Betts Baking Co.

National Labor Relations Board - Board DecisionsDec 6, 1965

155 N.L.R.B. 1313 (N.L.R.B. 1965)

BETTS BAKING COMPANY 1313 Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1_949 Washington Boulevard, Detroit Michi- gan, Telephone No. 226-3200, if they have any question concerning this notice or compliance with its provisions. Betts Baking Company and William D. Parkhurst . Case No. 17- CA-2629. December 6,1965 DECISION AND ORDER On September 3, 1965, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exa.miner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dis- missed with respect thereto. Thereafter., the General Counsel filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and Respondent filed cross-exceptions and a supporting brief. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the cross-exceptions, and the briefs, and the entire record in the case, and hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner, with the following addition: The Trial Examiner found it unnecessary to determine whether or not the Respondent violated Section 8 (a) (1) of the Act by instituting a retirement plan just after the union organizational drive began. We do not agree that a resolution of this issue is unnecessary. In mid- September 1964, Respondent became aware that its transport drivers were engaging in organizational activities. In late September, Betts, Respondent's president, asked driver Brown what would be gained if the Union were successful. Brown suggested that the drivers desired it retirement plan. On October 1., such a plan was instituted and shortly thereafter Betts stated to driver Fuller ". . . the boys have their retirement plan, their raises ... that is all I am going to do, that 155 NLRB No. 124. 1314 DECISIONS OF NATIONAL LABOR -RELATIOTS BOARD is it." Although Respondent's office and sales managers testified that a retirement plan had been contemplated for many months, there is no evidence that Respondent had definitely decided to institute such a plan before learning of its employees' union activities. In addition, no general announcement had been made, and Respondent's alleged intentions did not otherwise come to the attention of employees generally before October 1. Accordingly, in all the circumstances of this case, we find that the adoption and announcement of a retire- ment plan on October 1 was arranged by Respondent to dissuade its employees from union activity, and that Respondent thereby violated Section 8(a) (1) of the Act.1 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the -Respondent, Betts Baking Company, Hutchinson, Kansas, its officers, agents, successors, and assigns, shall take the action set. forth in the Trial Examiner's Recommended Order, as so modified : 1. Delete the period at the end of paragraph 1(b) of the Trial Examiner's Recommended Order, substitute therefor a semicolon, and add the following : ... "provided, however, that nothing in this Order Shall be con- strued as requiring the Respondent to vary or abandon any economic benefit which it has heretofore established." 2. Delete the period at the end of the third paragraph of the Appendix attached to the Trial Examiner's Decision, substitute there- for a semicolon and add the following : ... provided, however, that nothing herein requires us to vary or abandon any economic benefit which has heretofore been established. - IT IS FURTHER ORDERED that the complaint, insofar as it alleges unfair labor practices not found herein, be, and it hereby is, dismissed. i Y.L.R.B. v. Exchange Parts Company, 375 U.S. 405. TRIAL EXARIINER'S DECISION STATEMENT OF THE CASE This case, heard before Trial Examiner Frederick U. Reel at Hutchinson, Kansas, on June 23 and 24, 1965, pursuant to a charge filed the preceding March 8 and a -complaint issued May 11, presents questions as to whether Respondent, herein called the Company, interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights, and discharged four of them for activity on behalf of Teamsters Local Union 795, International Brotherhood of Teamsters, Chauffeurs, Warehouse- BETTS BAKING COMPANY 1315 men and Helpers of America, herein called the Union. Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and by counsel for the Company, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company, a Delaware corporation, engaged at Hutchinson, Kansas, in manu- facturing and wholesaling bakery products, annually purchases goods, materials, and services valued in excess of $50,000, from outside the State of Kansas, and is engaged in commerce within the meaning of Section 2(6) and (7) of the. Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The employees involved in this case are transport drivers, whose job was to leave the Company's premises each evening driving a truck loaded with bread, pastry, and other baked goods; deliver the products in the proper preordered amount at various points within-Kansas, loading it into smaller route trucks which were parked at those points; and return in the early morning to the Company's plant with the transport empty save for such returned products as stale items they had picked up from the route trucks or undelivered items which had been erroneously loaded on the transport the preceding day. in mid-September 1964,2 a number of these drivers engaged in orga- nizing efforts and signed union cards on behalf of the Union. General Counsel alleges that the Company responded to this union drive by the several unfair labor practices described below. 1. Interrogation Respondents counsel states in his brief, p. 21: - "As the record reflects that J. D. Hilton and Jerry Betts [sales manager and president of the Company, respectively! openly questioned employees Parkhurst, Fuller, Brown, and Mummey as to whether or not they had signed a union card and whether other employees had signed umon cards, there can be no doubt that the Employer violated 8(a) (1) of the Act." In the light of this concession , which rests on ample undisputed testimony, further detail as to this point would be superfluous and is omitted. 2. Threats of reprisal General Counsel in his brief cites four instances of allegedly unlawful threats of reprisal for union activity, three of them by Howard Van Stock, who is a "transport supervisor" employed by the Company, and whose status as an agent of the Company is at issue here. According to William- Parkhurst, one of the drivers later discharged by the Company, he overheard Van Stock tell one of the drivers in late October 1964, "I hate to see the union come up, because some of the boys are going to lose their jobs." James Fuller, whose alleged constructive discharge is discussed below, testified that in a conversation with Van Stock in late September, the latter told him, anent the Union: "I sure hate to see a thing like this started and there is going to be some boys going up and down the road talking to themselves." Bob Mummey, whose discharge is discussed below, testified that Van Stock told him and other drivers about the end of September that "if this union went through, it was going to be awful rough on the drivers." (This may have been the same conversation that Parkhurst testified occurred in the latter part of October.) Van Stock either admitted or failed to deny the above statements attributed to him, but testified that in telling Mummey "it could be a little rough," he added "due to my experience with the union." Van Stock testified that he related to Miummey adverse experiences Van Stock had had with unions at earlier dates and in other employments. Even assuming that Van Stock so explained his remarks, however, I cannot agree with the contention advanced in the company brief that so explained the statements are more expressions of opinion not violative of Section 8(a) (1). I credit the testimony of Parkhurst, Fuller, and Mummey quoted above, and the language they attribute to 1 General Counsel's motion to correct errors in the transcript was unopposed and is herewith granted. 2 The events in this case occurred between September 1964 and February 1965. All dates in the following narrative refer to that period. 212-809-66-vol. 155-84 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Van Stock leaves no room for doubt that in Van Stock 's view union activity would lead to discharge. Even if Van Stock explained that such had been the fate of union adherents elsewhere , his statement that this would follow at the Company would be an unlawful threat, if the Company is legally responsible for his utterance. Although Van Stock was termed a "transport supervisor," the extent of his super- visory authority was ill-defined. Most of the drivers' time, of course, was spent on the highways, away from any supervision . Apart from some self-serving testimony by General Counsel's witnesses that Van Stock "directed" their work. there is little to show that he met the specific qualifications of "supervisor" as defined in Section 2(l 1). Indeed , the most damaging testimony from the Company standpoint in this regard is that of Van Stock himself, who testified that "I don't have the authority to hire and fire, but I try to get them to do their work properly." The record is clear, however, that Van Stock occupied a status with the Company different from that of the other drivers, and that they could and did regard him as a management spokesman . Not only was he designated "transport supervisor" and the man to whom to bring problems as to improper loading, route problems, and difcul- ties with equipment, but he was also the' conduit through whom the drivers reported their inability to work because of illness. He attended meetings of department heads; he was present at the discharge interviews of Mummey and Parkhurst; and he brought the discharge check to employee Robert Brown. According to Van Stock's testimony, Sales Manager Hilton asked him to report what he could find out about the Union by conversing with the drivers, but Company President Betts later told Van Stock not to make antiunion statements to the employees as the Company "could get into serious trouble over a statement of that effect." Betts gave this order (which Van Stock violated with impunity, a fact known to Betts) after overhearing Van Stock's threat to Mummey. On this record. I have no doubt that the employees could and did regard Van Stock as a spokesman of management, that management itself so regarded him, and that management knew of his unlawful conduct and neither repudiated it nor effectively restrained him. The Company's liability for his conduct is inescapable, even if he is not a "supervisor" under Section 2(11). See N.L.R.B. v. Sera Cusp Covn- pany, 237 F. 2d 521, 523-524 (C.A. 8); N.L.R.B. v. Des Moines Foods, Inc., 296 F. 2d 285,286-288 (C.A. 8). The other "threat of reprisal" to which General Counsel adverts in his brief is testi- fied to by Brown, who stated that in a conversation he had about the Union with Betts and Hilton at the end of September, one of them said to him, "If this came out, and they find out who, there would be new faces in the spring." The testimony stands undenied. I find the threat was made and violated Section 8(a) (1), although the matter is plainly cumulative in view of the foregoing findings as to Van Stock. 3. Promises and grants of benefits According to the testimony of Fuller , expressly corroborated by Hilton, shortly after the union movement began, Hilton gave Fuller a list of drivers which included all those who had signed union cards , and no others, and asked Fuller io ask each of the men on that !is* if he "will accept a $6 raise." Fuller did as he was bade, and reported back to Hilton. About 1 week later Company President Betts observed to Fuller: .. the boys have their retirement plan, have their raises ... that is all I am going to do, that is it .... As far as unions are concerned, I don't need the union to fire any of our boys .... . The Company introduced evidence that the entire wholesale department, consisting of 88 employees of whom only 13 were transport drivers, received wage increases at this time. The Company admits, however, that the transport drivers received a larger increase than the others. This circumstance alone would not establish that the increase to the drivers was prompted by the threat of union organization. But Hilton's asking Fuller to ascertain whether the union adherents would accept a $6 raise, and Betts' statement quoted above, establish that the Company itself regarded the raise as a weapon in its battle against the organizing efforts of the Union. I therefore find that the Company granted the increase for the purpose of interfering with union activity, thereby further violating Section 8 (a) (1) of the Act. N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409. General Counsel alleges and the Company denies that a retirement plan which the Company instituted just after the start of the organizing drive was likewise intended to thwart the employees' exercise of their Section 7 rights. I 'believe it unnecessary to resolve this issue , as disposition thereof would add nothing to the order recom- mended below. BETTS BAKING COMPANY 4. Creating impression of surveillance 1317 General Counsel in his brief cites four episodes, all occurring in late September 1964, in which the Company allegedly created the impression of surveillance of union activity. Company President Betts said to employee Parkhurst, "I have got five guys who say they saw you sign a union card." Van Stock said to Fuller that Van Stock knew "there had been some [union; cards signed," and heard that Fuller had signed a card. Betts and Sales Manager Hilton told Brown that someone had told them Brown signed a card. Finally, Hilton told Mummey that several people had told him they had seen Alummey sign a card and that Mumrney had mailed the cards to the Union. I find that the above statements did not create an impression of surveillance. The record is clear that the Company was openly engaged in widespread unlawful interro- gation of employees with respect to the union activity not only of the employee being questioned but of his fellows. The four episodes just described, in my judgment, would not foster or create an impression of surveillance, as the employees involved would be far more likely to assume that the employer acquired his information by unlawful interrogation rather than by unlawful spying. In any event, as noted below, the Company's conduct shown on this record warrants a broad cease-and-desist order which will encompass surveillance or creating the impression thereof, as well-as other violations of Section 8(a) (1). 5. Encouraging employees to withdraw from. the Union Early in the union campaign employee Fuller had signed employee Latimer's name to a union card. Fuller had Latimer's permission to do so. a fact not generally known at the time. Howard Van Stock, who as found above was a company spokes- man and was so regarded by the employees, told employee Mummey in late Septem- ber or early October that serious trouble could result from this "forgery," and that it could be averted if the union were stopped. Murnmey rejoined that he would try to stop the union to avoid the threatened trouble. The next day Betts, Hilton, and their counsel appeared at Mummiey's house to discuss the "forgery." Mummey volunteered to get the union stopped to avert the "trouble," and asked the lawyer how to go about it. Counsel advised him that he could, if he so desired, seek the return of the cards by applying to the Board's Kansas City office for them. Betts interjected that the Company would appreciate it if Mummey did so. Mummey and a group of other drivers went to Kansas City in mid-October, using their own time for the trip (it will be recalled that they worked at night). They were unsuccessful, and so reported to Betts on their return. He ascertained that they were going to pursue the matter through private counsel in an effort to get their cards back, and then told them to get a steak dinner at Company expense. Thereafter Munnney and several of his fellow drivers sent letters to the Union requesting the return of their cards, and Mummey so advised Betts. Early in November, the Union withdrew a petition for certification it had theretofore filed. The foregoing facts establish company interference in the employees' union affairs to an extent prohibited by Section 8(a) (1). Even if one card had been forged, this would not Justify the Company's efforts in stimulating Mummey to secure the with- drawal of all the cards by threatening "trouble" unless the Union drive was halted. B. The discharges 1. James Fuller Fuller quit his job with the Company on October 31, 1964, under circumstances which General Counsel alleges establish that he was "constructively discharged." The facts immediately surrounding Fuller's termination are not in dispute and may be summarized as follows: A few nights prior to October 31, Fuller and his helper, Parkhurst, arrived at Halstead, Kansas, where their job was to unload a specified amount of merchandise from their transport and load it on to the truck of the Halstead route driver. The latter's truck was parked in a garage overnight; Fuller and Parkhurst were expected to drive it out of the garage, load it, and put it back in the garage. The route truck would not start, so Fuller directed Parkhurst to telephone the route man who came down and started his truck. The next night Fuller and Parkhurst again were unable to start the motor on the route truck. Fuller directed Parkhurst to use the starter to get the truck out of the garage, and they then loaded he truck. They were unable, however, to get the truck back into the garage, left it with about 4 feet extending over the sidewalk, and did not notify the route man. The Halstead police ticketed 1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the truck for a parking violation; the fine was $12.50. The route man advised the Company that he was not going to pay the fine, and Hilton advised Fuller that Fuller would have to pay it. Fuller at first refused, and then said he would pay half the fine. Hilton replied that this was a matter between Fuller and the route man, as the Company was going to hold Fuller responsible. Fuller thereupon quit his job. - Fuller testified that about 2 weeks before this Hilton had reproved him for other, matters, and had indicated that Fuller's job was in jeopardy. This earlier episode,, according to Fuller, contributed to his decision to quit. The record is clear that the company policy was to require drivers to pay their own -traffic fines. General Counsel urges that Fuller was a known union leader, that his termina- tion occurred at the height of the union drive, and that the Company indicated an intention to rid itself of union people. As to these matters, General Counsel is on reasonably firm ground. But General Counsel also urges that the Company "changed the rules" by holding Fuller liable for a traffic ticket issued to the Halstead route driver. This strikes me as farfetched; the party primarily responsible for the ticket is the man who drove the vehicle at the time of the violation, not the innocent owner. Fuller's decision to quit his job rather than pay the fine would not, stand- ing alone , lend any color to the claim of constructive discharge. General Counsel urges that Fuller had been the victim of prior harassment at the hands of Hilton, but Fuller's own testimony falls short of establishing unreasonable action or state- ments by Hilton in this regard. Fuller described his prior interview with Hilton as follows: Q. What was said by you and by Mr. Hilton that day? A. He said he had heard rumors of some threats being made around and r had made them and he said, since that time he said we have had one air line- broken on his transport, one trailer left on, and also one of our transports stopped out here the other night, and I understand you had something to do= with that. And he said, "I understand you had something to do with it and if it continues we will have to let you go." On the basis of the foregoing facts, I find that the General Counsel fell far short of sustaining his burden of proving that Fuller was "constructively -discharged" for union activity. The complaint as to him should be dismissed. 2. Bob Mummey Mummey's union activity was well known to company officials, and he had played a leading role in the effort to withdraw union cards to avoid the "trouble" that he feared might arise over the "forgery." His discharge on January 11 occurred under the following undisputed circumstances: On the night of January 8-9, Mummey was short 30 loaves of French bread when he arrived at his fourth stop, Russell, Kansas. When he reached his last stop on that run, he discovered that the French bread intended for Russell had been loaded at the front of the truck rather than with the rest of the Russell order. (The mistake in loading was not Mummey's, as that job was handled by a separate depart- ment.) As was customary in such circumstances, Mummey brought the undelivered bread back to Hutchinson on the transport. The bread was later taken to Russell by another employee. At 5 a.m. on Monday morning, January 11, when Mummey returned from his night's run, he had a conversation with Sales Supervisor Warren Wintamute about a. shortage that had occurred at Great Bend, Kansas, the preceding week. Wintamute testified that Mummey had handled that matter correctly. Wintamute then asked Mummey about the French bread at Russell, which another man had had to deliver there, and told Mummey that he (Wintamute) "should have called you to take the French bread to Russell," a distance of over 100 miles (over 200 miles round trip). According to Mummey, whose testimony -Wintamute in general corroborated: "I told him that if the truck would have been loaded correctly, that the oversight and mistake shortage wouldn't have been made, and that I didn't feel that I should have taken it back. And that is what it had to be, I didn't think that much of my job to stay up all night and go do that the next day." Wintamute reported the conversation to Hilton later that day. That evening at Van Stock's request, Mummey went to the office where he was confronted by Hil- ton, Wintamute, and Van Stock. Mummey recalled the interview, an which Hilton "did most of the talking," as follows: He said, "Bob, I heard something I don't like to hear very well." He said, "I hear that you don't think too much of your job. Your job doesn't mean much BETTS BAKING COMPANY 1319 to you." I said, "Well, if that is what you- are -getting at, yes." I said, "I figure that if I have to work all day and all night or-have to go out and make good mistakes for other people, my job doesn't mean that much to me," and I did say that, and he said, "Well, I hate to do it, but if that is the-way you feel about your job, we will just have to let you go.'' Prior to Mummey's discharge Hilton had discharged only three drivers in 4 years as sales manager. The causes of the discharges had been using profanity directed at Hilton and Betts, threatening to leave a truck out at night, and having a belligerent attitude. Mummey's testimony on cross-examination as to company policy with respect to mistakes in deliveries was uncontradicted. He testified: Q. Wasn't it the policy, as far as you know, if a driver of the company found there had been a -mistake in the delivery, he took care of it himself? A. Sometimes he didn't. I had made some corrections myself and there have been a lot of them that I hadn't, too. Mistakes were nothing ... unusual- There was somebody that had mistakes every day, and I mean some of the drivers would take them themselves and some of them they didn't. There was no policy rule either way on it. If a person made a mistake, sometimes you took care of it yourself, but there was no policy rule that I know of. Q. Well, did they have someone employed there to deliver these small mis- takes that had been made? Who took care of them? A. Most generally if a driver didn't take care of it himself, why, they had a supervisor or somebody going that way, and most generally, they would take care of them themselves. They had somebody going around. They have two or three guys around there that just-I don't know what kind of a job they would have. Q. What made you make a statement that this was a normal thing that ,occurred routinely? Why did you make such a statement to Mr. Wintamute? A. That is just the way I felt, that I didn't figure this mistake should neces- sarily be mine, and it was considered a hundred miles out there and a hundred miles back, and that is quite a little ways after being up driving all night and unloading the whole semi-trailer full of bread, and I just didn't figure I should have to do that after being up all night, driving another 200 miles. On these facts I find that the real reason for Mummer= s discharge was his union activity, and that the Company seized on his remark to Wintamute as a pretext for getting rid of him. It will be recalled that Van Stock had stated the union activity would lead to discharge, and that Hilton predicted that the union activity would lead to "new faces in the spring." The Company had by no means forgotten the union campaign with the November withdrawal of the petition for certification; Brown's testimony that Betts interrogated him about the Union in mid-January stands undenied and is credited. To be sure, Mummey had "cooperated" in the ,attempted withdrawal of cards, but this was plainly because of the "forgery" threat as the Company was aware. In short, we have here ample evidence of union animus and of awareness of union activity. This does not conclude the case, for Mum- mey's union activity gave him no immunity from discharge for cause, and the "cause" need not be "good" cause but any reason (or even "no reason at all") other than union activity. But the Company, did not discharge employees for "no reason at all"; it claims to have discharged Mummey for his statement to Winta- mute, later repeated to Hilton. If the Company really discharged Mummey for that statement, the fact that the Board, or "a reasonably prudent man" or any other real or imaginary entity, would not have invoked that penalty does not warrant a finding against the Company. But in determining whether the Company really discharged Mum:ney for that statement, it is fair to weigh all the facts, including not only the union animus of the Company but the seriousness of the offense, for if the offense be minor, it is reasonable to infer that the severity of the penalty had its source in some conduct beyond the offense. Here t're "offense" was a statement, made at 5 a.m. on a January morning by a driver who had driven all night, that he did not think his job should entail driving 200 additional miles to m ake up for someone else's mistake. The whole discussion was academic, as the matter had been taken care of before this conversation and indeed had been disposed of in the way such matters frequently were handled. At worst, Mummey was stating that he would refuse in the future to make such a trip. Surely an employer not searching for an excuse to fire Mummey would have waited until he actually did refuse to carry out such an order before fi aing him, particularly as Mummey had obeyed similar orders in the past.. I cannot believe that I am substituting my judgment for that of the 1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer when I say, as did the court in E. Anthony & Sons, Inc. v. N.L.R.B., 163 F. 2d 22, 26-27 (C.A.D.C.), that the employer's action was "not natural." It fol- lows as in the Anthony case, that the real reason was not that given by the Company but was the union activity in which it knew the employee had engaged and to which it was deeply hostile to the point of threatening that "new faces" would appear in the spring. I therefore find Mummey's discharge violative of Section 8(a)(3) and (1). 3. Robert Brown Brown, whose open support of the Union was well known to the Company, was discharged on February 5 under the following circumstances: When Brown returned to the plant about 4:30 or 5 that morning following his all-night trip, he backed his transport into the loading dock. This maneuver was rendered more difficult than usual by the fact that Sales Manager Hilton's car was parked close to the spot where Brown had to park his transport. (Hilton admitted that the car was not in its usual parking stall.) As Brown observed, "after a guy works all night, it's an inconvenience to weave in and out of that lot between cars." Another driver, one Potter, was on the ground giving Brown hand signals to enable him to execute the parking safely, and with Potter's help Brown was in the process of "making it" on his second attempt. In the course of the parking operation, Brown observed to Potter (according to Brown's testimony) : "if a guy should hit that buckskin son-of-a-bitch he better be ready to quit because he'd sure as hell would get fired ." Hilton at that very moment had emerged from the building behind Brown and overheard the remark. (According to Hilton, Brown said, If I was getting reading to quit this damn job, I would take a hunk of that," adding the same expletive which Hilton knew referred to his car.) Hilton testified that he imme- diately said to Brown: "If that is the way you feel about it, I will take care of it for you. Come on in this morning and get your check." Hilton's testimony continues: I went over in front of the transport, which by then Bob had gotten in the truck and sat down and started backing it in, and I went over to [Potter] and I said, "Did you hear what Bob said," and he said, "I didn't hear anything, the motor was roaring, I didn't hear anything, what is going on?" I said, "Why didn't you move my car, why didn't you get up there and move it." "I was helping Bob back in, we were getting it all right." I went over and stood by the car 15, 20 minutes. I stood by the car a few minutes. He didn't say anything more. He got it in there and didn't scratch it. And I waited a half a minute, 30 seconds, and I said, "Paul [another super- visor], let's go get a cup of coffee." I was pretty sore, because of what Bob said. Q. Why were you sore? Mr. BRUCKER: Objection, we are going to the state of mind. I don't think it is admissible here. Talc, EXAMINER: I will let him answer it. A. Well, I knew Bob's attitude, and what had been going on previous to this. I just figured that was enough, and besides that, I couldn't see-Bob to me, as far as I was concerned, he was directing it to me, because that was my car he was directing it to. - Q. [By Mr. HAYNES.] Did you understand it to be directed to you? A. No, he said the car, he didn't call me an S.O.B., but nevertheless, if you are in the service you salute the uniform, not the man in it. Q. Was Brown a good worker? A. Bob Brown was a good worker. Q. Did you like him? A. No, sir, I didn't. Q. Do you think you acted a little bit rash? A. I thought it over, I expect that is right, it was a little rash. Q. But you were admittedly angry? A. Yes, I was. Hilton's reference in the above testimony to "what had been going on previous to this" is somewhat ambiguous; it could refer to the union activity or to certain dam- age which Brown had caused to a company tire and to a customer' s door, two episodes which occurred the preceding summer or fail. What I have said above in Mummey's case is equally applicable to Brown's. The Company's explanation for the discharge is that Hilton acted rashly out of personal dislike of Brown. Of course, an employer may lawfully discharge a man BETTS BAKING COMPANY 1321 for no more reason than that: it is a truism that a man may lawfully be discharged for no. reason at all. Our task is not to render moral judgment on Hilton, but only to assess his motive, and describing his act as irrational and far in excess of the provocation is not tantamount to calling it illegal. On the other hand, we would make a mockery of the statue if in every discharge case we sustained a defense based on the employer's assertion that he si-npiy did not like the discharged employee. In the instant case the Company showed that it discharged a man for profanity directed personally at Hilton, and Betts, but the evidence also establishes that Brown's expletive and other profanity was commonly heard about the premises. Hence we can draw no conclusion favorable to either side based on past practice at the plant: But when a supervisor, who is openly hostile to the Union, and has predicted that the union drive will lead to "nev., faces in the spring," discharges a known union adherent under circumstances such as these, it is a fair inference that the employee's union activity contributed to the discharge, and that the trivial ep= sode would have provoked a lesser response or none at all, but for the union activity. Cf. N.L.R.B. v. Electric Steam Radiator Corporation, a subsidiary of Landers, Frary and Clark, 321 F. 2d 733, 738- (C.A. 6); N.L.R.B. v. Great Eastern Color Litho- graphic Corp., 309 F. 2d 352, 355 (C. A. 2), cert. denied 373 U.S. 950; Local No. 152, of /w International Brotherhood of Teamsters, Caau, ears, Warehousemen and Help- ers of America (American Compressed Steel Corporation) v. N.L.R.B., 343 F. 2d 307, 308-309 ((C.A.D.C.). I therefore find that the Company violated Section 8(a) (3) and (1) in discharging Brown. 4. William Parkhurst Parkhurst was discharged the day after Brown, February 6, allegedly for a delib- erate failure to perform his job properly the preceding night. On that night Park- hurst had departed with a load of bread and pastry for his regular ran, which embraced eight stops. The employees who loaded the transport prior to its depar- ture were supposed to load it in such a way that the pastry and bread for the first stop would be at the back of the transport, that for the second stop placed next to the back, and so on-until the bread and pastry for the last stop, which should have been at the front of the transport. On many occasions, however, the pastry was all loaded at the back of the transport, to the great irritation of the drivers, who would be greatly delayed on their run by the need of separating out the proper amount of pastry to satisfy the precise order at each place. On the night in question Parkhurst found at his first stop that the pastry was at the back of the transport. He therefore left all that pastry at the first stop. (Later he found that one pastry item, that for the last stop, had been properly packed in the front of the transport.) The result of course, was that the route man at the first stop had an over-supply, but that several later route men had no pastry to deliver.a The dollar value was not high, but the potential loss in customer goodwill was substa .till, as the restaurants, who received the pastry from the route men, needed it for their morning breakfast patrons. When the Company learned what Parkhurst had done, it promptly discharged him. Without detailing the evidence, it suffices to state that the Company regarded his action as a deliberate attempt to focus attention on the drivers' problems with mis- loaded pastry, a conclusion which I also reach upon review of the record. The question is whether his conduct on this occasion was the real reason for his dis- charge, or whether the Company was motivated in significant part by his union activity, of which it was aware. In my view, the discharge of Parkhurst did not violate Section 8 (a) (3) , as I find that the Company was motivated by his actions on the night before his discharge rather than by his union activity. In Parkhurst' s case, I have no doubt that the Company was as ready to seize on a pretext for firing him as it was for firing Brown and Mummey, but this furnishes no protection to conduct which, I find, would have been punished by discharge, even in the absence of union activity. Hence in Park- hurst's case, I find the Company was in fact moved to discharge him by his action of the night before, where as in Brown's and Iummey's cases I find that the state- ments or. which the Company relied were merely pretexts to cloak antiunion motivation. 8 These men telephoned the Company on discovering the shortage, and as the overage had also been reported , the Company was able to arrange with a supervisor at the second stop to effectuate the proper distribution. 1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE REMEDY The Company's open hostility to the exercise of employee rights under the Act calls for a broad cease-and-desist order as well as for an order directing the reinstate- ment of Mummey and Brown with backpay in accordance with the Woolworth and Isis case,4 and the posting of appropriate notices. CONCLUSIONS OF LAW 1. By interrogating employees as to their union membership and that of fellow ,employees, by threatening them with reprisal for union activity, by promising and granting benefits in an effort to dissuade them from union activity, and by fostering, supporting, and rewarding employee efforts to leave the Union, the Company com- mitted unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By discharging employees Bob Mummey and Robert Brown for union member- ship and activity, the Company committed unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 3. The complaint insofar as it alleges violations other than those found above -should be dismissed. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case, pursuant to Section 10(c) of the National Labor Relations Act, -as amended, I recommend that Respondent, Betts Baking Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee because of membership or activity in Teamsters Local Union 795. International Brotherhood ,of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, or any other labor organization. (b) Interrogating employees as to their union membership or activity or that of ,other employees, threatening reprisals against employees for union membership or activity, promising or granting benefits to employees for the purpose of dissuading them from supporting a union, and fostering , supporting, and rewarding employee defection from a union. (c) In any other manner interfering with, restraining, or coercing any employee in the exercise of his right to join or assist the above-named or any other labor -organization. 2. Take the following affirmative action which I find will effectuate the policies ,of the Act: (a) Offer to reinstate Bob Mummey and Robert Brown to their former or sub- stantially equivalent positions, without prejudice to the seniority or other rights and privileges, and make them whole in the manner described in the portion of the "Trial Examiner's Decision entitled "The Remedy" for any loss of earnings suffered by reason of the discrimination against them. (b) Notify Bob Mummey and Robert Brown if they are serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms hereof. (d) Post at its plant at Hutchinson, Kansas, copies of the attached notice marked "Appendix." 5 Copies of such notice, to be furnished by the Regional Director for- Region 17, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all 4F. W. Woodworth Company, 90 NLRB 289: Isis Plumbing & Heating Co., 138 NLRB 716. 5In the event that this Order is adopted by the Board, the words, "an Order of" shall be substituted for "a Recommended Order of a Trial Examiner of" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals the words "a Decree of the United States Court of Appeals, Enforcing" shall be inserted immediately preceding "an Order of." WESTERN SAW MANUFACTURERS, INC . 1323 places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for Region 17, in writing, within 20 days from the date of the receipt of this Decision , what steps the Respondent had taken to comply herewith.6 6 In the event that this Order is adopted by the Board , this provision shall be modified to read, "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL offer Bob Mummey and Robert Brown their former jobs and pay them for wages they lost since we discharged them. All our employees have the right to join or assist Teamsters Local Union 795, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Help- ers of America, or any other union. They also have the right not to join or assist any union. WE WILL NOT take or threaten to take any action against them for engaging in union activity, question them as to their union membership or that of their fellow employees, promise or grant benefits to them in an effort to get them not to support a union , interfere in their determination whether to join or remain union members , or in any other manner interfere with, restrain , or coerce them in their exercise of those rights. BETTS BARING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon appli- cation in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. 221-2732. Western Saw Manufacturers, Inc. and Cabinet Makers & Millmen Union Local 721, United Brotherhood of Carpenters & Joiners of America, AFL-CIO. Cases Nos. 31-CA-211 (f ornwriy 21- CA-6109), and 31-CA-21-2 (form.erdy 21-CA-6109-2). Decem- ber 6, 1965 DECISION AND ORDER On August 11, 1965, Trial Examiner David Karasick issued his Decision in the above-entitled proceeding, finding that the Respondent I Subsequent to the hearing , Case No. 31-RC-4 (formerly 21-RC-9186 ) was severed from this consolidated proceeding and remanded to the Regional Director for Region 31 for further processing. On October 8, 19655, the Regional Director set aside the election in Case No. 31-RC-4 (formerly 21-RC-9136 ) on the basis of the Petitioner 's objections. 155 NLRB No. 131.