Greenwood Farms, Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1963

140 N.L.R.B. 649 (N.L.R.B. 1963)

GREENWOOD FARMS, INC. 649
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) Post immediately at its plant at Birmingham, Alabama, copies of the attached
notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional
Director for the Tenth Region, shall, after being duly signed by the Respondent's
authorized representative, be posted by it immediately upon receipt thereof, and be
maintained for 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 cov-
ered by any other material.
(b) Notify the Regional Director for the Tenth Region, in writing, within 20
days from the date of this Recommended Order, what steps the Respondent has
taken to comply herewith.?
'If this Recommended Order is adopted by the Board , the notice shall be amended by
substituting the words "A Decision and Order" for the words "A Recommended Order of
a Trial Examiner." If the Board's Order is enforced by a decree of a United States
Court of Appeals, this notice shall be further amended by substituting for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States
Court of Appeals , Enforcing an Order "
7If this Recommended 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 Relations
Act, we hereby notify our employees that:
WE WILL NOT threaten employees with the closing of the plant or other forms
of reprisals because of their union activities, or in any like or related manner
interfere with, restrain, or coerce our employees in the exercise of the right of
self-organization, to form labor organizations, to join or assist International
Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Help-
ers, AFL-CIO, Local 583, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any
and all such activities.
All our employees are free to become or remain or to refrain from becoming
or remaining members of International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local 583, or any other labor
organization.
BIRMINGHAM FABRICATING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta 23, Georgia, Telephone
No. Trinity 6-3311, Extension 5357, if they have any question concerning this notice
or compliance with its provisions.
Greenwood Farms, Inc. and Harry Miller. Ca.se No. 2-CA-8502.
January 17, 1963
DECISION AND ORDER
On October 18, 1962, Trial Examiner Rosanna A. Blake issued her
Intermediate Report in the above-entitled proceeding, finding that the
140 NLRB No. 66.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Interme-
diate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.'
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications : 2
(1) The following paragraph shall be substituted for paragraph
1(c) of the Recommended Order: I
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
join or assist any labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted activities
for the purpose of mutual aid or protection as guaranteed in Section 7
of the Act, or to refrain from any and all such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as authorized by Section 8 (a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
(2) The following paragraph shall be inserted between the second
and third paragraphs in the notice :
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
' Mindful of contract provisions dealing with grievance and arbitration and also of
the fact that President Marrow and Manager Elmes met with Miller and two union rep-
resentatives on December 16 to discuss Miller's discharge , we believe the policies of the
Act are effectuated by entertaining jurisdiction under circumstances present here How-
ever, we do not adopt the Trial Examiner 's discussion of the matter to the extent in-
consistent with our views in this field as expressed in International Harvester Company
( Indianapolis Works ), 138 NLRB 1923. And see, also, Smith v. Evening News, 371 U S.
195.
Nor do we find it necessary to adopt the Trial Examiner's comments in footnote 28
regarding the Union 's conduct with respect to Miller's discharge.
2 Member Leedom dissents from the inclusion of interest in the backpay obligation for
the reasons stated in the dissent in Isis Plumbing & Heating Co , 138 NLRB 716.
8In view of the nature of the unfair labor practices committed , the commission by
the Respondent of similar and other unfair labor practices may be anticipated We shall
therefore adopt a broad remedial order. Herman Brothers Pet Supply , Inc, et al, 138
NLRB 1087 ; Applied Research, Inc., 138 NLRB 870
GREENWOOD FARMS, INC. 651
organization, to join or assist any labor organization, to bargain
collectively through representatives of their own choosing and to
engage in other concerted activities for the purpose of mutual aid
or protection as guaranteed in Section 7 of the Act, or to refrain
from any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as authorized by Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
(3) The following note shall be added to the bottom of the notice,
immediately below the signature :
NoTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with the Se-
lective Service Act after discharge from the Armed Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by Harry Miller, an individual , on March 7, 1962, the
General Counsel, on April 9, 1962, issued a complaint alleging that Greenwood
Farms , Inc., had engaged in conduct which violated Section 8(a)(1) and (3) and
Section 2 (6) and (7) of the Act In its answer , Greenwood admitted certain allega-
tions of the complaint, such as the commerce allegations , but denied the commission
of any unfair labor practices . Thereafter, pursuant to due notice , a hearing was
held before Trial Examiner Rosanna A . Blake at New York, New York, on May 23.
24, and 31 and June 1 and 6, 1962 . All parties appeared and were represented by
counsel at the hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses , and to present oral argument . Only counsel for the
Respondent filed a brief
Having considered the entire record in the case, the oral argument by counsel for
the General Counsel , the brief filed by counsel for Greenwood, and from my observa-
tion of the witnesses while testifying, I make the following-
FINDINGS OF FACT
I THE BUSINESS OF GREENWOOD AND THE LABOR ORGANIZATION INVOLVED
Greenwood, a New York corporation with its principal office and place of business
in New York City, is engaged in the retail sale and distribution of milk and related
products. During the past year, which is representative of its annual operations.
Greenwood's gross revenue exceeded $500,000 and its out-of-State purchases exceeded
$17,000.
Greenwood is also a member of the Greater New York and Northern New Jersey
Milk Dealers Labor Committee which negotiates collective-bargaining agreements
for its employer-members with various labor organizations including Local 584,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America During the past year, which is a representative period, the emplover-
members of the Committee derived gross incomes from the retail sale and distribu-
tion of their products valued, in the aggregate, at more than $500,000; sold products
valued in the aggregate at more than $1.000.000 of which products valued, in the
aggregate, at more than $50,000 were sold and shipped across State lines; made pur-
chases of milk and other products valued, in the aggregate, at more than $1,000,000
of which products valued, in the aggregate, at more than $50,000 were shipped
across State lines.
Upon the foregoing facts I find , as Respondent admits, that it is engaged in inter-
state commerce within the meaning of Section 2(6) and (7) of the Act.
Local 584, which has represented Greenwood's drivers for a number of years, is
a labor organization within the meaning of Section 2(5) of the Act.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Greenwood serves household customers almost exclusively and its drivers are
represented by Teamster Local 584. Prior to his discharge on December 13, 1961,
Harry Miller had been a driver for Greenwood for nearly 9 years and had been the
shop steward since about March 1960.
On October 24, 1961, a citywide (New York) strike began against Greenwood
and other companies whose drivers are represented by Local 584 and other Teamster
locals. The strike, which was called in connection with contract negotiations, ended
on November 8, 1961.1
Before the strike, Greenwood operated 35 routes, 24 of them in Westchester and
11 in the "city." The employees of most, if not all, of the other companies operating
in Westchester were represented by Teamster Local 338 and were not on strike. This
meant that Greenwood was probably the only company serving Westchester which
was affected by the city strike. As a result, Greenwood President Harry Marrow
feared that the Company's Westchester customers would be lost permanently to
competitors unless deliveries in that area were resumed promptly. Marrow therefore
sought repeatedly to persuade the Westchester drivers to return to work. His efforts
were consistently opposed by Shop Steward Miller who urged the men to remain on
strike until the Union gave them permission to go back to work or the strike was
settled. According to the General Counsel, Miller's opposition to Marrow's efforts
caused Greenwood to delay the reinstatement of Miller after the strike was settled
and then to discharge him approximately a month later.
B. Marrow's efforts to persuade the Westchester drivers to abandon the strike
and Miller's opposition thereto 2
Shortly after the strike began, Marrow talked to the drivers and told them they
were foolish to strike and that if it was up to him he would settle the strike imme-
diately. Marrow also promised that "whatever the union got for the others," they
would get retroactively. When Marrow finished speaking, Shop Steward Miller
spoke. He reminded the men that they had voted a few hours earlier to strike and
pointed out that if Marrow's "intentions were sincere, all he has to do is go down
to the union and sign a contract and the men would go back to work."
A few hours later, Marrow told Miller that he [Marrow] had "just got an order
from the Union" permitting the Westchester drivers to deliver milk. Miller said
he would call the Union and if Marrow's statement were true, he would tell the
men to return to work. However, the Union told Miller that Marrow's statement
was not true. Thereafter, in Marrow's presence, Miller informed the men that the
Union had not given permission for them to work and if they did so "on their own,"
they would "assume the responsibility " The Westchester drivers decided not to
go back to work "under those conditions." 3
Miller was on the picket line every day during the strike and on numerous occasions
Marrow accused him of being responsible for the continued strike by the Westchester
drivers. Marrow made such comments as, "What's the matter with you, Harry? Why
don't you send the men back to work? If it weren't for you, these men would go back.
Why don't you send them back? You will be forcing me to sell my business." Miller
always answered that he was only the shop steward and that he did not have the
power to do anything until the Union notified him that the strike was over or that
the Westchester men could go back to work. Marrow, however, kept insisting that
Miller had the authority to send the men back.
On October 28, all of the Westchester drivers except Miller and David O'Connor
took out their trucks after Marrow promised them that he would "miake up the
difference" if the pension plan nand medical plan under Local 584's new contract were
1 Unless indicated otherwise, all dates refer to 1961
The findings of fact in this and subsequent sections are based primarily upon the
testimony of Harry Miller which I credit. I was Impressed with Miller's demeanor while
testifying and am convinced that he was a truthful witness . Moreover, much of his
testimony, even on critical matters, Is undisputed and in no instance did Respondent
adduce objective evidence which cast doubt upon Miller's veracity generally or his ability
to recall events accurately.
3At least after the first day of the strike, Marrow's back -to-work appeals were directed
at the Westchester drivers only.
GREEN WOOD FARMS, INC. 653
better than the corresponding provisions of Local 338's ( the Westchester Local)
contract.
The next afternoon , Miller spoke to the Westchester men who had returned to
work. At least some of them had stated to Miller that they felt they had made a
mistake by working and Miller told them that he agreed that they had made a mistake
Miller also reminded the men that they were members of Local 584 , that Local 584
had voted to strike, and they were "duty-bound" to uphold the strike. As a result
of Miller's talk , the Westchester men again stopped delivering milk. Marrow, who
was present , charged Miller with preventing the men from returning to work and
Miller replied that he was not responsible . Miller also stated that the men would
work if a union official came down and told them to do so.
On one occasion during this period, the exchange between Miller and Marl ow
began to get "heated" and Miller turned and started to walk away . He had gone
only a few feet when Marrow remarked to a group of men , "That little bastard,
when the strike is over , I am going to get him." 4
One Sunday during the strike , Miller received a call from Marrow who said that
John O'Rourke , president of Joint Council 16 of the Teamsters , wanted to talk to
Miller Miller asked to speak to a union official who confirmed Marrow's statement.
Miller then went to the Hotel Delmonico and talked to O'Rourke and Local 584's
president , John Kelly, and its secretary -treasurer , Carlos Ferrara.
O'Rourke asked Miller what the trouble was at Greenwood and "what about"
the Westchester routes . Miller explained that Marrow believed that he [Miller]
was responsible for the Westchester drivers not working. O 'Rourke then asked if
Miller had not been told by a union official to instruct the men to resume deliveries.
Miller replied in the negative adding that if President Kelly or Secretary -treasurer
Ferrara were to tell him to send the Westchester men out, he would tell the men
immediately . Neither Kelly nor Ferrara gave Miller any such instructions and
O'Rourke observed , "Well, if they . didn't give you permission . then I
have been misinformed . . I thought they gave you permission and you were
the one that was holding out."
On October 31, each of the Westchester drivers received a telegram stating that
Greenwood 's Westchester business had been sold to White Clover , another company
in which Marrow has an interest . and instructing them to report to Teamster Local
338 When the men asked Miller what they should do, he told them that the
telegrams might be a "trick" and that they should get verification from the Union
Later that day , the Union sent the drivers telegrams confirming the statements made
in the earlier telegrams and all of the Westchester drivers except Miller and O 'Connor
transferred immediately to White Clover and Local 338 . The "city" drivers re-
mained on strike for another 8 days.
C Greenwood's delay in reinstating Miller and his discharge on December 13
The strike was settled on November 8 and all of the drivers who had continued
to strike except Miller and O 'Connor were notified to and did return to work on
November 9 When Miller asked Greenwood Manager Edward Elmes why he and
O'Connor were not recalled , Elmes replied that the two men were not working for
the Company any more Miller asked "why" and Elmes answered , "That's all I
can tell you . Mr Marrow told me you two guys are not to he called back to work " 5
Miller and O 'Connor reported their discharge to Union Official Ferrara who called
Elmes Miller and O'Connor returned to work the following day , November 10
On the morning of December 12, driver Coughon told Miller that he (Coughon)
was due to go on vacation but would like to work instead . Miller explained that he
was without authority to give Coughon permission to work, that permission would
have to be obtained from the Union, and if it were given Miller would have no ob-
jection to Coughon's working.
A few hours later , Manager Elmes called Miller to the office and asked why he
was giving Elmes "a hard time" and why he would not let Coughon work during his
4I do not credit either Marrow's denial that he made such a statement or his testimony
generally. My inability to do so is based upon my observation of his demeanor while
testifying, on the material contradictions in his own testimony, and on the fact that, as
ahown infra, critical portions of his testimony are refuted by the testimony of Respond-
ent's other main witnesses, Edward Elmes. and by company records I do not find it
necessary to pass upon the credibility of Vincent Galavitz who testified that Marrow
referred to Miller as a "sheeny bastard."
5 Elmes did not deny having made the above statements to Miller.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vacation. Miller explained to Elmes, as he had to Coughon, that the latter would
have to get permission from the Union. Miller suggested that Elmes call the Union
and stated that he had no objection to Coughon's working if the Union gave its per-
mission. After telling Miller to wait, Elmes went into President Marrow's office.
He returned in a few minutes and directed Miller to bring his route book to the
office. Miller complied.6
The next day (Wednesday, December 13) was Miller's "day off." About 10 a m.,
Elmes called Miller at home, told him that there was "some discrepancy" in his
route book and to come down and straighten it out. Miller asked if it could not
wait until the next day but Elmes answered, "If you don't come back [today] and
straighten . . . out [the book], you are through. Don't report to work anymore."
Miller went to Elmes' office accompanied by Robert Azzari, the shop steward at
Knoll Creek Dairy, another Marrow company which has its offices in the same
budding as Greenwood 7 When Miller asked Elmes what was "up," Elmes replied
that Miller was "through." Miller wanted to know what had happened "all of a
sudden" and the reason for his discharge. Elmes replied, "Inefficiency," adding that
Miller had not turned in stops and aways and had been cheating customers on
discounts.8
Miller told Elmes that he had turned in four sheets of stops and aways to Company
Clerk Ted Amorosa who said that he was too busy to make the required entries in
Miller's route book. Miller also showed Elmes' entries in his route book which
showed that he was not "cheating" customers on discounts .9 It is undisputed that
after Miller had completed his explanations, Knoll Creek Steward Azzari said to
Elmes, "Look, Eddie, everything is black and white. There is no cheating, no noth-
ing. He is showing you . . . . What are you firing him for?" Elmes answered,
"Inefficiency." Azzari expressed disbelief that a man would be fired for inefficiency
after 9 years.
On December 16, Miller and Union Representatives Sopinko and Barone met
with Marrow and Elmes. In response to a question, Marrow said that Miller had
been discharged for a $59 shortage and that he "didn't have to go any farther."
Miller wanted to know "what shortage?" and why the shortage had not been men-
tioned during his meeting with Elmes on December 13. Elmes explained that there
had been no "chance" at that time to check Miller's book. Miller said he doubted
that his book was short.
Marrow also repeated the charge that Miller had not turned in his stops and
aways and Miller again asserted that he had turned them in to Amorosa. Miller's
testimony that Amorosa was called in and verified Miller's statement is uncontra-
dicted. Finally, Miller explained his system of entering "discounts" in his book but
Marrow commented, "I don't care. He is fired."
D. The various reasons asserted by Respondent for discharging Miller
As found above, Manager Elmes told Miller that he was being discharged because
of inefficiency, failure to turn in stops and aways, and cheating customers on dis-
counts. A few days later, Marrow stated that the reason was a $59 shortage, adding
that he "didn't have to go any farther."
When an employee leaves the Company, the blanks on a printed form headed
"Confidential Termination Report" are filled in. Pertinent portions of Miller's re-
port are set forth below:
Do You Recommend Re-Employment9 No.
If Not, Give Reason-
6 Elmes did not deny Miller's testimony concerning this interview
7 Miller testified that he wanted Azzari to represent him and to hear what took place.
At times, Azzarl's name appears in the record as Izzari
9I do not credit Elmes' testimony that he told Miller that he had a "shortage" in his
book when he talked to Miller on the telephone and again during their meeting on
December 13 Elmes' demeanor on the stand was not that of a witness who is trying to
answer questions truthfully, fully, and to the best of his ability. Furthermore, as demon-
strated infra, a comparison between Elmes' testimony and company records reveals
that many of his answers to material questions were, at the very least, misleading
9 The various reasons advanced by Respondent for Miller's discharge are explained and
,evaluated in section D, infra.
GREENWOOD FARMS, INC.
If Discharged, Give Full Particulars: Failure
Rules-Attitude--non Cooperation.
655
to comply with Company
Characteristics Excellent Good Fair Unsatis-
factory
Industriousness -----------------------------------------
X
-
Knowledge of lob----------------------------------------
x
------------------------------Personal appearance x-------
(Conduct) ----------------------------------------------
x
-
(Cooperation)---------------------------------------------
x
Safety----------------------------------------------------
x
Accuracy ----------------------------------
x
----------- -
Sales ability --------------------------------------------- x
Collection record----------------------------------------- X
Remarks: short book, stops not turned in-overall negligence.
The only entries made by Elmes on the above report were those under "Remarks."
The others were made by Assistant Manager Leslie Shanahan, Miller's immediate
supervisor Although Elmes said Shanahan was in "closest contact" with Miller's
work, Elmes could not recall whether he talked to Shanahan before Miller's discharge
but stated definitely that he did so afterward.1° However, Elmes was unable to recall
anything Shanahan told him about Miller's work and Shanahan was not a witness.
Elmes admitted, however, that Miller was not discharged because of his "attitude" or
because of "non-cooperation," two of the reasons listed by Shanahan.
Elmes, who had been general manager for more than a year at the time of Miller's
discharge, described Miller as a below average driver but asserted that he had not
discharged Miller earlier because "there were others to weed out, too, and it takes
time." 11 However, there is no probative evidence that anyone had ever talked to
Miller about his alleged shortcomings and there is no evidence that Miller had been
warned that he would be discharged if he did not change his ways.12
President Marrow, Respondent's first witness, testified that Elmes reported that he
discharged Miller "because of stealing, overcharging customers and shortage in book"
of over $50. According to Marrow, Miller's overcharges and shortages were not
caused by mistakes but by dishonesty. For example, Marrow claimed that Miller had
entered one price in his book, collected a higher price from customers, ,and pocketed
the difference. Elsewhere, Marrow asserted that Miller's shortages proved that he
was stealing . Marrow asserted that he did not know the details but promised that
Manager Elmes would provide them. However, as will be indicated, Elmes' testi-
mony and company records clearly establish that Miller had done nothing dis-
honest.
Marrow's willingness to make so serious a charge against Miller , without justifica-
tion, convinces me that Marrow was not a trustworthy witness, particularly when
testifying about matters which concerned Miller. However, I credit those portions
of Marrow's testimony in which he describes (1) his fear that the strike might cause
a permanent loss of the Company 's Westchester customers and (2 ) his efforts to
remove the Westchester drivers from the ambit of the strike.
Manager Elmes, on the other hand, did not accuse Miller of "stealing" and was
generally much more restrained in his testimony. Even on direct examination, Elmes
appeared at times to be a reluctant witness and frequently seemed to find it difficult
to sustain the burden placed on him by President Marrow when the latter promised
that Elmes would provide the facts upon which Marrow's charges against Miller
were based.
1O When Elmes was asked if he told Shanahan "the reasons for Mr Miller's discharge,"
Elmes answered • "The reasons stated on paper, yes, sir "
It Greenwood employed about 50 drivers before the strike.
12 Although Elmes testified that Shanahan had complained about Miller's book, when
asked if he had ever mentioned the complaints to Miller, Elmes answered , "Through nor-
mal reaction , I would I most likely did . . I couldn 't give you a definite yes and
I couldn ' t give you a definite no."
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elmes did not deny Miller's testimony that Elmes called him to the office to discuss
driver Coughon's desire to work during his vacation. He asserted, however, that
his "check" of Miller's book on that date was merely "routine." 13 According to
Elmes, his check revealed a shortage of $83.54 and "quite a few things wrong
with the book." Elmes also testified that he made a list (General Counsel's
Exhibit No. 11) of the "discrepancies" he found in Miller's book which he described
as follows: 16 or 17 "stops" not turned in; 30 to 40 delinquent accounts to which
letters had not been sent, evidence that customers had been charged the one-half
cent price increase (announced on November 30, effective December 1) since
"November 27th-25th"; and 6 or 7 customer notes which had not been complied
with. Finally, Elmes said that it was discovered that Miller had turned in a check
which did not belong to his route.
On direct examination, Elmes was asked to name other employees he had dis-
charged for one or more of the reasons he had cited in Miller's case. He named 10
or 12 and gave the reason in each case. On cross-examination, however, Elmes
admitted that only one of those named had worked for Greenwood. The others were
employees of another company headed by Marrow and apparently managed by
Elmes. Elmes' testimony on direct examination on this subject was therefore
misleading and, as indicated, infra, the impression created by other portions of his
testimony is found to be unjustified when company records are examined. Under
these circumstances, I am unable to and do not accept Elmes' testimony generally
at face value even if undisputed. This is particularly true of his testimony concern-
ing Miller's alleged "shortage" and "overcharging" of customers, discussed infra.
1. The duties of a routeman
Generally speaking, it is the duty of a driver to: deliver milk; take care of
customer complaints; compute and leave bills approximately every 2 weeks; compute
his "price allowance" on each account at the end of the month; and make prompt
reports to the office concerning customers who stop taking milk (stops), who are
away (aways), and who fail to pay their bills.
Each driver keeps a "book" which contains a sheet for each account number
or customer. Miller, who had route No. 64, had approximately 450 customers.
Company rules applicable to routemen are set forth in a booklet which is fre-
quently referred to in the record as the "pink" rules because of the color of the
paper used.
2. The nonmoney items alleged by Respondent as contributing to its decision to,
discharge Miller
a. Miller's alleged failure to turn in stops and aways
When a customer stops receiving service, a company rule requires the driver to
notify the office at once so that a representative can call promptly and try to
persuade the customer to resume service. The Company's experience has been that
when 'this is done, at least 50 percent of the cancellations are revoked. Under these
circumstances, it is important that stops be reported to the office immediately. When
a stop is reported, an office clerk is supposed to initial the stop entry in the driver's
book. Elmes testified that he found 16 or 17 uninitialed stops in Miller's book which
meant , he said, that they had not been turned in.
However, Miller testified without contradiction that shortly before his discharge
he had turned in four sheets of stops to a clerk named Amorosa who said he was
too busy to initial Miller's book. Similarly uncontradicted is Miller's testimony
that Amorosa was called in to the meeting on December 16 and verified Miller's
claim. Elmes' testimony on this subject was limited to a statement that he had
never seen and had not been able to find the sheets.
b. Miller's failure to notify the office to send letters to delinquent customers
When a bill is unpaid, another rule requires the driver to notify the office to send
the customer a letter. If the bill is still unpaid 7 days later, the driver is supposed
to notify the office to send a second letter and the process is to be repeated until four
letters have been sent. If the bill remains unpaid after four letters, the Company
absorbs the loss. If fewer than four letters are sent, the bill is charged to the driver.
13 Elmes testified that he had planned to check some books that morning and Miller's.
"face" reminded him of the books and he asked Miller to bring his book to, the office
GREENWOOD FAR-IS, INC. 657
Elmes testified that when he checked Miller's book, he found 30 to 40 delinquent
customers to whom the series of letters had not been sent However, there is no
reference to Miller's alleged failure to send letters on Miller's termination report
and there is no evidence that letters were mentioned either at the Miller-Elmes
meeting on December 13 or at the expanded meeting 3 days later. Nor did Marrow
refer to Miller's alleged failure to send letters or to report stops in his testimony
concerning the reasons why Miller was discharged
Route 64 was assigned to Miller for the first time on November 10, the day he
returned to work after the strike. However, a comparison between the accounts
listed by Elmes and the customer sheets from Miller's book reveals that 32 of the
52 accounts which Elmes listed in this category had stopped service well before
the route was assigned to Miller For example, Elmes stated with respect to account
No 321: No follow-up on bill However, the customer sheet bears the following
notations :
stopped 7/1/61;-this was paid in July-no more letters-see me for credit-
Rose
The sheets for 17 more accounts concerning which Elmes made similar comments
show that service was stopped at least as early as September and one of them bears
the notation "went to Ireland-will call." The customer sheets of 14 others show
no deliveries after the beginning of the strike (October 24) and 5 of the 14 stopped
service at least a week before the strike.
While Elmes' comment in each of these cases (which he repeated at the hearing)
is technically correct, it is incredible to me that Elmes believed that Miller should have
notified the office to send letters to customers who stopped service weeks or months
before he took over the route. This conclusion is borne out by the fact that Elmes,
both on his list and in his testimony, omitted the dates on which service stopped when
commenting on these accounts but always included the date in his comments with
respect to accounts which were reasonably current Furthermore, when Elmes was
asked on cross-examination whether he had included accounts which were delinquent
before the route was assigned to Miller, his first answers were equivocal but upon
being pressed, he testified:
The stops have dates on them. That would be after his taking over the
book .. . it would involve . . . from November 9 or 10
Under these circumstances, I conclude that Elmes concealed material facts at the
hearing and knowingly gave testimony, the effect of which was, at the very least,
misleading.
It is true that Miller's book shows a number of customers who had failed to pay
their bills after Miller took over the route and to whom, it appears, no letters were
sent But Elmes chose not to rely on these instances alone. Instead, he included
a high percentage of stale claims and then sought to conceal what he had done
Why did Elmes act in this manner? The most obvious answer is that he recognized
that a list of Miller's accounts which became delinquent after he took over the route
would not adequately support the Company's claim that it discharged Miller in part
because of his failure to notify the office to send letters.
c. Milk bottle notes not complied with
Customers frequently leave messages for the drivers in the milk bottles and Green-
woodintroduced into evidence seven notes which are referred to in the record as the
"milk bottle notes." Elmes testified that he found the notes when he went over Miller's
book and determined by examining the book that Miller had not complied with the
customer requests stated in the notes.
One of the seven, however, was dated December 18, that is, after Miller was dis-
charged. It concerns the check incident discussed infra, and was written not by a
customer but either by Elmes or someone else in the office. Miller, it seems, is
not the only one who makes mistakes.
Only three of the remaining six notes are signed. However, I am assuming that
the other three were written by the customer whose account number has been added
by someone, probably Elmes. In three cases, the account sheet shows no delivery
after November It would seem, therefore, that these notes were in Miller's book
when it received its regular monthly "audit" about December 1. If so, there is no
evidence that anything was said to Miller about them at that time.
Moreover, the six notes are from customers whose account numbers appear on the
Elmes list which means that the notes do not constitute separate "offenses" but are in
effect a repetition of the charges that Miller failed to turn in stops and to notify the
office to send letters
,658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, in two of the six cases, service was stopped only a few days before Miller
was discharged so that it is quite possible that Miller had not had an opportunity
to comply with the customer's request.
3. The "money" items alleged by Respondent as having contributed to its decision
to discharge Miller
a. Introductory statement
Each morning the number of quarts of milk and units of other products taken
out by the driver are recorded on a sheet which is retained by the Company. A
copy or a "receipt" is given the driver. Each unit has a "booking in" or list price
which appears to have been 30 cents a quart for milk. However, only a few customers
pay the list price. The 60-plus customer sheets from Miller's book which were
introduced into the record show only two who paid 30 cents in November. Other
prices shown are: 25, 26, 261/2, 27, 271/2, 281/2. 29, 291/2, and 31 cents
But the amount which a driver "owes" the Company at the end of a month is not
determined either by adding the bills (even if correct) submitted to the customers
or by multiplying units furnished by list price Instead, it is determined as follows:
1. The units taken out by the driver during the period are multiplied by the list
price. The product is the amount which the driver theoretically owes the Company.
2. The driver computes his "discount" or "price allowance" for each customer's
account by: (1) multiplying units delivered by list price; (2) multiplying units
delivered by customer price; and (3) subcontracting the second product from the first.
3. The "discounts" are added together and the total is subtracted from the product
obtained by multiplying the units delivered by the list price The difference is the
amount which the driver "owes" the Company for units delivered.
4. The number of units delivered, returned, et cetera, is subtracted from the num-
ber furnished the driver in the period. The difference is multiplied by the list price.
The result is the amount the driver owes for units not delivered but not returned,
reported, broken, et cetera
5. The product obtained by multiplying the units delivered by the price charged
is added to the product obtained by multiplying the units unaccounted for by the list
price. If the driver turns in less than the sum of these two figures, he is "short"
by that amount.
A hypothetical computation is set forth below.14
14 The hypothetical computation follows:
EXAMPLE
Assume 400 quarts milk furnished driver and assume route book shows 300 units
delivered to customers.
Driver
Customer Units
Price
charged,
owes
company Discount or price allowance
cents theoreti-
cally
A ---------------------------- 90 25 $22 50 9OX30less 90X25----------- $4 50
B ---------------------------- 80
25!2 20 40 8OX30 less SOX2534 ---------- 3 60
C ---------------------------- 70
26 18 20 70X30 less 70X26------------ 2 80
D---------------------------- 60
26A 15 90 60X30 less 60X2614---------- 2.10
13 00
400 units furnished at Wit ------------------------------------------------------------------- $120 00
100 units unaccounted for at 30t------------------------------------------------------------- 30 00
300 units delivered at 30^ -------------------------------------------------------------------- go 00
90 at discount of ---------------------------------------------------------------------------
80 at discount of-------------------------------------------------------------------------
70 at discount of--------------------------------------------------------------------------
60 at discount of----------------------------------------------------------------------------
Amount driver owes company-------------------------------------------------------
13.00
4 50
3 60
2 80
2 10
107 00
GREENWOOD FARMS, INC. 659
b. Miller's alleged shortage
As previously found, President Marrow stated at the meeting with the union
representatives on December 16 that Miller had been discharged for a $59 shortage
and that he "didn't have to go any farther." Although Marrow promised that
Manager Elmes would supply the "details," the latter's testimony was likewise
largely conclusionary.
According to Elmes, he went over Miller's book, entered "red figures" and then
gave the book to a girl in the office to total the red figures on an adding machine.
When she gave him the adding machine tapes, Elmes prepared a "summary" by
adding and subtracting various totals shown on the tapes. The tapes, which consist
of hundreds of "raw" figures and the summary (which is a sheet on which various
figures are added and subtracted) are the only objective evidence introduced by
Respondent to substantiate its claim that Miller had a shortage. No breakdown of
Elmes' computation was supplied and it is impossible to check its accuracy although
it is correct only if Elmes made not a single error in "figuring" the 450 sheets in
Miller's book and in checking the Company's records of the units of milk, et cetera,
charged to Miller and the office girl made not a single tabulating mistake.
Moreover, both Elmes' summary and his testimony cast doubt on the accuracy
of the "final" figure of $60.20. Thus, the first computation on the summary resulted
in a "shortage" of $75.93. This is then reduced to $71.81, by subtracting $4 12.
According to Elmes, he checked the book again and added $14 for a third total,
$85.81. This figure is reduced to $63.66 by subtracting $22.15 but these figures
are crossed out so that the $85.81 is restored. But this is not the "final" figure for
there are two more subtractions and one more addition before the final figure of
$60 20 appears.
In view of the complicated bookkeeping system described above and the difficulty
which Elmes himself had in arriving at a "final" figure, it is obvious that Miller was not
exaggerating when he said that "You would have to have a real knowledge of book-
keeping to be able to go through the whole system and the average milkman hasn't
got that knowledge. At least I haven't." In short, as Miller asserted, a driver would
have to employ a certified public accountant in order to check the accuracy of com-
pany claims with respect to shortages.15
Under these circumstances, I have serious doubts concerning the accuracy
of the $60 20 shortage ult;mately claimed by the Company and am not even
sure that Miller was short any appreciable amount.18 I am of the opinion that if
Miller was short, Respondent would have been able to and would have produced
more objective and specific proof than the record contains 17 But even if it is assumed
that Miller was short $60, it does not follow that he was discharged, even in part,
for that reason
Miller was discharged on December 13 although the company rules provide:
All shortaees over $50 must be found by the 15th of the month, or shortage
paid to the office by that time. [Emphasis supplied.]
18 For the reasons already stated, I do not credit Elmes' testimony that M,ller went
over his book and was able to point out errors in Elmes' figures totaling $27 87
10 If Miller's book was short, the shortage may well have been attributable to the driver
who had the route for the day or two between the strike and Miller's reinstatement
and/or to the driver who substituted for Miller on his 2 days off a week.
17 On cross-examination, Elmes, who had Miller's book before him, was asked the follow
ing questions and gave the following answers:
Q. . . . I want you to show me right now where in Miller's book you found a
shortage or a discrepancy.
A The total amount of red figures would indicate the balance outstanding in the
book. The office figure would indicate the balance supposed to be in the book.
TRIAL EXAMINER. Does the office figure appear on this sheet ever?
The WITNESS: No, it is on another sheet. You deduct one from the other and
that is where we find out the amount of the shortage.
[The other sheet was never offered into evidence I
• o • ♦ • e r
Q. Can you turn in that book to the pages that you used to calculate Miller's
shortage?
A The whole book was used.
681-492-63-vol. 140-43
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, President Marrow seemed unaware of the rule. When questioned about
it, Marrow first stated that the driver has until the 15th only if the amount is under
$50. Upon further questioning about the rule, Marrow answered, "I really don't
know. Mr. Elmes put the rules out." Marrow also testified that drivers who are
allegedly short over $50 are given "a couple of weeks" to try to find the shortage
and if they do not find it, "we fire them."
When Marrow was reminded that Miller was not given until the 15th to find the
shortage or pay it, he explained that this was the second time Miller was short and
that when it happened before, he told Elmes, "if it happens again, I don't want the
man working for me." 18 In short, the gist of Marrow's testimony was that a driver
is discharged when he has a second genuine shortage.
The foregoing testimony is wholly unsupported by the record.
Miller's testimony that he was not warned or even criticized at the time of his
previous shortage is undenied. Moreover, Elmes did not refer to any instruction
from Marrow of the type testified to by the latter. In addition, the very existence
of the rule giving a driver until the 15th of the month to find the shortage or pay it
indicates that shortages of over $50 are not uncommon.1e In fact, Marrow himself
later admitted that an average of 6 out of 50 drivers are short some amount every
month. Elmes, in turn, testified that drivers are rarely, if ever, discharged because
of a shortage alone and that Miller's (alleged) failure to turn in stops was a more
serious offense than his shortage.
Finally, Elmes testified as follows concerning the shortages of seven other drivers
during 1961:
Total
mos short
Highest Others above $50
Route 56-------- -------------- 10 $92 52 1
Route 57----------------- ------------ 10 65 77 2
Route 58--------------------------- -- 10 54 76 0
Route 59--------------------------- 10 165 71 3 (one of these over $100).
Route 61-------------------- -------- 7 166 00 0
Route 62------------------------------ 10 261 29 2 (both over $100)
Route 65----------------------------- 10 220 15 2 (one of these over $100)
In contrast, Miller's undenied testimony discloses that his only previous shortage
in the nearly 9 years he had worked for the Company was the $94 shortage 13
months earlier. When Marrow was asked how he distinguished between a driver
whose shortage was due to a mistake and one whose shortage was due to dishonesty,
he answered that a dishonest driver is one who is "continuously short." When "a
fellow is short once in six months," Marrow said, "we tell him to be careful and
watch it. Others we let go." Nonetheless, as stated supra, Marrow asserted that
when Miller was short 13 months earlier, he told Elmes to discharge Miller if it
happened again and explained the failure to give Miller until the 15th to find his
shortage or pay it on the ground that it was his second shortage.
c. Overcharges
1. General overcharging
As previously indicated, President Marrow indicated that one of the major reasons
for Miller's discharge was his alleged "stealing" from or "overcharging" of cus-
is Thirteen months earlier, Miller was charged with a shortage of $94 48. He had been
away for 3 weeks campaigning ( unsuccessfully ) for an office in the Union on an "opposi-
tion" ticket. When he was told about the shortage on his return, he said that he doubted
he would be able to find it and predicted that he would probably pay it. This he did in
late April 1961, i.e , 4 or 5 months later Miller explained that shortages are not matters
of great concern to the Company because each driver posts $200 as security. Miller
"paid" the shortage allegedly found in December 1961, only in the sense that the Com-
pany deducted it from his $200 security . Cf Marrow's testimony that Miller "paid" the
money "so he proves that he has taken it out "
19 As previously indicated , I do not credit Elmes' testimony that he mentioned the
alleged shortage to Miller on December 13 I have credited instead Miller's testimony
that the shortage was brought up for the first time at the meeting with the union repre-
sentatives on December 16. If the shortage had been mentioned on the 12th or 13th,
Miller, who was aware of the rule, would almost certainly have demanded an opportunity
to pay it, thereby removing it as a grounds for discharge.
GREEN WOOD FARMS, INC
tamers. It is interesting to note, however, that there is no reference to "overcharg-
ing" customers on Miller's termination report When questioned concerning this
omission, Elmes explained that the overcharges could be included in his entry
"overall negligence."
On November 30, the Company announced a price increase of one-half cent ef-
fective Friday, December 1. On direct examination, Elmes stated that when Miller
prepared his first December bills, he charged the higher price for deliveries "from
November 27th-25th." Since Miller's account sheets show deliveries only every
other day, this would mean that only two, or at the most three deliveries were com-
puted at the new rate. However, Elmes admitted on cross-examination that he would
not be surprised to learn that the books of the other drivers disclosed that they had
charged the higher price for one or two deliveries but would be surprised by any-
thing "over" four or five. In answer to the next question, Elmes stated that half
of Miller's customers were charged the increased price for one or two deliveries and
the other half for five deliveries. Elmes admitted that the charges were noted in
Miller's book, which means that Miller was not trying to conceal what he had done
and was turning the money in to the Company, not pocketing it, as Marrow claimed.
Miller's explanation (which I credit), for having charged the higher price through-
out the entire billing period which included the effective date of the price increase
was that the drivers had been instructed never to leave a "split" bill (one which shows
a number of deliveries at one price and a number at a higher price) because this
puts the customer on notice that the price has gone up20 Miller also testified-
and his customer sheets corroborate his testimony-that he noted in the upper right-
hand corner of the sheets, the amount of the "overcharge." His plan, he explained,
was to deduct the amount of the overcharge from each customer's next bill, thereby
in effect giving her a "refund." In other words, if Miller had not been discharged,
the overcharges would have disappeared when he prepared his next bills which
would have been in a few days.
Elmes admitted that when he accused Miller of overcharging customers, Miller
showed him the figures in the upper-right corner of the sheets, and explained that
he would give the customers credit for the overcharges on their next bills. After hear-
ing Miller's explanation, Shop Steward Azzari exclaimed, "Look, Eddie, everything
is [in] black and white. There is no cheating, no nothing .
When it was pointed out to Elmes on cross-examination that Miller's system would
have resulted in the elimination of the overcharges, Elmes replied that Miller "would
have to have an okay to put . . . figure[s] like [those] into the book This is not
company procedure." 21 Be that as it may, the entries were there and were explained
to Elmes before Miller was discharged. Yet Marrow, at least, claimed at the hearing
that Miller was pocketing the overcharges and Elmes sought to create the impression
that the overcharges reflected on Miller's integrity. I can only conclude therefore
that Respondent's witnesses knowingly misrepresented the nature and the significance
of Miller's overcharges Perhaps Marrow used such "hypnotic" words as "cheating"
and "stealing" on the theory that a molehill may come to be thought of as a moun-
tain if it is always referred to as a mountain.22
Despite the absence of a reference to "overcharges" on Miller's termination re-
port, Respondent argued that it was justifiably concerned about them because they
might result in the loss of customers. However, Respondent offered no evidence
of any complaints from customers. Moreover, even assuming that Miller's customers
were overcharged for six deliveries, the maximum claimed by Respondent, this would
mean that 1 quart customers were overcharged 3 cents, 2 quart customers 6 cents.
3 quart customers 9 cents, and 4 quart customers 12 cents. Although no customer
likes to be overcharged even a few cents, it is difficult to believe that the Company
feared that Miller's customers would change milk companies because of overcharges
of 3 cents or even 6 or 12 cents (even if they were aware of it which is doubtful)
especially if told they would receive credit for the overcharges on their next bills.
-"I credit Miller 's testimony in this respect and discredit Elmes ' testimony that "split"
bills are submitted
2 'When counsel for Greenwood brought out on cross -examination of rebuttal witness
O'Connor that he noted his " overcharges" elsewhere on the sheets . I asked if counsel
was suggesting that one of the reasons for Miller ' s discharge was that he had put the
figure in one place rather than another Counsel replied "No . I'm not suggesting that
I am suggesting . . that the system Mr Miller used was not a system used by anyone
else."
In an opinion written by Judge Frank , the Court of Appeals for the Second Circuit
noted the "hypnotic power" of a word or phrase and commented , "Give a bad dogma a
good name and its bite may become as bad as its bark" Kviukundis Shipping Co v
Amtorg Trading Corp ., 126 F 2d 978, 984, footnote 17
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, the Company apparently kept the "overcharges." At least, it made no
claim that the customers were given credit for them on their next bills as Miller had
planned to do.
4. Miller's actual work record
The foregoing analysis is not meant to imply that Miller had a perfect work
record. Among other things, he may have failed to turn in a few stops and
apparently did fail to notify the Company to send delinquent letters in a number
of cases . He also made a few mistakes in computing bills and may have miscal-
culated his "price allowance" on some accounts. Although Respondent could have
validly discharged Miller for these errors and violations of company rules (if
they were in fact the reasons and not merely pretexts), Respondent itself did not
claim that Miller was or would have been discharged for these reasons standing alone.
E. Concluding findings
As set forth supra, President Marrow feared that continued participation in the
strike by the Westchester drivers would result in the permanent loss of Greenwood's
Westchester customers to companies whose employees were not on strike. Marrow
therefore sought repeatedly to persuade the Westchester drivers to abandon the
strike and all of them except Miller and O'Connor did deliver milk 1 day during the
period prior to the sale of the Westchester business to White Clover.
Moreover, Marrow's efforts might well have succeeded but for Shop Steward
Miller's vigorous and continuous opposition. Miller reminded the men that they
had voted to strike, contradicted Marrow's statement that the Union had given
permission for them to work, and warned them that if they did so on "their own,"
they would "assume the responsibility." In short, Shop Steward Miller sought to and
did enforce the order the Union gave the stewards at the beginning of the strike,
namely, that no member of Local 584 was to go out on a route.
Marrow knew that Miller was shop steward and was present on most if not all of the
occasions when Miller spoke to the drivers. Although Marrow first testified that he
had no reason to believe that Miller was in any way responsible for the decision
of the Westchester drivers to remain on strike, he later admitted that Miller had
opposed his efforts to achieve the contrary result "many" times. In addition, Marrow
repeatedly accused Miller of being responsible for the continued strike by the
Westchester drivers and insisted that Miller had the authority to send the men back
to work. Although Miller was equally emphatic in stating that he could do nothing
absent specific instructions from the Union, Marrow made it clear that he did not
believe Miller, and on one such occasion stated flatly that he would "get" Miller
as soon as the strike was over.
I also note President Marrow's wholly unjustified claim that Miller had been
stealing. Although Miller's work record was not perfect, he was guilty of nothing
which adequately explains Marrow's intemperate charges against him. In my
opinion, Marrow's attitude toward Miller must have had its origin in something
other than Miller's actual work record. I conclude that it had its origin in Miller's
conduct during the strike, for there is nothing else in the record which would account
for Marrow's sudden and obvious antagonism toward Miller.
The courts have recognized repeatedly that an inference of "discriminatory moti-
vation is sustained and buttressed by the fact that the explanation" given by the
Company for its action "fail[s] to stand under scrutiny." N.L.R.B. v. Griggs
Equipment, Inc., 307 F. 2d 275 (C.A. 5), and cases cited therein. In my opinion,
this is particularly true if the employer's explanation in itself reveals a hostility toward
the employee out of all proportion to his actual deficiencies.
2. Accounts Nos. 244A and 288
According to Elmes, Miller billed account No. 244A for 9 quarts of milk
which the customer did not receive and Miller admittedly left account No. 288 a bill
for $24 when it should have been $16.
Miller explained that when he went to collect account No. 244A, the customer
told him she had received an extra delivery and paid him $2.34 more than the bill
be had left her. As Miller pointed out, be recorded the amount collected in his
book but if he had "wanted to cheat" he could have reported that he had collected
the lesser amount and pocketed the extra and the Company would never have
known anything about it. Although Respondent scoffed in its brief to the Trial
Examiner at Miller's explanation, the fact remains that the customer paid the bill
GREENWOOD I'AR_MMS, INC. 663
without protest as she surely would not have done if she had been overcharged
by more than $2.23
in the case of account No. 288, Miller admitted that he made a mistake when he
left a bill for $24 when it should have been for $16. However, the account sheet
shows that the customer paid only $16. It also shows, significantly, that the
customer did not stop taking milk even though a sizable mistake had been made
in her bill.
3. The check erroneously turned in
According to Elmes, Miller also improperly turned in and claimed credit for
a check for $6.75. Elmes admitted that the chain of events was set in motion by a
mistake make by someone in the office who placed the check in Miller's book because
the customer had "moved on to Mr. Miller's route." Although Elmes testified that
there was no sheet for the customer in Miller's book and that Miller credited the check
to the account of an entirely different customer, I am far from convinced that this is
what Miller in fact did.
Since the customer who sent in the check had moved to Miller's route, there
would surely be a sheet for her in Miller's book. It seems more likely that what
Miller did was to turn in the check for an account on his route which was in fact
payment for milk received before she moved. It is possible, of course, that the
customer also owed Miller money and that when he found the check in his book,
he naturally turned it in as a part of his collections.
Admittedly, these observations are purely speculative but Respondent' s failure
to introduce the relevant customer sheets makes it impossible to determine exactly
what occurred. Since Elmes' descriptions of Miller's other alleged shortcomings
frequently fail to tell the whole story, I do not accept Elmes' version of the check
incident at face value. Nonetheless, it is clear that there was some mixup which
began when the check was placed in Miller's book by mistake and which was further
complicated by Miller's failure to "catch" and correct the mistake. However, it is
far from clear that the Company was aware of the contretemps until after Miller
was discharged. If it was not, the check incident played no part in Miller's discharge.
But even assuming that the Company knew before Miller was discharged that he had
turned in a check by mistake, in view of all the circumstances I do not credit Elmes'
implied claim that Miller's part in the incident amounted to a serious error 24
I therefore conclude that long before the strike was over, Marrow decided to
terminate Miller's employment because of the latter's generally successful opposition to
Marrow's efforts to persuade the Westchester drivers to abandon She strike and return
to work.
Marrow's first opportunity came at the close of the strike. Accordingly, Miller
and O'Connor, the other Westchester driver who did not report to White Clover
after the sale, were not recalled. It is undisputed that when Miller asked Manager
Elmes the reason, the latter replied that Marrow had told him that Miller and
O'Connor were not to be called back to work. However, both were reinstated after
Elmes received a call from a union official demanding the reinstatement of the two
men.
Marrow testified that he promptly offered Miller and O'Connor reinstatement either
with White Clover in Westchester or Greenwood in the "city." Although Marrow
admitted that there may have been a delay of a day in their actual reinstatement, he
asserted that, if so, it was caused by the fact that they had been Westchester drivers
and it took a little time to find "city" routes for them.
Although Marrow's explanation for the delay is reasonable on its face, it is not
credited. In the first place, it is wholly inconsistent with Elmes' statement to Miller
that Marrow had ordered him not to recall the two men. In the second place, it is
refused by Elmes' admission that a union official called him concerning the reinstate-
ment of Miller and O'Connor, a call which would not have been necessary had they
been offered reinstatement in the manner described by Marrow.
Approximately a month later, Miller's position as shop steward again caused him
to take a position which irritated the Company, namely, his insistence that employee
Coughon could not work during his vacation without permission from the Union.
^ According to Miller, the customer told him that she had received deliveries on con-
secutive days although she was only supposed to receive deliveries every other day
2+ At the hearing, I asked whether the Company's cashing of the check and the sub-
sequent collection of the same amount from Miller meant that the Company was paid
twice. Elmes satisfactorily answered the question in the negative when he explained
that the mixup had resulted in another driver being "short" $6.75 and the money re-
ceived from Miller was credited to that driver 's account to correct the error.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After a conference between Marrow and Elmes, the latter directed Miller to bring
his route book to the office and Miller was discharged the next day.
Miller had worked for the Company for 8 or 9 years and the record contains no
evidence that he had ever been told that his work was unsatisfactory in any respect.
Despite the absence of any previous criticism, Assistant Manager Shanahan indicated
on Miller's termination reportthat Miller was "unsatisfactory" in his: (1) industrious-
ness; (2) knowledge of the job; (3) personal appearance; (4) conduct; (5) coopera-
tion; (6) accuracy; (7) sales ability; and (8) collection record. Only his "safety"
record was checked as "good." Such sudden, wholesale criticism of Miller is not only
suspicious but Respondent offered no evidence with respect to Miller's record in most
of the areas in which Shanahan indicated he was seriously deficient.
Moreover, Shanahan described the "particulars" of Miller's discharge in very
general terms, i.e., "Failure to comply with company rules-Attitude-noncoopera-
tion." Elmes' "remarks" were only a little less general, namely, "short book-stops
not turned in--over-all negligence." Significantly he did not indicate either the amount
of the shortage or the number of stops not turned in. Although Miller's alleged cheat-
ing (overcharging) of customers and his putative failure to notify the office to send
letters to customers with unpaid bills were two of the major items relied upon by
Respondent at the hearing, neither was mentioned on Miller's termination report.
Furthermore, the cornerstone of Respondent's position at the hearing was Mar-
row's testimony that Miller was discharged for two reasons alone: shortages and over-
charging customers which, he said, proved that Miller was dishonest.25 Elmes, on
the other hand, testified that Miller's (alleged) failure to turn in stops was a more
serious offense than his (alleged) shortage and stated that Miller would not have been
discharged for the shortage standing alone. In fact, Elmes at times seemed to be
saying that his real complaint against Miller was the latter's (alleged) failure to
comply with company rules concerning stops, unpaid bills, and customer complaints.
In any event, as demonstrated supra, none of the reasons advanced by Respondent
at various stages of the proceeding stands up under scrutiny. Miller had not been
stealing either from his customers or from the Company. And Elmes' claims are
either refuted by the record or are shown to be grossly exaggerated. I therefore con-
clude that Miller was not discharged for the reasons stated by Respondent-either
singly or in combination. I find instead that Respondent gathered together and either
misrepresented or magnified a number of relatively minor incidents in an effort to
justify Miller's discharge which was caused in fact by his opposition to Marrow's
efforts to persuade the Westchester drivers to abandon the strike.
On the basis of the entire record, including Miller's opposition to Marrow's efforts
to induce the Westchester drivers to abandon the strike, Marrow's threat
during the strike to "get" Miller, and the failure of the reasons asserted by Respondent
for its actions to stand up under scrutiny, I find that a preponderance of the evidence
on the whole record supports the allegations of the complaint that Respondent delayed
Miller's reinstatement after the strike and later discharged him because he sought
to persuade the Westchester drivers to remain on strike. Since Miller's conduct con-
stituted protected union (and concerted) activity, it follows, and I find, that Re-
spondent violated Section 8(a) (3) and (1) of the Act by delaying Miller's reinstate-
ment after the strike and by discharging him a month later.
In view of all of the circumstances, I also find that President Marrow's statement
that he would "get" Miller after the strike interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed them by Section 7 of the Act. That
this was no idle comment is disclosed by the fact that when the strike ended, Re-
spondent first delayed Miller's reinstatement and then discharged him a month later.
In its brief, Respondent argued that the Board should take no action in this case
because the collective-bargaining contract contains a grievance procedure ending in
25 During cross-examination , Marrow was asked:
Q Now the record stands that you fired Miller for two reasons-shortages and
overcharging customers?
A. That's right
s a * s f i 4
Q I want the record to be very clear on this. You stated that one of the reasons
Miller was discharged was that he was charging customers more for milk than he was
submitting to the company, is that correct'
A. That's right. And shortage in the book
Q. In addition to a bookkeeping shortage?
A. Well, it isn't a bookkeeping shortage. He took the money out as far as I am
concerned . There were no mistakes . As far as I am concerned he has got the money.
He paid it back . So he proves that he has taken it out.
GREENWOOD FARMS, INC. 665
arbitration pursuant to which President Marrow and Manager Elmes met with Miller
and two union representatives on December 16. According to Respondent, one of
the issues to be decided is whether "it is appropriate and whether it furthers the
purposes" of the Act for the Board to concern itself with a matter which the "parties
have dealt with in accordance with their contract." 26
The short answer to this contention is that the right of an employee not to be
discriminated against because he engages in activity protected by the Act is not
a contract right but a public right created by the National Labor Relations Act. As
the Court said in Amalgamated Utility Workers, etc. v. Consolidated Edison Com-
pany of New York, Inc., 309 U.S. 261, 265:
... Congress had entrusted to the Board exclusively the prosecution of the
proceeding , the conduct of the hearing, the adjudication and the granting
of appropriate relief. The Board as a public agency acting in the public interest,
not any private person or group, not any employee or group of employees, is
chosen as the instrument to assure protection from the described unfair conduct
in order to remove obstructions to interstate commerce.27
Moreover, in order to enable the Board to perform its duty, Congress gave it
the power to take testimony under oath and to subpena relevant records. And, as
indicated, many of the facts which led me to conclude that the Company violated the
Act discharging Miller came to light only as the result of the cross-examination of
witnesses under oath and the examination of company records which were produced
pursuant to a subpena issued at the request of Miller's counsel. Needless to say,
Marrow and Elmes were not under oath at the meeting on December 16 and neither
Miller nor the Union had the power to subpena company records. This means that
the Union was unaware of all of the facts when it accepted the Company's explana-
tion for Miller's discharge.28
In my opinion, it would thwart rather than effectuate the policies of the Act to
hold that because the parties had a brief discussion of Miller's discharge the Board
should not determine whether that discharge violated the Act. The fact that a major
purpose of the Act is to encourage collective bargaining does not mean that Congress
intended the Board to abdicate to private parties its duty to protect public rights or
that Congress intended the bargaining process to be a substitute for the procedure
established the Act for protecting employees in the exercise of their statutory rights.
III. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, my Recom-
mended Order will direct it to cease and desist from the unfair labor practices herein
found. Because Respondent has demonstrated its willingness to discriminate against
an employee because he seeks to persuade other employees to engage in activity
protected by the Act, the commission of similar unfair labor practices in the future
is reasonably to 'be anticipated. My Recommended Order will therefore also direct
Respondent not to engage in like or related conduct in the future.
I will also include a requirement that Respondent offer Harry Miller immediate and
full reinstatement with backpay, said backpay to be computed in accordance with
the formula set forth in F. W. Woolworth Company, 90 NLRB 289.
The General Counsel has requested that interest at the rate of 6 percent per
annum be added to the net backpay, if any, due Miller. For the reasons stated by
the Board in Isis Plumbing & Heating Co., 138 NLRB 716, issued on September 21,
1962, I find that the allowance of interest is within the Board's powers under Section
10(c) of the Act, and that it is a desirable remedial measure to compensate Miller,
as fully as possible, for any loss resulting from Respondent's discrimination against
him. Accordingly, my Recommended Order will include a provision requiring the
24 Since there is no evidence that Miller filed a written complaint or grievance, I am
not convinced that Miller 's discharge was "handled . . . as a grievance" as asserted by
Respondent.
27 Cf. N.L R.B. v. Newark Morning Ledger Co., 120 F 2d 262, 267-268 (CA. 3)
28 Respondent concedes that if Miller claimed that the Company and the Union "acted
together," the Board should consider the issue of his discharge. Although there is no
evidence that the Union caused the Company to discharge Miller, the record indicates that
the Union accepted the Company's explanation with few or no questions asked Such
ready acquiescence by a union to the discharge of its shop steward is surprising, to say
the least Moreover , the record discloses a possible explanation , namely, Miller's can-
didacy the previous year for union office on the ticket which opposed that on which one
of the union representatives present on December 16 was a candidate.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payment of 6 percent interest on backpay (not compounded), as requested by the
General Counsel.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the
Act.
2. By delaying Harry Miller 's reinstatement at the end of the strike and by dis-
charging him a month later because he sought to persuade the Westchester drivers
to remain on strike, Respondent has engaged in an unfair labor practice within
the meaning of Section 8(a)(3) and ( 1) and Section 2(6) and (7) of the Act.
3. By threatening to "get" Miller at the end of the strike because he sought to per-
suade the Westchester drivers to remain on strike , Respondent has engaged in an
unfair labor practice within the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case , I recommend that the Respondent , Greenwood Farms,
Inc , its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discriminating against employees because they attempt to persuade other
employees to engage in activity protected by the National Labor Relations Act.
(b) Threatening employees with reprisals for attempting to persuade other em-
ployees to engage in activity protected by the National Labor Relations Act.
(c) In any like or related manner interfering with , restraining , or coercing em-
ployees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer Harry Miller immediate and full reinstatement to his former position,
or, if his former job no longer exists, a substantially equivalent position , without
prejudice to his seniority or other rights and privileges , and make him whole in the
manner set forth in the section of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms hereof.
(c) Post at its place of business , copies of the attached notice marked "Appen-
dix." 29 Copies of such notice , to be furnished by the Regional Director for the
Second Region , 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 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.
(d) Notify the Regional Director for the Second Region , in writing , within 20
days from the date of this Intermediate Report and Recommended Order , what steps
Respondent has taken to comply herewith.3°
m If this Recommended Order be adopted by the Board, the words "Pursuant to a De-
cision and Order" shall be substituted for the words "As Recommended by a Trial
Examiner" In the notice. If the Board's Order Is enforced by a decree of a United States
Court of Appeals, the notice will be further amended by the substitution of the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" for
the words "Pursuant to a Decision and Order."
80 If this Recommended Order be adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Region, 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
As recommended by a Trial Examiner of the National Labor Relations Board and
in order to conduct our labor relations in compliance with the National Labor Rela-
tions Act, we notify our employees that:
WE WILL NOT discharge or take any other action against any employee because
he seeks to persuade other employees to engage in union or concerted activity
protected by the National Labor Relations Act.
THE CROSSETT COMPANY 667
WE WILL NOT threaten any employee with reprisals because he seeks to
persuade other employees to engage in union or concerted -activity protected
by the National Labor Relations Act.
WE WILL offer Harry Miller his former position or a substantially equivalent
position, without loss of any rights or privileges he had in such position.
WE WILL make Harry Miller whole for any .loss of pay he may have suffered
by reasons of our discrimination -against him.
GREENWOOD FARMS , INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 745 Fifth
Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any
questions concerning this notice or compliance with its provisions.
The Crossett Company and International Brotherhood of Pulp,
Sulphite and Paper Mill Workers , AFL-CIO
International Woodworkers of America, Local No. 5-475, AFL-
CIO and International Brotherhood of Pulp , Sulphite and
Paper Mill Workers , AFL-CIO. Cases Nos. 26-CA-1213 and
26-CB-182. January 17, 1963
DECISION AND ORDER
On July 6, 1962, Trial Examiner Reeves R. Hilton issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondents filed exceptions to the Inter-
mediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and adopts the findings,
conclusions, and recommendations of the Trial Examiner to the extent
consistent with the decision herein.
The Crossett Company, herein called the Respondent Company or
Crossett, is engaged in the manufacture of lumber, paper, and related
products at Crossett, Arkansas. For 15 years or more Crossett has
been party to various collective-bargaining agreements with the
International Woodworkers of America, Local No. 5-475, AFL-CIO,
herein called the Respondent Union or IWA, covering the employees
engaged in these. operations. Currently, there are approximately 700
employees covered by these collective-bargaining agreements. One
140 NLRB No. 62.