, between her husband and his legal
counsel. Second: Rudy's direct testimony detailing the legal
"advice" which he was given, which I find credible in this
connection, strongly suggests, contrariwise, that Mrs. Rudy
may have misheard, misunderstood, or misremembered her
husband's report with respect thereto. Mindful of this
possibility, I cannot confirm a conclusion, based on Mrs.
Galbraith's testimony solely, that Mrs. Rudy really
conceded her husband's discriminatory motivation for
both discharges challenged herein.
Mr. Rudy's statement: General Counsel 's testimonial
presentation, however, presumably reflects a secondary
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contention, bottomed upon Mrs. Galbraith's further
testimony, that Respondent's proprietor-when confronted
with a recapitulation of his wife's purportedly revelatory
declaration-manifested his concurrence therewith, or his
belief regarding its truth. (When a witness properly
qualified testifies that a concerned party-with knowledge
of some particular statement's substantive content-has, by
words or other conduct, manifested his adoption thereof, or
his belief regarding its truth, that party's words or conduct
signifying concurrence may constitute a so-called adoptive
admission receivable for the record. See California Evidence
Code, Section 1221. Adoptive Admission, in this connection.)
Mrs. Galbratih's testimony, so the record shows, reflects
her recollection that Respondent's proprietor-when asked
if he knew that Mrs. Rudy was "broadcasting the fact" that
he had terminated Gold and Schmidt because of their
union connection-replied, "Yes, Ethel, I do" while
nodding his head. Subsequently, when questioned directly,
Respondent's former bookkeeper declared her belief that
Rudy was, thereby, signifying his concurrence with the
substance of his wife's representations.
I cannot agree . Despite Mrs. Galbraith's presumably
sincere belief that her superior was signifying concurrence
with his wife's reported statement, I derive no similar
conclusion from her proffered recollections. When she
repeated Rudy's words and described his concurrent
gestures , her witness-chair behavior belied whatever
conclusion a trier of fact might, otherwise, draw from her
verbal testimony taken at face value. (While she was
testifying, with respect to Rudy's reaction, I noted Mrs.
Galbraith's demeanor closely. Respondent's former book-
keeper, concurrently with her testimonial recital, tried to
convey Rudy's facial expression, head movements, and
gestures . Her facial expression conveyed somewhat down-
cast resignation ; her nodding head was tilted slightly, with
her chin lowered toward her chest, suggesting a sad,
reluctant acknowledgement rather than a consensual
avowal; her shoulders were slumped; her arms were held
closely at her side, with her hands, palms upward, limply
extended. Mrs. Galbraith was, within my view, capably
and convincingly depicting her former employer's resigned
concession, merely, that he knew what Mrs. Rudy had
been saying; she was not depicting his reaffirmation with
respect to the correctness of his wife's reported remarks.)
When reconsidered, with due regard for her witness-
chair demeanor, Mrs. Galbraith's testimony reflects no real
conflict with Rudy's; I credit his witness-chair denial,
therefore, that-when confronted with a recapitulation of
his wife's reported declarations-he signified concurrence.
The record, despite General Counsel's presumptively
contrary contention, thus reflects no credible "adoptive
admission" that Gold and Schmidt were terminated,
consistently with legal "advice" received, for the purpose
of forestalling Respondent's unionization.
b. General Counsel's prima facie case
With Respondent's reportedly conclusive "admissions"
rejected as nonprobative, we confront this case 's single
remaining question: Has General Counsel satisfied other-
wise his burden of proof, herein, with respect to Respon-
dent's purportedly forbidden motivation for Gold's and
Schmidt's challenged discharges?
Their participation in Complainant Union's tentative,
less-than-successful, card signup campaign cannot be
considered disputed. And Respondent's knowledge, with
respect to their union sympathies particularly, stands
substantially conceded. (Respondent's proprietor contend-
ed, when first questioned, that neither Gold nor Schmidt
had ever discussed Respondent's possible unionization
with him, directly. Further, he denied any knowledge that
they had signed Complainant Union's designation cards.
The record, however, fully warrants a determination,
consistently with Rudy's subsequent testimonial conces-
sions, that Schmidt had, within the month which preceded
his discharge, openly professed his favorable views with
respect to unionization; that Gold had, likewise, revealed
his union sympathies when questioned; and that Respon-
dent's proprietor knew both men were union withdrawal
card holders, presumably well disposed toward Respon-
dent's possible unionization.)
However, with Respondent's purported concessions
relative to motivation disregarded, General Counsel's
contention that Gold and Schmidt were dismissed for
statutorily proscribed reasons derives from circumstantial
evidence merely. The record does reveal Rudy's worried
concern regarding his firm's possible unionization; that
concern had clearly been manifested, through statements
and behavior herein found violative of law, when Rudy
questioned his drivers regarding their "union" views, and
concurrently declared he would "close the doors" before
dealing with Complainant Union as their collective-bar-
gaining representative. Further, the record does show that
Gold and Schmidt were terminated less than I month
following Office Manager Roadhous' report that Com-
plainant Union's business representative might, conceiva-
bly, mount a conventional designation card campaign.
Though nothing, within the present record, would warrant
a determination that Rudy considered Gold or Schmidt
personally responsible for Complainant Union's presump-
tive determination to seek representative status, the
possibility that he may have considered their removal
necessary to forestall Business Representative Musser's
reasonably anticipated program certainly cannot be
cavalierly gainsaid.
Nevertheless, General Counsel's showing, thus summa-
rized, presents nothing more than a circumstantial, prima
facie, case . Respondent has contrariwise proffered a
multiplicity of purported, circumstantially detailed, justifi-
cations for both challenged discharges herein. Confronted
with Respondent's defensive presentation, General Coun-
sel, before he can prevail, must demonstrate preponderant-
ly that Rudy's various proffered justifications for Gold's
and Schmidt's terminations cannot stand scrutiny. Wheth-
er they can, therefore, must now be considered.
c. Respondent's motivation
The question of whether a particular employee has been
terminated, contrary to statute, wholly or partially because
of his union or concerted activity can rarely be considered
susceptible of easy determination. The principles which
should guide judgments may not be in doubt, but 8(a)(3)
BEN HUR PRODUCE 81
cases have normally been considered "difficult" cases.
N.LR.B. v. Atlanta Coca-Cola Bottling Company, Inc., 293
F.2d 300, 3O&^(C,A. i, 1961). Necessarily, they call for
basic determinations regarding the concerned employer's
state of mind; nearly always, they present vexatious
problems of motive and pretext.
Therefore, resolution of questions with respect to
claimed discriminatory discharges by any trier of fact calls
for careful appraisals which must compass all the relevant
facts and circumstances surrounding the questioned
separations ; inter alia, recognition must be given the settled
principle that, without some unlawful motive persuasively
shown, the concerned employer's judgment with respect to
a worker's termination cannot be challenged. "Manage-
ment can discharge for good cause, or bad cause, or no
cause at all. It has, as the master of its own business affairs,
complete freedom with but one specific, definite qualifica-
tion : It may not discharge when the real motivating
purpose is to do that which Section 8(a)(3) forbids."
N.LR.B. v. McGahey, et al., 233 F.2d 406, 413 (C.A. 5,
1956). Of course, it is equally well established that the
existence of some "justifiable ground for dismissal"
provides no defense for a concerned employer, should that
ground be found pretextual and not the moving cause. See
N. L R B. v. Solo Cup Company, 237 F.2d 521, 525 (C.A. 8,
1956), in this connection.
With due regard for the present record, considered in
totality, I find myself constrained to conclude that General
Counsel has failed to sustain his burden of proof herein.
The basis for my conclusion may be shortly stated. Since,
with matters in their , present posture, General Counsel
cannot, within my view, rely on Respondent's purported
"admissions" conceding that Gold and Schmidt were
terminated for statutorily proscribed reasons, his conten-
tion that they were both discriminatorily discharged must
rest largely on weaknesses purportedly discernible in
Respondent 's defensive presentation. However, General
Counsel has not, within my view, persuasively countered
Respondent's multiple justifications for Gold's and
Schmidt's challenged discharges.
With respect to Respondent's proffered recapitulation of
Ronald Gold's purported work deficiencies, certain por-
tions of the testimonial record should be noted, particular-
ly. First: Respondent's second most senior driver himself
conceded that he had "occasionally" reported late for
work. Though he noted pro forma denials with respect to
Respondent's claim that he had reported late frequently,
sometimes between 45 minutes and 2-1/2 hours later than
he should have reported, Gold conceded that he had been
asked, several times , whether he needed "wake up" calls,
and that, despite his rejection of this proffered service, he
had sometimes been called . Further, while denying that he
had over been "reprimanded" for reporting late, Gold
conceded that he had sometimes been greeted, when he
reported, with sarcastic salutations clearly calculated to
reflect Respondent's displeasure . Finally, he conceded
that, when reproached by Respondent's proprietor, once,
he had challenged the latter to discharge him. Considered
in totality, Gold's concessions , within my view, warrant a
determination that Respondent's proprietor and warehouse
manager did have good cause for concern with regard to
his persistent tardiness; that his deficiencies in this respect
had generated business difficulties and morale problems;
that his tardiness was-for a substantial period of
time-tolerated, but never condoned; and that, taken in
conjunction with his further deficiencies and questionable
behavior previously noted within this Decision, his
persistence in reporting late did, finally, contribute,
significantly, to Rudy's subjective discharge determination.
Second: While a witness, Gold likewise conceded that,
when fatigued while at work, he had sometimes reacted
crossly; Respondent's contention that he had frequently
displayed moody, grouchy on-the-job behavior stands
without a persuasive rebuttal. Third: When taxed with his
purported refusals to make belated deliveries, Gold
conceded two such refusals within the 3-month period
which had preceded his termination. In this connection,
Respondent's counsel queried Gold with respect to
whether he had challengingly thrown proffered delivery
invoices back on Warehouse Manager Quillan's table when
refusing to make deliveries; replying, Gold first noted a
denial, then said he could not recall such an incident, but
finally conceded that he might "possibly" have done so.
Fourth: Respondent's former driver substantially conceded
discussions with Rudy regarding his marital difficulties.
However, he did deny telling Respondent's proprietor that
his "G.D. job" was making him grouchy. Despite Gold's
denial, the present record, considered in totality, persuades
me that Rudy's testimony with respect thereto, previously
noted, merits credence.
With respect to Respondent's claimed justification for
Schmidt's discharge, likewise significant testimonial confir-
mations can be found within the present record. First:
While a witness, Schmidt conceded that he never had
considered his produce delivery job a regular or steady
position, which he proposed to retain. True, he may not
have considered his position "temporary" since there had
never been a consensual understanding that he would leave
Respondent's hire by a definite, determinable date;
regardless of semantics, however, there can be no doubt
that Respondent's proprietor had been given good reason
to believe that he might leave on short notice. Second:
When taxed with having refused to make belated deliver-
ies, Schmidt conceded that he had done so. With respect to
one such refusal-several weeks before his October 17
discharge-he contended, merely, that his conduct should
have been considered excusable, because the situation
developed during midafternoon presumably following a
full day's work, because he was tired, because the delivery
involved a second order from a customer upon whom he
had already called, and because another driver was
scheduled to make a delivery in that customer's direction.
Whether Respondent's warehouse manager should have,
under these circumstances, refrained from requesting
Schmidt to make a belated delivery need not be deter-
mined; the driver's testimony, regardless of its tenor, fails
to negate Respondent's claim that his refusal had generat-
ed managerial concern. Third: With respect to Schmidt's
purported refusal to take Driver Ron Hernandez for a
route tour, during his first October 16 delivery run, the
record reflects testimonial conflict. Schmidt flatly denied
any failure or refusal to cooperate; Rudy and Quillan
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified , contrariwise , that Schmidt had left Hernandez
behind, when he made his first delivery trip. (Hernandez
did not testify. I am satisfied, however, that Respondent's
counsel and Respondent 's proprietor made a good-faith
attempt to procure his testimony; that he could not be
reached while the hearing was in progress; and that
Respondent's counsel relinquished his right to request a
recess, for the purpose of procuring Hernandez' testimony,
so that this case's disposition might be speeded. No
derogatory inferences have been drawn, therefore, from
Respondent 's failure to produce Hernandez.)
Upon the record herein made-coupled with my
observation of Schmidt, Rudy, and Quillan as witnesses-I
credit Respondent's, proffered version. Schmidt, so I find,
failed or refused to take Hernandez for a route tour, at
least during his first October 16 delivery trip. He may have
done so later; nevertheless, Respondent's proprietor,
within my view, could reasonably have considered his
behavior questionable.
I conclude, therefore, that Respondent's several prof-
fered justifications for Gold's and Schmidt's terminations
-unlike the reasons which a concerned employer prof-
fered within another case which involved a purportedly
discriminatory discharge-lo not "fail to stand" under
scrutiny, N.LR.B. v. Dant & Russell, Ltd., 207 F.2d 165,
165 (C.A. 9, 1953). Respondent's drivers, while testifying
herein, proffered various statements calculated to justify
their conduct, or provide them with exculpation, relative to
each situation wherein Respondent's proprietor had
purportedly considered their work performance or behav-
ior substandard. I cannot, however, draw-from their
proffered testimony-the conclusion that Rudy's decisions
with respect to their dismissal were so lacking in reasona-
bleness as to warrant a judgment that his asserted grounds
should be considered pretextual. Without a record basis
more substantial than General Counsel's presentation
herein provides, no determination would be justified,
within my view, that Respondent's proprietor merely
seized on certain facets of their work performance and job
behavior to justify terminations, because their record in
these respects provided a plausible pretext for retaliatory
action calculated to penalize their pursuit of statutorily
protected rights.
True, Respondent's proprietor, mindful of their union
connections , did seek legal counsel before effectuating his
previously reached, subjective determination that these two
drivers deserved discharge. Rudy's testimony, which I
credit in this connection, will not, however, support a
determination that he sought legal "advice" with respect to
whether their work performance deficiencies provided a
colorable justification sufficient to camouflage his determi-
nation to discharge them because of the union sympathies.
Rather, Respondent's proprietor-who had determined,
previously, that Gold and Schmidt had finally overtaxed
his forebearance-sought legal counsel with respect to
whether their union connection should be considered a
restrictive factor, which could or should prevent their
discharge for cause. Respondent 's proprietor was merely
told, so his credible testimony shows, that he was legally
free to proceed with whatever course of action he
considered right. Upon this record, I cannot conclude,
despite some suspicious circumstances, that Gold's or
Schmidt's participation in protected union and/or concert-
ed activity constituted a statutorily proscribed "moving
cause" for their respective terminations. I will recommend,
therefore, that General Counsel's complaint, in this
connection, be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's course of conduct set forth in section III,
above, occurring in connection with Respondent's business
operations discussed in section I, above, had, and contin-
ues to have, a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States;
absent correction, such conduct, to the extent herein found
violative of law, would tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
In the light of the foregoing findings of act, and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Ben Hur Produce, is an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and business activities which affect commerce,
within the meaning of Section 2(6) and (7) of the Act, as
amended.
2. General Teamsters, Sales Drivers, Food Processors,
Warehousemen & Helpers Local 871, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act, as amended, which
admits certain of Respondent's employees to membership.
3. Respondent's proprietor-by declaring his readiness
to close rather than permit his business to become
unionized, and by questioning various employees with
regard to their union sympathies-interfered with, re-
strained, and coerced his employees, with respect to their
statutorily guaranteed rights. Thereby, Respondent en-
gaged, and continues to engage, in unfair labor practices
affecting commerce within the meaning of Section 8(a) (1)
and Section 2(6) and (7) of the Act, as amended.
4. General Counsel has not, herein, produced reliable,
probative, or substantial evidence sufficient to justify a
determination that Respondent's proprietor-when he
discharged Ronald Gold, directed Everett Schmidt's
termination, and thereafter failed or refused to recall or
reinstate them---did engage, or presently continues to
engage, in unfair labor practices affecting commerce,
within the meaning of Section 8(a)(1) and (3) of the Act, as
amended.
THE REMEDY
Since I have found that Respondent has engaged, and
continues to engage, in certain unfair labor practices which
affect commerce, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirmative
action, including the posting of appropriate notices,
designed to effectuate the policies of the Act, as amended.
Upon the foregoing findings of fact, conclusions of law,
BEN HUR PRODUCE
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommend-
ed:
ORDER1
Respondent, Ben Hur Produce, its owners, agents,
successors, and assigns, shall:
1. Cease and desist from interfering with, restraining,
or coercing employees, through interrogation, threats of
business closure , or in any other manner, with respect to
their exercise of rights which Section 7 of the statute
guarantees.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post, within its Upland, California, warehouse, copies
of the attached notice marked "Appendix," and comply
with the commitments set forth therein.2 Copies of the
notice, on forms provided by the Regional Director for
Region 31 , as the Board's agent, shall be posted, immedi-
ately upon their receipt, after being duly signed by
Respondent's representative. When posted, they shall
remain posted, 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 these notices are not
altered, defaced, or covered by^any other materials.
(b) File with the Regional Director for Region 31, as the
Board's agent, within 20 days from the date of this Order, a
written statement setting forth the steps which Respondent
has taken to comply herewith.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 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.
2 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
83
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing, during which all parties were given an
opportunity to present evidence and argument, it has been
determined that we violated the law by committing certain
unfair labor practices. In order to remedy such conduct, we
are being required to post this notice. We intend to comply
with this requirement, and to abide by the following
commitments:
The National Labor Relations Act gives all employees
rights to engage in self-organization; to form, join, or help
unions; to bargain collectively through representatives of
their own free choice; to act together for collective
bargaining or other mutual aid or protection; and to
refrain from doing any or all of these things. We will not
do anything that interferes with these rights.
WE WILL NOT question our employees regarding
their union sympathies or threaten to close our business
should our employees become unionized.
All of our employees are free to become or remain
members of any labor organization, or to refrain from such
membership, unless these rights are hereafter modified or
limited, pursuant to a collective-bargaining contract
negotiated and signed in conformity with the proviso set
forth within Section 8(a)(3) of the National Labor
Relations Act, as amended.
BEN HUR PRODUCE
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted 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, Federal Building, Room
12100, 11000 Wilshire Boulevard, Los Angeles, California
90024, Telephone 824-7357.