Broughton's Farm Dairy, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1946

68 N.L.R.B. 677 (N.L.R.B. 1946)

In the Matter of BROUGHTON'S FARM DAIRY, INC. and DAIRY WORKERS
DIVISION OF UNITED RETAIL, WHOLESALE & DEPARTMENT STORE
EMPLOYEES, C. I. O.
Case No. 9-C-2079.-Decided June 17, 1946
DECISION
AND
ORDER
On January 14, 1946, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the respondent filed exceptions to the Intermediate
Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermediate
Report, the respondent's exceptions and brief, and the entire record in
the case, and, to the extent consistent with the Decision and Order here-
in, hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner,' and finds merit in the respondent's exceptions.
1. We agree with the Trial Examiner that the respondent's discharge
of Richard W. Smith was discriminatory. In so agreeing, however, we
do not rely on the Trial Examiner's finding that Robert Broughton
told Raymond H. Woyburn a few days after Smith's discharge that he
understood that Smith and his wife were trying to forrq a union. In
our opinion , Woodburn's testimony, upon which the Trial Examiner
based the finding, does not clearly establish whether Broughton referred
to Smith and his wife or to the employees in the plant generally.
' The Trial Examiner found that the respondent is engaged in commerce within the meaning
of the National Labor Relations Act, and, also, that it admits that it is so engaged We note
that the second part of the Trial Examiner's finding is in error The respon,'ent's admission
covered only certain stipulated facts concerning its purchases and sales . These facts are set
forth in the Intermediate Report under the section entitled "The business of the respondent."
On the basis of the stipulated facts, we agree with and adopt the Trial Examiner ' s finding
that the respondent is engaged in commerce within the meaning of the Act.
68 N L. R B., No. 95.
677
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner found that the respondent discriminatorily
discharged Carl L. Rose and Raymond H. Woodburn. Prior to their
discharge, they, together with Clyde Scott, constituted the entire force of
non-supervisory employees in the respondent's processing department.
The Trial Examiner found, as do we, that economic reasons forced the
respondent to eliminate two of the three non-supervisory employees in
the department. He found further, however, that Rose and Woodburn
would not have been discharged but for their union activity. With this
second finding we do not agree.
Rose was clearly a logical choice for removal from the department on
grounds of comparative experience and ability, as shown by Inc recoru.
According to the testimony of the respondents supervisors, .bose was
discharged, rather than transferred to other work, because a transfer
would have required "moving another man'"' and because his work was
not satisfactory in certain respects. Rose admitted at the hearing treat
some dirty butter had been produced in the plant and that prior to his
discharge the respondent had charged that this condition was due to
Rose's failure to keep the butter cutter clean. Rose denied that he had
failed properly to clean the cutter and assigned other reasons for the
production of the dirty butter. The record, however, shows that the butter
could not have become dirty for the reason asserted by Rose and that,
upon examination of the butter cutter shortly after his discharge, the
respondent confirmed its contention that the cutter was not clean and
was producing dirty butter. In the light of these circumstances, we find
no substantial evidence that Rose's discharge was discriminatory.
Insofar as the record shows, Woodburn and Scott, the other two non-
supervisory employees in the processing department, were both members
of the Union at the time of Woodburn's discharge. In view of this fact,
and the uncontradicted evidence that the respondent considered Scott to
be the leading employee in the department, we are not convinced that
the respondent's selection of Woodburn instead of Scott for removal
from the department was discriminatory. Nor do we believe that the
respondent's failure to transfer Woodburn to other work was discrimi-
natory in view of his admitted refusal shortly before his discharge to
accept the respondent's offer of transfer to a truck driving job. There is
no showing that the offer was made in bad faith nor that its acceptance
would have substantially impaired Woodburn's employment standing.
i The quotation is from the testimony of Clyde Beardmore, assistant plant superintendent.
It is nowhere made clear in the evidence whether by "moving another man" Beardmore
meant that to transfer Rose it would have been necessary to discharge some other employee,
or simply to re-arrange jobs. That he meant the former is indicated by undisputed testimony
of Dobbins, the plant manager, that after Rose and Woodburn were discharged, the re-
spondent had enough employees to operate its plant.
BROUGHTON 'S FARM DAIRY, INC. 679
Under all the circumstances, we find that Rose and Woodburn were
discharged for reasons unrelated to their union activity, and we shall
accordingly dismiss the complaint as to them.
3. The Trial Examiner found that the respondent dominated and inter-
fered with the formation and administration of the Independent, and
contributed support thereto, in violation of Section 8 (2) of the Act.
This finding is based largely upon a subsidiary finding that William
Yocum, Lloyd Miller, and Curtis Caldwell were supervisory employees
for whose activity on behalf of the Independent the respondent was
responsible. However, the evidence shows that these three men exercised
very limited supervisory authority. Yocum, as "route foreman,"
arranged the working schedules of the other retail route drivers and was
relief driver on their days off. Miller was occasionally assigned a helper
whose work he directed. Caldwell helped direct the two to four em-
ployees who worked with him. Neither Yocum nor Miller had authority
effectively to recommend the hire, discharge, discipline, or change in
status of employees.3 Although there is conflicting testimony by the
respondent's managing officers as to whether Caldwell had such author-
ity, the evidence is clear that he never exercised it and no convincing
showing was made at the hearing that the employees could reasonably
believe that he had such authority. Miller was a member of the Union
prior to the time he became active on behalf of the Independent.
Yocum's reenlistment as a member was sought by the Union after his
promotion to the position of "route foreman."4 Upon the entire record,
we are of the opinion that the evidence does not warrant a finding
that Yocum, Miller, and Caldwell were supervisory employees for whose
activities the respondent was responsible, or that the employees had
just cause to believe that they were representatives of management. We
therefore find, contrary to the Trial Examiner, that the respondent is not
accountable for their activities on behalf of the Independent. In view of
this finding, there is insufficient' evidence, in our opinion, to warrant a
finding of a violation of Section 8 (2) of the Act, and we shall accord-
ingly dismiss that allegation of the complaint.
We agree, however, with the Trial Examiner that by expressing an
open hostility to the Union, while at the same time indicating a preference
for an unaffiliated union of its employees, and by Plant Manager
Dobbins' suggestion to one employee that he join the Independent, the
respondent assisted the Independent and interfered with, restrained,
and coerced its employees, within the meaning of Section 8 (1) of the
Act. In order to effectuate the policies of the Act, we shall order the
8 We do not consider the fact that Miller at one time obtained the removal of a helper
assigned to him by threatening to quit unless the helper were removed, to be evidence that he
possessed authority to recommend hire or discharge.
4 Yocum had joined and withdrawn from the Union prior to his promotion.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent to withdraw or withhold recognition of the Independent until
and unless it shall have been certified by the Board as the collective bar-
gaining representative of the employees.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent, Broughton's Farm Dairy, Inc.,
Marietta, Ohio, and its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in Dairy Workers Division of United
Retail, Wholesale & Department Store Employees, affiliated with the
Congress of Industrial Organizations, or any other labor organization of
its employees, by discharging any of its employees, or by discriminating
in any other manner in regard to their hire and tenure of employment,
or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Dairy Workers Division of United
Retail, Wholesale & Department Store Employees, affiliated with the
Congress of Industrial Organizations, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities, for the purposes of collective bar-
gaining, or other mutual aid or protection, as guaranteed in Section 7
of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Richard W. Smith immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice to his
seniority or other rights and privileges ;
(b) Make whole Richard W. Smith for any loss of pay he has
suffered by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to the amount that he nor-
mally would have earned as wages during the period from the date of
his discriminatory discharge to the date of the respondent's offer of
reinstatement, less his net earnings during said period ;
(c) Withdraw or withhold all recognition from the Independent
Dairy Workers of America as representative of any of its employees
for the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or conditions
of employment, unless and until said Independent Dairy Workers of
America shall have been certified as such representative by the Board;
BROUGHTON'S FARM DAIRY, INC. 681
(d) Post at its plants at Marietta, Ohio, and Parkersburg, West
Virginia, copies of the notice attached hereto, marked "Appendix A."
Copies of said notice, to be furnished by the Regional Office of the Ninth
Region, shall, after being duly signed by the respondent's representative,
be posted by the respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all 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 the Ninth Region, in writing,
within ten (10) days from the date of this Order, what steps the respon-
dent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed , insofar as it alleges that the respondent discharged Raymond
H. Woodburn and Carl L. Rose in violation of Section 8 (3) of the
Act and that the respondent has engaged in unfair labor practices within
the meaning of Section 8 (2) of the Act.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Dairy Workers Division
of United Retail, Wholesale and Department Store Employees,
C. I. 0., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination.
RICHARD W. SMITH
We will withdraw or withhold all recognition from the Inde-
pendent Dairy Workers of America as representative of any of
our employees for the purpose of dealing with us concerning griev-
ances, labor disputes , wages, rates of pay, hours of employment, or
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of employment, unless and until the said Independent
Dairy Workers shall have been certified as such representative by
the National Labor Relations Board.
All our employees are free to become or remain members of the above-
named union or any other labor organization. We will not discriminate
in regard to hire or tenure of employment or any term or condition
of employment against any employee because of membership in or activity
on behalf of any such labor organization.
Employer
By ....................................
(Representative ) (Title)
Dated ....................
NoTE-Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement upon
application in accordance with the Selective Service Act after discharge
from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. James A. Shaw, for the Board.
Heinlein, James & Jones, by Messrs Thomas J Jones and David H James, of
Bridgeport, Ohio, for the respondent.
Mr. Earl W. Hall, of Parkersburg , W. Va., and Mr A. L Carson, of Columbus,
Ohio, for the Union.
Mr Lloyd Miller, of Marietta, Ohio, for the Independent.
STATEMENT OF THE CASE
Upon a second amended charge duly filed by Dairy Workers Division of United
Retail, Wholesale & Department Store Employees , C. I. 0., herein called the Union,
the National Labor Relations Board, herein called the Board, by its Regional
Director for the Ninth Region (Cincinnati, Ohio), issued its complaint dated
February 12, 1945, against Broughton 's Farm Dairy, Inc., Marietta, Ohio, herein
called the respondent, alleging that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce , within the meaning of Section 8 (1),
(2) and (3) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat . 449, herein called the Act. Copies of the complaint, accompanied by notice
of hearing thereon, were duly served upon the respondent, the Union, and the
Independent Dairy Workers of America, herein called the Independent.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent : (1) from on or about June 1, 1944, and at various times there-
after, disparaged and expressed disapproval of the Union ; interrogated its employees
concerning their union affiliations ; stated to employees that they would receive
preferences if they did not join or assist the Union; urged, persuaded, threatened,
and warned its employees to refrain from assisting , becoming members of, or re-
BROUGHTON'S FARM DAIRY, INC. 683
maining members of, the Union; imposed penalties on union members for minor
and common mistakes for which other employees were not penalized; told employees
that the respondent would sell its equipment and cease operations if any appreciable
number became members of the Union; urged employees to join the Indepen-
dent; (2) on or about September 1, 1944, initiated, formed, sponsored and promoted
the Independent and from that time to date of the complaint the respondent has as-
sisted, dominated, contributed to the support of, and interfered with the administra-
tion of the Independent, (3) discharged Richard W Smith, Raymond H Woodburn,
and Carl L. Rose because of their union and concerted activities; and (4) by these
acts, interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
On February 28, 1945, the respondent filed its answer admitting the allegations
of the complaint with respect to the nature and interstate character of its business,
and the status of the Independent and the Union as labor organizations under the
Act, but denying the allegations of unfair labor practices.
Pursuant to notice, a hearing was held from April 3 to 7, 1945, at Marietta,
Ohio, before the undersigned Trial Examiner, duly designated by the Chief Trial
Examiner. The Board and the respondent were represented by counsel, and the
unions by lay representatives. Full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues was afforded
all parties. At the close of the hearing, counsel for the respondent moved for the
dismissal of the complaint. The undersigned reserved ruling on this motion. The
motion is hereby denied. A motion of counsel for the Board to conform the
pleadings to the proof as to dates and similar matters was granted . At the con-
clusion of the hearing, all parties waived their right to participate in oral argu-
ment before the undersigned. Although the parties were advised that they might
file briefs for the consideration of the undersigned, only the respondent filed a
brief.1
Upon the entire record in the case , and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Broughton's Farm Dairy, Inc., an Ohio corporation with its principal office and
place of business in Marietta, Ohio, is engaged in the purchase, processing and
manufacture of milk products. In addition to its plant at Marietta, it opeiates a
distributing plant at Parkersburg, West Virginia,2 from which it distributes proc-
essed and manufactured products prepared in the Marietta plant. For the six-
month period preceding the hearing, the respondent's total sales amounted to
approximately $400,000, of which 61 percent was made in West Virginia and the
balance in Ohio. During the same period, the respondent purchased raw materials
' Pursuant to a stipulation made at the hearing, the undersigned on May 7, 1945, admitted
in evidence the following documents offered by the respondent: an affidavit dated April 14,
1945, by Marjorie J. Tullius, respondent' s office manager and an admitted supervisory em-
ployee, as respondent's exhibit 6; photostatic copies of the records of milk tests made on or
about April 15 and 17, 1944, by Richard W. Smith, as respondent's exhibit 6 A to 6 J
inclusive; photostatic copies of the records of tests made on April 17, 1944, by Richard W.
Smith and checked by A. L. Savage, Secretary of the Marietta Cooperative Producers' Asso-
ciation, as respondent's exhibit 6 K to 6 M inclusive; and a letter dated April 10, 1945, by
the Ohio State Department of Agriculture showing the weigher, sampler and tester license
numbers issued to certain named individuals, as respondent' s exhibit 7.
2 Both plants of the respondent are involved herein.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
valued at approximately $250,000, of which 81 percent was purchased in Ohio and
the balance in West Virginia. The respondent admits that it is engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Dairy Workers Division of United Retail, Wholesale & Department Store
Employees is a labor organization affiliated with the Congress of Industrial Organ-
izations, admitting to membership employees of the respondent.
Independent Dairy Workers of America, is an unaffiliated labor organization,
admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
Prior to June 19443 there had been no concerted activity among the employees
of the respondent. The evidence reveals that on or about June 1, the Union began
an organizational campaign, and it is apparent from the entire record that within
a few days a substantial percentage of the employees became members of the
Union.4
It is the testimony of Robert Broughton, respondent's general manager, that in
the early part of June he became aware of the fact that respondent's employees
were engaging in union activities, His antipathy for those activities is revealed in
his testimony that "he felt rather hurt that the fellows wouldn't come to [him]
and tell [him] what had been wrong ." His anti-union attitude was brought to the
attention of respondent's employees immediately. He testified that he arranged a
series of meetings, starting in the middle of June and extending into the middle of
July, with the employees of both plants.5 At these meetings, according to Broughton,
he told the employees, in substance, that he had heard of their many complaints
and grievances and that he wanted them to bring such matters to him. He testified
further, that he told the employees that he would like to get these problems settled
without involving a "third party" ;6 and that it was "very possible" that he also
inquired of the employees about the feasibility of establishing "an organization of
their own." The type of organization he had in mind, according to Broughton, was
not a labor organization but one that would take in all the employees, including
the officials of the respondent. He admitted that during one of the meetings at
Parkersburg he told the employees that there would have to be a separate unit for
each of the plants. He also testified that prior to the first meeting held for the
employees at the Marietta plant he summoned individual employees to his office
and questioned them about the same matters later discussed at the meetings.
The record reveals that employees Carl L. Rose, Ralph Goodman and Raymond
H. Woodburn were among the employees individually questioned by Broughton
It is Rose's testimony that soon after the Union began its organization he was told
by L. O. Dobbins, manager of the Marietta plant, to see Broughton in his office
Upon his arrival in the office, he was asked by Broughton if he knew the reason
for the interview and, according to Rose, he replied, "No I don't," and Broughton
3 Unless otherwise designated all dates used herein are in the year 1944.
° The record shows that on two occasions the Union sought recognition from the respondent
and on both occasions its request was refused. The complaint, however, does not charge the
respondent w.th a violation of Section 8 (5) of the Act.
5 The record shows that one of the meetings was requested by members of the Union.
It is apparent from the record that Broughton had reference to the Union when using the
term "third party," and the undersigned so finds.
BROUGHTON'S FARM DAIRY, INC. 685
then informed him, "It's about the third party, the union," Following this Broughton
asked, "Do you think the union would help this place?" Rose, in reply, stated that
he was of the belief that the Union would help the respondent. Broughton then
told Rose that he had heard that if a union came into a plant it would dictate
the plant's purchasing and selling policy. It is Rose's testimony that when he was
about to leave the office, Broughton remarked, "Try to hold them off for a little
while" In his testimony, Broughton admitted discussing the troubles in the plant
\\ ith Rose, but he specifically denied that he asked Rose to hold off the Union
for awhile. Mindful of Broughton's admissions as to subjects discussed at the
meetings, the undersigned is unable to credit Broughton's denial and finds that
Broughton made substantially the statements attributed to him by Rose.
Goodman testified that on or about June 7, while alone with Broughton in his office,
Broughton inquired as to his attitude regarding the Union. Goodman further testified
that, following a discussion which had to do generally with grievances, Broughton
made a remark to the effect that he hoped Goodman would not join the Union.
Broughton stated he could not recall having such a conversation with Goodman
He testified, however, that the respondent's carpenter, a member of the American
Federation of Labor, informed him that Goodman could not help him in his duties
because he was not permitted to work "with a man that belonged to a different
union," and that he did mention the substance of this conversation to Goodman.
It is apparent from Broughton's testimony that he did have a conversation with
Goodman regarding unions For this reason and because Goodman impressed the
undersigned as a trustworthy witness, he credits the testimony of Goodman, and
finds that Broughton made the statements substantially as testified to by Goodman
A day or so after Smith's discharge on June 12, 1944, according to the testimony
of Woodburn, following a request by Broughton to see him in his office, he went
to Broughton's office and found him alone. Woodburn testified that during the
conversation that followed, Broughton advanced several reasons for the discharge
of Richard Smith. Also during the conversation, according to Woodburn, Broughton
made a statement to the effect that he was of the belief that Smith and his wife
iveie trying to form a union in the respondent's plants, and that "he would like
to see the union come in if he could be a member, but he couldn't." Woodburn
also testified that Broughton told him, in substance, that if the Union failed to
get a closed-shop contract with the respondent, the Union would not benefit the
employees, and that the War Labor Board would not grant that type of contract.
The above testimony of Woodburn was not specifically denied by Broughton Con-
sidering the entire testimony of Broughton, and the fact that Woodburn impressed
the undersigned as a credible witness, the undersigned finds that Broughton made
substantially the statements attributed to him by Woodburn.
The record discloses that shortly after the Union started to organize, Dobbins
also expressed his opposition toward it to a number of the employees. According
to the testimony of Woodburn, on or about June 10, while he was loading milk
in the refrigerator, Dobbins came in to him, closed the door and said that he (Dob-
bins) thought that he could get him a little more money but before doing so he
would have to know "which side of the fence [he] was on" Upon requesting an
explanation of this statement, Dobbins answered, "I will put it this way. Were
you at Parkersburg at that meeting the other night?"7 Upon Woodburn's answering
in the affirmative, Dobbins then concluded, "Well, I can't do you any good, then."
Sometime later during the same day, according to Woodburn, "lie [Dobbins] came
back from the office and he said that for me to forget about it, it was too small an
7 ]t is obvious from the record that this reference was to a meeting held by the Union.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization , that there was no union coming in there, and besides, he thought
he would let brother Scott go as he thought he was the instigator of this joining
the union."
Richard Smith testified that during a conversation with Dobbins, which took
place shortly after his discharge while they were alone in the refrigerator, Dobbins
told him that he knew there were union activities in the plant and "he thought he
would fire anyone that joined the union."
According to the testimony of John Burke, an employee in the Marietta plant,
sometime in June during working hours, and in the presence of Woodburn, Dobbins
informed him that "all the men belonging to the C. I. O. Union, their privileges
will be taken away."8 Burke further testified that shortly after Woodburn's dis-
charge, in the presence of Robert McCain and others, Dobbins stated to him that,
"Mr. Woodburn and the C. I. O. organization are not going to control me."9
Dayton Treadway, a driver for the respondent, testified that aloi)g about the
middle of July he was asked by Dobbins if he was a member of the Union, that
in reply he told Dobbins that he did not think it was "any of his business," and
that Dobbins then told him that his membership in the Union was the reason
for a drop in his sales.
Vernon Wilson, an employee of the respondent during the summer of 1944,
testified that on or about September 1, while he was at work in the Marietta plant,
he was asked by Dobbins as to "which side of the fence [hey was on," and upon
his failure to reply to the question, Dobbins told him that he "better get on the
other side ." The record shows that Wilson was a member of the Union at the time.
Other anti -union statements were attributed to Dobbins by former employees
Robert McCain, Jessie Ryan and A. R. Tennant. McCain testified that during a
conversation with Dobbins, Dobbins told him that the Union was not going to do
him any good. McCain replied, "maybe." Dobbins then said, "I know it won't."
Jessie Ryan testified that Dobbins told her that "as long as he was there, there
would be no C. I. O. come in there." It is Tennant's testimony that in the latter
part of October he overheard Dobbins tell certain employees in the Marietta plant
that "there was no God-damned C. I. O. going to run the place up there." Dobbin,
on this occasion also said, that John L. Lewis was a Russian and, "if the boys
there wanted to live under that kind of a doctrine they should go to Russia to live."
In his testimony, Dobbins admitted that he was aware of the organizational
campaign of the Union, and that the organization of the Independent was known
to him only by hearsay. Dobbins made a general denial of the anti-union state-
ments attributed to him by Smith and Tennant, and testified that he did not
remember making the statements attributed to him by Burke, Ryan and McCain.
He admitted, however, that he did make statements to the effect that the Union
and Woodburn were not going to tell him how to run the plant Early in his testi-
mony bobbins stated that he asked Wilson "which side of the fence he was on„"
but later in his testimony he denied questioning employees concerning their union
affiliation . He testified that he did not remember talking to Treadway about the
Union, but that he did state to some of the men that "if the sales fell off it was
probably the C. I. O. trying to put the squeeze on us. He did not remember having
any such conversation with Woodburn as detailed above Dobbins' over-all testi-
mony, in the main, was unconvincing. From his demeanor on the witness stand,
he impressed the undersigned as an unreliable and untrustworthy witness. The
undersigned finds that the many statements attributed to Dobbins were made sub-
" Woodburn's testimony, which is credited by the undersigned, supports Burke's statement
on this point
This statement is supported by the credible testimony of former employee Robert McCain.
BROUGHTON'S FARM DAIRY, INC. 687
stantially as were testified to by Woodburn, Smith, Burke, Wilson, Treadway,
McCain, Ryan, and Tennant, all of whom the undersigned finds to be credible
witnesses.
Anti-union statements and conduct are also attributed to Paul Allen, respondent's
sales manager , by several of the respondent's employees. Simon Stickel, employed
as a driver at the Parkersburg plant, testified that sometime in June he was
requested by Allen to come into his office where he was asked by Allen for
information about the Union, that he refused to give Allen any information, and
that following such refusal, Allen inquired of him if he had ever thought of a com-
pany union. The record shows that Allen knew that Stickel was the president of the
Union at the time.
It is the testimony of Thurman Balderson, Senior, that in the latter part of
August he had a conversation with Allen during which Allen told him, in substance,
that if the Union "went ahead" and organized respondent's employees, the respondent
would have to get rid of its routes and trucks and as a result the drivers would lose
their employment.
In his testimony, Allen admitted that Stickel's testimony was substantially correct,
except that he did not recall a conversation regarding a company union . Allen,
however, denied telling Balderson that the respondent would sell its trucks if the
employees continued to organize, but admitted having a conversation with him
regarding the sale of the routes and the trucks. By way of explanation, he testified
that a number of respondent's drivers were desirous of operating their routes pri-
vately and that that was the only reason -he broached the subject to Balderson.
The record shows that respondent's witnesses, Pat Wright and William Alkire, were
the only drivers, other than Balderson, to testify regarding the sale of respondent's
equipment. Alkire testified that his conversation with Allen on this subject occurred
subsequent to the Union's organizational drive. His direct examination on this point
is as follows:
Q Did any [member of management ) ever tell you that the company would
sell its equipment and cease operations if any appreciable number of the
employees became members of the C. I. 0.?
A. No, not exactly.
Q What do you mean , not exactly?
A. Well, there was one time that Mr. Allen said that he would sell me the
truck, but it wasn't - if it was on account of the C. I. 0., he never stated
that to me, that it was on account of the C. I. 0.
Allen testified that he thought that Alkire was one of the drivers he talked to about
buying the trucks and routes.
Pat Wright testified that certain members of the Union told him that if he refused
to join the Union, he would lose his job, that following this threat he went to Allen
and tried to buy his truck and route but that Allen was only willing to sell him
another truck which he did not want , and that following his refusal he was told
by Allen that he (Allen) did not see why Wright would lose his job if he did join
the Union. Allen was not specifically questioned concerning Wright's testimony
In view of Alkire's and Wright' s testimony, Balderson's testimony, which is
supported in some respects by the testimony of Allen, and because the undersigned
considers Balderson a more credible witness than Allen, the undersigned credits
the testimony of Balderson and finds that Allen made substantially the statements
attributed to him by Balderson.
In the latter part of June, according to Gilbert Ewing, while he was alone with
Broughton in his office , Broughton asked him what he thought about going to
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parkersburg as assistant to Allen. Broughton stated that it would be a much better
job than his present one, and that Allen would discuss the matter further with him.
It is also Ewing's testimony that following the making of the offer, Broughton asked
him "how we had been getting along about this other organization,"10 and that he
replied that he "had not made much headway with the boys." Ewing testified that on
the same day he met Allen and a discussion involving Broughton's offer followed.
Allen pointed out, during the discussion, that his (Ewing's) contacts with the em-
ployees at Parkersburg were far more favorable than his own, and that "they would
do things for [him] that they wouldn't for [Allen]." Ewing testified further, that
Allen then said that he expected Ewing "to break up the union which has just
been started," It is Ewing's testimony that he then told Allen that he did not want
the job "with strings tied on it like that " Allen's testimony as to this incident is as
follows
Mr. Ewing told me he would like to get off the trailer and I asked Mr.
Ewing if he would be interested in working at Parkersburg as route man and
probably assistant He said he would think it over, asked me what it paid. I
told him I didn't now. At a later date, probably the next day or the following,
I asked him if he had any further thought. He said he had He asked me again
what it paid I told him I didn't know I asked him what he thought the job was
worth. He said if he came to Parkersburg he would have to have $75 a week
and as far as I know the matter was dropped.
Broughton testified that he did have a conversation with Ewing regarding the
job as assistant to Allen, and that Ewing's testimony regarding this conversation
with him was substantially correct, except that portion regarding another organi-
zation. As to that, Broughton stated he could not remember talking to Ewing along
those lines It is significant that according to Broughton's testimony, the offer to
Ewing came from him while the testimony of Allen shows that the offer originated
with Allen. It is also significant that the offer leas made shortly after a meeting
called by Broughton during which Broughton made known his desire for the em
ployees to have "an organization of their own." After considering the entire t.sti-
mony of Broughton, Allen and Ewing, and because Ewing impressed the under-
signed as a more credible witness than Broughton and Allen, the undersigned is
convinced and finds that Broughton and Allen made the statements substantially as
testified to by Ewing.
B. Domination of and interference with the formation and administration
of the Independent
The evidence shows that the Union was well entrenched in early June and that
prior to the middle of July it was the only labor organization in the respondent's
plants. As stated hereinbefore, Broughton's antipathy for the Union was con-
veyed to the employees at its inception . It is his own testimony that he "felt
rather hurt that the fellows wouldn't come to [him] and tell [him] what had
been wrong," and that at the meetings held at both plants he asked the employees
if their grievances could not be adjusted without the intervention of a "third
10 The evidence shows that during one of the meetings at Marietta a contract to cover
employer-employee relations was sought of Broughton by the employees. The evidence further
shows that the request was not sponsored by the Union, but rather by a group of employees
who presumably were acting on Broughton's suggestion for "an organization of their own."
The evidence also shows that Broughton encouraged the making of that type of contract, but
no contract of that nature was ever presented to him.
BROUGHTON'S FARM DAIRY, INC 689
party."11 It is clear from his testimony that in place of the "third party" lie
wanted the employees to have "an organization of their own."
An early and forceful attempt on the part of the respondent to discourage mem-
bership in the Union, and at the same time lend impetus to "an organization of
their own," was revealed shortly after Ewing rejected Broughton's offer to be
Allen's assistant, by an announcement on July 7 at a meeting of the Parkersburg
employees called by Broughton that William Yocum, who had been a route driver,
was to be route foreman with headquarters at Parkersburg 12 Yocum thereafter
acted as spearhead at the Parkersburg plant organizational campaign of the
Independent which made its initial appearance in the respondent's plants during the
latter part of July and actually started its drive for membership in August. Lloyd
Miller, who supervises the respondent's garage, acted in a similar capacity at the
Marietta plant.
It is Yocum's testimony that shortly after becoming route foreman he talked
to Lloyd Miller about an independent union because , as he explained, he and Miller
possessed a common hatred for the "C. I. O."13 He later joined the Independent"
and became active immediately in its behalf. Besides his solicitation activities, the
record shows that on the days when meetings of the Independent were scheduled,
Yocum called on the employees at their homes to induce them to attend the
meetings 15
Lloyd Miller, the most active member of the Independent, was elected president
at the first meeting held on September 7.16 He testified that the idea of having
the Independent in the respondent's plants originated with him To give form to
his idea, he openly solicited members for the Independent during working hours17
and made the necessary arrangements for meetings of the Independent It is his
le,,timony that since he had knowledge of the fact that Paul Salyerl5 installed
machinery in plants throughout the State of Ohio and thus was given an oppor-
tunity to observe the manner in which unions functioned , he invited Salyer to the
f,rst meeting so that the members "might have the privilege of asking him a few
questions" along that line. He testified further that "after a round-table discussion
an] questions asked by everyone," Salyer suggested that a committee be sent
to his headquarters at Columbus, Ohio, and that he would make the necessary
arrangements to take the committee through certain milk plants in that area for
the purpose of observing the operations of unions. There is a conflict in the testi-
" The record shows that the respondent discontinued holding meetings with its employees
immediately before the Independent made its appearance in the plants, and the custom was
neier reinstituted after the formation of that union
12 As a route driver Yocum had been paid on a commission basis, he was given a weekly
salary for his new duties.
13 The evidence shows that Yocum joined the Union in June and that he attended two of its
meetings, both of which were held during June. Miller testified that he joined the Union but
remained a member foi a few days only
" Yocum testified that he joined the Independent on September 11. However, the record
shows that he was elected vice-president of the Independent at the September 7 meeting.
is Yocum stated that he made these calls in the respondent's trucks, but explained that it
was done while he was delivering products and answering complaints in the vicinity of the
employees' homes.
30 The Independent held three meetings , all of which were in the month of September.
14 The respondent had no rule governing solicitation.
11 Salyer, employed by a dairy machinery concein , has installed and repaired machinery in
the respondent's plants for several years. Since his work carried him into all sections of the
plants, he was afforded an opportunity to become acquainted with most of respondent's
employees.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony as to whether Salyer offered to pay the expenses of the committee in the
event it accepted his invitation.19
In addition to Miller and Yocum, Dobbins and Curtis Caldwell, who supervises
the respondent's ice cream department, also solicited members for the Independent.
Sometime in August, according to the testimony of employee Burke, Dobbins "told
me that the Independent Union existed and he told me he wanted for us to join
the Independent Union." Although Dobbins denied making this statement to Burke,
for the reasons stated hereinbefore concerning his credibility, the undersigned
rejects his denial. Robert McCain testified that Caldwell asked him to join the
Independent. Caldwell denied talking to McCain about the Independent, but he did
admit that he was a member of the Independent, and that he attended all its
meetings. In view of the fact that Caldwell denied that Salyer attended any of
the Independent's meetings, and because the undersigned was not favorably im-
pressed with Caldwell as a witness, he is unable to give any credence to his
testimony, and finds that he solicited McCain to join the Independent.
The respondent contends that it is not bound by the acts of Miller, Yocum,
and Caldwell for the reason that they are not supervisory employees. The under-
signed finds no merit in this contention. The record shows that Miller had been
employed in the respondent's garage for approximately 5 years, and that his
principal duties related to the maintenance of the respondent's trucks and plant
equipment. It is Miller's testimony that Robert Broughton was his superior,
but there is some evidence to show that he was also under Allen's supervision.
The record further shows that Miller occasionally had one helper and that he
directed the work of that employee 20 Miller also had authority to purchase
ordinary parts for trucks and equipment without first receiving permission from
management. Several employees of the respondent testified that it was their im-
pression that Miller was the foreman of the garage. In addition, Ewing testified
that Allen told him that Miller was supposed to be the foreman at the garage.
Allen denied this testimony. For the reasons stated above, the undersigned credits
Ewing.
William Yocum, at the time of the hearing, had been in the respondent's employ
for 4 years. Prior to July 7, as stated hereinbefore, he worked as a retail route
driver and was paid on a commission basis. On the above-mentioned date it was
announced that he was the route foreman. At that time he was placed on a salary
basis. Yocum's duties as route foreman consisted of arranging the working
schedules for the retail drivers, acting as relief driver, looking after the physical
condition of respondent's equipment, supervising the collections of the drivers,
performing certain clerical duties, and adjusting complaints received from cus-
tomers of the respondent. It is Yocum's testimony that shortly after July 7, pos-
sibly a couple of weeks, he resigned because he did not care for the title of
foreman, and also because it created a certain amount of animosity among the
drivers under his supervision. Allen's testimony is in agreement with Yocum's as
to the approximate time of the resignation.21 There is further agreement between
19 The undersigned finds it unnecessary to resolve this conflict. 'Ihe activities of Salyer are
set forth above for the purpose of showing the activities in behalf of the Independent sponsored
by supervisory employees of the respondent. However, since there is an absence of substantial
evidence to support a finding that the higher management had knowledge of Salyer' s activities,
the undersigned does not attribute such activities to the respondent.
"Miller testified that he requested Allen to remove one of his helpers because of the
insufficient amount of work performed by the helper, and at the time, he told Allen that he
would quit if such request was not followed. The record shows that Allen granted Miller's
request the following day.
21 Allen stated that Yocum gave a written resignation and that he was unable to produce
it at the hearing.
BROUGHTON'S FARM DAIRY, INC. 691
them that the employees were never notified of this resignation . Yocum thereafter
continued performing the functions he had assumed on July 7. It is clear that Yocum
resigned his title only, that this was not communicated to the employees and that
he continued the same duties thereafter which he had performed when he possessed
the title of route foreman.
Curtis Caldwell, who had worked for the respondent for approximately 8 years,
at the time of the hearing was employed in the respondent's ice cream department.
In addition to Caldwell, the respondent employed from two to four persons in that
department. According to Caldwell's testimony, it was his duty to freeze and pack
the ice cream. Although he disclaimed any supervisory authority over the other
employees in the department, he did state that after an employee was broken in by
Dobbins he was supposed "to keep them in line." Robert McCain, a former em-
ployee in that department, testified that he considered Caldwell his "boss," that
Caldwell directed his work as well as the work of other employees, and that he
was never certain whether Caldwell had the authority to discharge him. Although
Robert Broughton asserted that Caldwell had no supervisory authority, Carl
Broughton, the respondent's president, admitted that Caldwell did have the authority
to recommend the hire and discharge of employees under his supervision.
From all the evidence, the undersigned is convinced and finds that the employees
could reasonably believe from Miller's, Yocum's, and Caldwell's duties, and the
other circumstances, that Miller, Yocum, and Caldwell were representatives of
management 22
C. Concluding findings
The undersigned finds that by the above acts and conduct, the respondent has
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in the Act.
Such acts of hostility toward the Union necessarily impressed upon the employees
the futility of seeking representation in an affiliated labor organization, and pro-
vided a favorable environment for the creation of an unaffiliated union not handi-
capped by employer disfavor. Robert Broughton's own testimony shows that
Broughton suggested the formation of an independent union. Both Miller and
Yocum admitted that they were the prominent force in bringing Broughton's
suggestion into reality, and that they held the office of president and vice- president,
respectively, of the Independent. Although their positions were not high in the
management 's supervisory hierarchy, nevertheless their acts were in apparent
concert with those of Robert Broughton, Allen and Dobbins, and hence the re-
spondent must be held chargeable for their conduct 23 For the same reason the
respondent is also responsible for the conduct of Caldwell in behalf of the
Independent.
The undersigned finds that the respondent has dominated and interfered with
the formation and administration of the Independent and has contributed support
thereto, and has thereby interfered with, restrained , and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
D. The discriminatory discharges
1. Richard W. Smith
Richard W. Smith was employed by the respondent in June 1943, and was
discharged on June 12, 1944. He was engaged at the respondent's Marietta plant in
23 Counsel for the Board adduced testimony through Thurman Balderson , Jr., in support of
the 8 ( 1) and 8 (2) allegations The undersigned is of the opinion that his testimony is un-
worthy of belief, and has made no findings based thereon.
72 International Association of Machinists v. N. L. R. B, 311 U. S. 72.
696966--46-45
. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weighing, testing, and sampling milk under the supervision of Dobbins and his
assistant, Beardmore. When the Union commenced its activities in early June,
Smith joined the organization and was thereafter active in its behalf by way of
soliciting members and collecting initiation fees at the plant. During his period
of employment Smith received two raises in pay, one about 3 or 4 months after he
was hired and the other about 3 months after his first raise Dobbins complimented
him on his work, but never criticized him 24
On June 12, 1944, according to Smith, he was told by Dobbins to go into Robert
Broughton's office. Broughton informed him that he had bad news for him, that the
state inspector had requested his removal ; Smith asked if his connection with the
Union was the reason for his discharge, and Broughton replied that it was not.
Smith was paid, and he left. Broughton did not dispute this testimony.
The complaint alleges the discharge of Smith on June 12, 1944, to be discrimina-
tory. The respondent's position is that Smith was discharged because of (1) in-
correct weighing, (2) incorrect testing and the recommendation of State Inspector
Stevens, and (3) spending too much time in the office.25
Smith worked 7 days a week and had a day off occasionally. Generally, it took
from 7 to 7:30 a. in. until about 2 p. in. for him to complete weighing the milk
received from approximately 230 farmers. Smith stated that once in a while he
made errors in weighing After Smith's discharge, Beardmore found his own error
of 100 pounds, according to the credible testimony of former employee, Jessie
Ryan.26 In the spring of 1944, Dobbins told Smith that the farmers were complain-
ing about the weights and that he should be more careful. Smith testified that
he was unaware of any error at that time which could have provoked the com-
plaints. Beardmore also testified concerning weight complaints by the farmers
and stated that he checked weights with Smith, found no errors, and did not know
whether or not it was Smith's fault that gave rise to the complaints. It was usual
for farmers to complain about weights. Allen, whose job it was to adjust the
complaints with the farmers, admitted that it was a case of either taking the
farmers' or the employees' word for it. Allen stated, however, that there was a
considerable increase of complaints during the last 30 days Smith was there and
it "seemed" to be Smith's work "in some cases" that was involved in the complaints
and that Beardmore's work "very seldom" resulted in complaints. Because of
Allen's anti-union animus, and the undersigned's views concerning his credibility
stated above, he finds Allen's testimony in this regard to be unworthy of belief.
Broughton testified that during the month preceding Smith's termination there
were complaints by farmers that the weights were off a few pounds each day for a
series of days, that he did not tell Smith about them, but informed Dobbins. Dobbins
testified that before the discharge, Smith's unsatisfactory work on the weight plat-
form was mentioned several times in his talks with Broughton For reasons already
stated regarding Dobbins' and Broughton's credibility, and in view of Smith's
24 Dobbins testified that he reprimanded Smith for spending time in the office talking to
Mrs Sinith, his wife, who was then employed in the respondent's office. Smith specifically
denied having been reprimanded for this reason by Dobbins or anyone in management. For
the reasons stated above concerning Dobbins' and Smith's credibility, the undersigned credits
Smith
25 Beardmore testified that "quite a long time" before June 12, 1944, he recommended Smith's
discharge because Smith failed in his duties on several occasions to clean up the floors of the
weigh and test rooms before leaving the plant at night. Broughton and not Beardmore, how-
ever, effected Smith's discharge, and Broughton did not at the time of the discharge or at
the hearing offer this as a reason for his action.
2e Beardmore, apparently a satisfactory employee, testified that he did not remember this
incident.
BROUGHTON 'S FARM DAIRY, INC. 693
testimony and the reasons for the conclusions hereinafter discussed in regard to
Smith's discharge, Dobbins' and Broughton's testimony is not credited by the
undersigned.
Farmers' complaints as to tests,27 like weights, were customary, and Beardmore
and Smith both received complaints about their work. In fact, Beardmore conceded
it was common practice for the farmers to complain as to tests. Allen explained
that during the early spring when the cows are turned out to pasture, complaints
regarding butterfat tests increase. A form report of State Inspector Stevens made
April 18, 1944, on Smith's work shows "Satisfactory - yes."28 Dobbins testified that
late during the day Smith was discharged, State Inspector Stevens went through
the plant and made about six tests. He stated that he thought that Beardmore was
working in another room, 29 at the time, and that Smith might have finished his
work and gone for the day. With respect to the same incident, Broughton was
unable to fix the day of Stevens' uninvited and non-routine call, but testified that
it was within a week before Smith's discharge, at which time Stevens recom-
mended to Broughton that a change be made in the department because the work
was not satisfactory, and that the inspector left no written report of the unsatisfac-
tory condition. Smith's credible testimony is that the April 18 report incident
discussed above was the only time he had seen the inspector at the plant. In addition
to the general element of credibility, the undersigned considers Dobbins' and
Broughton's testimony above related unreliable because of their inability to fix the
date of the incident; the non-routine nature and the late hour of the inspector's
alleged call, the fact that no, written report was made; and the fact that on April
18, the inspector made 24 tests, 5 more than there is room for on the form, and
yet his alleged recommendation of such a serious nature in this instance is based
only on about 6 tests. The undersigned, therefore, finds that the State Inspector did
not make the recommendation testified to by Broughton.30
x' The composite milk tests for butterfat content were made regularly the first and fifteenth
of the month and at shorter intervals on special request.
79 The report was introduced by the respondent. It is based on composite milk butterfat
tests of the products of 24 farmers of which Stevens and Smith agree as to 2 and disagree as
to 22, Stevens' position being that Smith's results were low as to 1, and high as to 21
12 tests show a variation of more than 0.1 percent, and according to the instructions appear-
ing on the back of the form, few tests should vary beyond this point. Only 5 tests weie
beyond the permissible variation of 02 percent. (It is thus difficult to understand the basis
of the farmers' complaints on tests.) The report also reflects condition of equipment and
sanitary methods as "good," the next to the highest of the 4 graduations listed. Under
"remarks" appears a notation that "samples were oiled off." The instructions state that this
should not be done. The report cautions that samples are not to be heated to too high a
point and recommends the use of formaldehyde to prevent mold. Smith was never informed
of this report. As stated above, however, the report states the evaluation, satisfactory.
Moreover, based on other exhibits adduced by the respondent, it is significant that on
April 15 and 17, Smith ran tests, some of which were checked by Savage, a representative
of a farmers' organization, on April 17. Of the 24 tests performed by the State Inspector on
April 18, 14 were among those done by Smith and checked by Savage, and the results of
Smith and Savage in each of these 14 are in agreement The State Inspector's report,
however, shows disagreement as to 12 of these 14. Further, as shown by the respondent, the
results of the total of 36 tests performed by the representative of the farmers' organization
on April 17, including the 14 referred to above, are all in agreement with the results arrived
at by Smith.
89 The undersigned notes that on April 18 Beardmore was present and helped Stevens make
some of the tests.
so Counsel for the Board introduced in evidence a letter by the Ohio Department of Agri-
culture which indicates that when a tester's work is not satisfactory it is the department's
policy to revoke his license and thus prevent him from working in any plant. If any weight
were given to this letter, it would tend to support the above finding. The undersigned has not,
however, in any respect relied upon it in making this finding.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Broughton testified that Smith had spent a considerable amount of time in the
office talking to his wife, who had been an employee of the respondent, and that he
understood that Dobbins had reprimanded Smith for that. Smith was not ques-
tioned as to the amount of time he had spent in the office. As found above, how-
ever , Dobbins had not reprimanded Smith.
In explanation of its dismissal of Smith, the respondent asserts that Smith's
testing was incorrect and that Stevens recommended his dismissal from that job
State Inspector Stevens' report, made about 2 months before the discharge and
which was not communicated to Smith, differs with Smith's findings; Savage's
conclusions show Smith's tests to be perfect. Under these circumstances, the
respondent was faced with an issue of fact as to what the quality of Smith's
work really was The records which the respondent produced indicate that Smith's
work was satisfactory or at least, as is demonstrated by the respondent's failure to
act, that it did not warrant discharge, or even a warning. Moreover, the respon-
dent at that time did not have a ready replacement for Smith and yet discharged
him. As already found, Stevens did not make the recommendation urged by the
respondent to explain its action. The other reasons to explain Smith's discharge
were offered at the hearing for the first time, and no explanation was given to
show why Smith was not given these reasons at the time of his dismissal. In view
of this and the respondent's anti-union attitude shown above, the undersigned finds
that the reasons next discussed are both afterthoughts. The respondent further
asserts as a reason for Smith's discharge that he spent too much time in the
office. It is clear from the record that a few days before Smith's discharge, his
wife was no longer working in the plant Assuming that Smith had spent time
in the office talking with his wife, the cause for his being there was non-existent
at the time of his termination and Broughton knew this when he discharged Smith
and when he offered it as a reason at the hearing Lastly, the respondent asserts
as a reason for Smith's termination that his weighing was incorrect. Smith made
errors in weighing and so did Beardmore. Errors in weighing are not uncommon
and wherever possible they are rectified. The undersigned is of the opinion that
Smith's errors were not as serious as contended by the respondent. As pointed out
above, Smith had been complimented on his work and not criticized and had re-
ceived two raises in pay in the short period of about a year's employment.
A more convincing explanation of Smith's discharge is found in the other factors
present in the case As noted above, Smith was active in the respondent's plant
on behalf of the Union Dobbins had warned him that he would discharge anyone
who joined the Union. According to Woodburn's credible testimony, a day or two
after Smith's discharge Broughton told him that he understood that Mr. and Mrs
Smith were trying to form a union.31 As demonstrated above, the respondent was
opposed to the Union, even to the extent of later establishing a company-dominated
union. Considering the above factors in their proper proportion with the rest
of the record, it becomes abundantly clear and the undersigned finds that but
for Smith's union interest and activity, he would not have been discharged. It is
therefore found that by its discharge of Richard W. Smith on June 12, 1944, and
failure thereafter to reinstate him, the respondent discriminated in regard to his
hire and tenure of employment, thereby discouraging membership in the Union,
and interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed by the Act.
11 Broughton was not questioned on this testimony,
BROUGHTON' S FARM DAIRY, INC. 695
2. Raymond H. Woodburn and Carl L. Rose
Raymond H. Woodburn was hired by the respondent in about April 1940 and was
discharged on August 2, 1944. He started as a route salesman and thereafter
worked on almost all the inside jobs in the plant. At the time of his discharge
he was employed in the Grade B or processing department, which produced ice
cream mix, ice cream, condensed milk, butter, sweet cream, cottage cheese, and
sherbert stock In addition to Woodburn, the department was manned by Clyde
Scott and Carl L. Rose and supervised by Beardmore and Dobbins. Woodburn
worked at butter during Scott's weekly day off and helped Scott with the butter
during his free time the rest of the week.
Carl L. Rose was employed by the respondent in April 1943 and discharged with
Woodburn on August 2, 1944. He had worked in the bottling room, on the con-
veyor, and had engaged in washing bottles . At the time of his discharge he was'
employed in the processing department where he helped in the skim milk process,
in the preparation of ice cream mix, and in the cutting of butter. He was also
required to wash cans and equipment.
Both Woodburn and Rose joined the Union during its very early stages of
organization ; both were active on behalf of the Union, Rose becoming its sergeant-
at-arms and Woodburn its treasurer. Woodburn also became a member of its
contract negotiating committee. Scott, too, at this time aided the Union.
On August 2, 1944, at about 4 30 p. m. as Rose and Woodburn were about
to punch their time clocks and leave for the day, without any prior warning or
indication from management, Dobbins handed them an envelope and said, "Here's
an extended vacation." By the time Woodburn and Scott got the envelopes opened
to find that they contained checks and slips showing their drawings and deductions,
Dobbins was already gone. About 2 or 3 weeks later, they received their separa-
tion slips which showed the reason for the termination of each to be lack of work.
The complaint alleges the discharges of Woodburn and Rose to be in violation
of the Act. The respondent's position is that Woodburn and Rose were discharged
for lack of work caused by the cessation of the processing of butter.32
There is no doubt that the respondent abandoned its butter processing for eco-
nomic reasons. The next question is, did the discharge of Woodburn and Rose
flow from the cessation of butter operations or from some other cause. It is clear
that the positions held by Rose and Woodburn in the processing department were
not filled. Beardmore, however, admitted that both Rose and Woodburn could have
been transferred to other jobs by moving other men around. Moreover, Broughton
admitted that there had been labor turn-over during that period. Accordingly, the
undersigned finds that Woodburn and Rose were not discharged as a consequence
of the shutdown of the butter operations.
However, the respondent, apparently in explanation of its failure to effect trans-
fers for Woodburn and Rose on August 2, points to the fact that Woodburn had
been offered other employment prior to his discharge , and asserts that Rose's work
was not satisfactory.
As already related, a day or so after Smith's discharge on June 12, 1944, Robert
Broughton told Woodburn that he understood that Smith was trying to form a
union and that he was opposed to it About a week later Dobbins asked Woodburn
if he would take the job that Smith had held. Approximately in mid-July Broughton
offered Woodburn a truck driving job. Woodburn declined both jobs . The very
32 An additional reason was offered by Broughton concerning Rose's work. It is discussed
later in this report.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances, however, under which Woodburn was offered Smith's former job,
particularly Broughton's earlier statement and the offer of the position of a fellow
union leader who was discriminatorily discharged, negatives whatever value re-
spondent's explanation might have otherwise had. The effect of the offer of the
truck driving job also loses significance when viewed with the respondent's
knowledge, as shown below, that Woodburn was the most active adherent in the
plant and the fact that truck driving would have had a limiting effect on his
activities.
On the other hand, in addition to the hostility expressed by the respondent
toward the Union generally and toward Woodburn particularly, Ryan's credible
testimony shows that shortly before July 7 Dobbins stated that Woodburn "thinks
he is going to bring the Union in, but he won't as long as I am here "33 As already
found and as Dobbins admitted, shortly after Woodburn's discharge, Dobbins
stated that Woodburn and the Union were not going to control him. Dobbins
admitted also that Woodburn did most of the talking on behalf of the Union
at the plant and that he was, quoting Dobbins, "a ringleader." The undersigned,
therefore, finds that but for Woodburn's union activities he would not have been
discharged.
In addition, butter processing was Scott's and not Woodburn's principal function.
Scott, however, remained in the respondent's employ. Before Woodburn's discharge,
Scott had indicated his willingness to abandon the Union when at one of the
meetings Broughton held with his employees, during which he manifested his
opposition to the Union as related above, Scott remained after the other men left
and talked to Broughton. Scott told him that, to quote Broughton, "he thought we
could iron out a lot of our troubles in the plant." Scott also suggested another
meeting with the men, and another meeting was held. Thereafter, Scott made the
arrangements for the first meeting of the Independent and during that meeting
became treasurer of the organization. In view of the facts that Scott was not
discharged although the cessation of butter operations removed Scott's major and
only Woodburn's minor functions, and Scott had shown his willingness to abandon
the Union, while Woodburn had actively aided the Union, the undersigned finds
that but for Woodburn's union activities he would not have been discharged.
Concerning Rose's discharge, Robert Broughton stated "there was quite a de-
crease in the amount of work in the department at that time since the butter
had been discontinued and the butter he had been cutting had been dirty." Dobbins
testified that about the time of Rose's discharge there had been some difficulty
about dirty butter, that he found that it was caused by a failure to keep the butter
cutter clean;34 that keeping the cutter clean was Rose's duty; and that he spoke
to Rose about it. He stated further that he had on occasion examined the cutter
after Rose had left for the day, and cleaned it himself several times Rose testified
that Dobbins talked to him about dirty butter once, and that he told Dobbins the
dirty butter was being caused by certain other equipment 35 Beardmore testified
that it was not until the day after Rose had left, when he ran the cutter himself,
that he found that the "full cause" of the dirty butter was the unclean cutting
machine. He testified further that he did not recommend Rose's discharge, and
admitted that Rose could have been transferred to another department and done
the work there.
33 For the reasons stated above concerning Dobbins' credibility, the undersigned rejects his
denial of this testimony.
34 Broughton coiroborated Dobbins' testimony in this respect. For the reasons already
expressed concerning Broughton's credibility, his testimony on this subject is not credited.
Si At the hearing the respondent established that the explanation given by Rose to Dobbins
for the dirty butter was not correct.
BROUGHTON'S FARM DAIRY, INC. 697
In view of the undersigned 's opinion that Dobbins was not a reliable witness and
particularly because of the unreasonable aspect of his testimony that he, the
plant manager, performed work of a janitorial nature on several occasions, which
he could have ordered Rose to do the next morning, it is found that Dobbins'
testimony of Rose's neglect of duty is exaggerated. At any rate, Rose's alleged
neglect of duty did not move the respondent to serious action prior to discharge,
although the alleged condition apparently existed for some time Assuming Beard-
more's version to be correct, the respondent was unaware of Rose's alleged neglect
of duty until after his termination, and therefore it could not have been a factor
in the determination of the discharge.
However, while Rose was working as a bottle washer Dobbins commended him
for his work and told him he would get a raise in pay. Thereafter Rose was raised
from $21 to $25 a week. Dobbins testified that it was his custom to praise or
criticize a man when he was worth it, and admitted that he had commended Rose
several times.36 Rose, whose total employment with the respondent was less than
a year and a half, was thereafter again raised in pay and this time to $28 a week.
For the above reasons and because the assertions concerning Rose's work were
raised for the first time at the hearing, the undersigned concludes that they
were afterthoughts
In view of the fact that the respondent knew from Broughton's conversation
with Rose that Rose wati a union protagonist, the respondent, as shown above, was
so actively opposed to the Union, it threatened to discharge anyone who joined
the Union, and its explanation for the discharge fails to stand up under scrutiny,
the undersigned finds that but for Rose's union activity, he would not have been
discharged.
It is therefore found that by its discharge of Raymond H. Woodburn and
Carl L. Rose on August 2, 1944, and failure thereafter to reinstate them, the
respondent discriminated in regard to their hire and tenure of employment, thereby
discouraging membership in the Union, and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
The undersigned has found that the respondent has dominated and interfered
with the formation and administration of the Independent and has contributed
support to it, and that said organization is incapable of representing the respondent's
employees as their representative for the purpose of collective bargaining . In order
to effectuate the policies of the Act and to free the employees of the respondent
1' In view of the above admission , and the undersigned 's opinion concerning Dobbins'
credibility, Dobbins' testimony that there was no other department in which Rose could have
worked, and that Rose's work was not satisfactory in the bottling department, is not
credited.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from such domination and interference , the undersigned will recommend that the
respondent refrain from recognizing the Independent as a representative of any
of its employees for the purpose of dealing with the respondent concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or other conditions
of employment and refuse to recognize the Independent as such representative in
the future.
It has also been found that the respondent discharged Richard W Smith,
Raymond H. Woodburn, and Carl L. Rose, and thereafter refused to reinstate
them, or any of them, for the reason that they joined and assisted a labor
organization and engaged in concerted activities for the purposes of collective
bargaining or other mutual aid or protection. It will, therefore, be recommended
that the respondent offer them immediate and full reinstatement to their former
or substantially equivalent positions. It will be further recommended that the
respondent make them whole for any loss of pay each has suffered by reason of
his discharge, by payment to each of them of a sum of money equal to that
amount which he would normally have earned as wages from the date of his
discharge to the date of his offer of reinstatement less his net carnings37 during
said period.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Dairy Workers Division of United Retail, Wholesale & Department Store
Employees, affiliated with the Congress of Industrial Organizations, and Inde-
pendent Dairy Workers of America are labor organizations within the meaning_..
of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and administration of the
Independent Dairy Workers of America, and contributing support to it, the
respondent has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (2) of the Act.
3 By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section 8 (1) of
the Act.
4 By discriminating in regard to the hire and tenure of employment of Richard
W Smith, Raymond H. Woodburn, and Carl L. Rose, thereby discouraging mem-
bership in Dairy Workers Division of United Retail, Wholesale & Department
Store Employees, affiliated with the Congress of Industrial Organizations, the
respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
a' By "net earnings" is meant earnings less expenses , such as for transportation , room, and
board, incurred by an employee in connection with obtaining work and working elsewhere than
for the respondent , which would not have been incurred but for his unlawful discharge , and the
consequent necessity of his seeking employment elsewhere . See Crossett Lumber Company,
8 N L R . B. 440 Monies received for work performed upon Federal , State, county , municipal,
or other work relief projects shall be considered as, earnings . See Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
BROUGHTON'S FARM DAIRY, INC.
RECOMMENDATIONS
699
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Broughton's Farm Dairy, Inc, Marietta,
Ohio, and its officers, agents, successors and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Dairy Workers Division of United Retail,
Wholesale & Department Store Employees, affiliated with the Congress of Indus-
trial Organizations, or any other labor organization of its employees, by discrimi-
nating in regard to hire or tenure of employment, or any term or condition of
employment ;
(b) Dominating or interfering with the Administration of the Independent
Dairy Workers of America, or with the formation or administration of any other
labor organization of its employees, and from contributing support to the Inde-
pendent Dairy Workers of America, or any other labor organization of its
employees ;
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to
join or assist Dairy Workers Division of United Retail, Wholesale & Department
Store Employees, affiliated with the Congress of Industrial Organizations, or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes of collective
bargaining, or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act:
(a) Offer to Richard W. Smith, Raymond H. Woodburn, and Carl L Rose,
immediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges;
(b) Make whole Richard W. Smith, Raymond H. Woodburn, and Carl L. Rose,
for any loss of pay they have suffered by reason of the respondent's discrimination
against them, in the manner set forth herein under the title "The remedy";
(c) Withhold recognition from and refrain from recognizing Independent Dairy
Workers of America as a representative c1 any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of work.
(d) Post at its plants at Marietta, Ohio, and Parkersburg, West Virginia, copies
of the notice attached hereto marked "Appendix A." Copies of said notice, to be
furnished by the Regional Office of the Ninth Region, shall, after being duly
signed by the respondent's representative, be posted by the respondent immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all 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) File with the Regional Director for the Ninth Region on or before ten (10)
days from the date of the receipt of this Intermediate Report, a report in writing
setting forth in detail the manner and form in which the respondent has complied
with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the date
of the receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
700 DECISIONS OF NATION AL LABOR RELATIONS BOARD
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report of
to any other part of the record or proceeding (including rulings upon all motion,
or objections) as he relies upon together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of excep-
tions and/or brief, the party or counsel for the Board filing the same shall serve
a copy thereof upon each of the other parties and shall file a copy with the
Regional Director. As further provided in said Section 33, should any party desire
permission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days from the date of the order transferring
the case to the Board.
JOSEPH E. GUBBINS,
Trial Examiner
Dated January 14, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to recommendations of a Trial Examiner of the National Labor Rela-
tions Board , and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
We hereby disestablish Independent Dairy Workers of America as the
representative of any of our employees for the purpose of dealing with us
concerning grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment , and we will not recognize it or any
successor thereto for any of the above purposes.
We will not dominate or interfere with the formation or administration of
any labor organization or contribute financial or other support to it
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights or privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination
RICHARD W. SMITH
RAYMOND H. WOODBURN
CARL L. ROSE
We will not in any manner interfere with , restrain , or coerce our employees in
the exercise of their right to self-organization , to form labor organizations, to join
or assist Dairy Workers Division of United Retail, Wholesale and Department
Store Employees , C. I. O., or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection. All our
employees are free to become or remain members of this union , or any other labor
organization . We will not discriminate in regard to hire or tenure of employment
BROUGHTON'S FARM DAIRY, INC. 701
or any term or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
...................... ... .................
Employer.
By ....................... . ...............
(Representative) (Title)
Dated ..............................
NoTS.-Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
1