L. E. Farrell Co., Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1965

153 N.L.R.B. 40 (N.L.R.B. 1965)

40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to join, form, or assist any labor organization, or to
refrain from doing so.
SOUTHWESTERN OF DALLAS OPTICAL COMPANY AND TRU-OPTICS, 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, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No.
Edison 5-4211, Extension 2131, if they have any question concerning this notice or
compliance with its provisions.
L. E. Farrell Company, Inc. and Chauffeurs , Teamsters, Ware-
housemen & Helpers, Local Union 597, a/w International
Brotherhood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America. Case No. 1-CA-4678. June 17, 1965
DECISION AND ORDER
On April 6, 1965, Trial Examiner Martin S. Bennett issued his De-
cision in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the Decision and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the Act, as amended,
the National Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel [Members Fanning,
Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the addition noted below.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order t He Order recommended by the Trial Examiner, as modified
herein, and orders that L. E. Farrell Company, Inc., Burlington, Ver-
mont, its officers , agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order, as so modified :
153 NLRB No. 5.
L. E. FARRELL COMPANY , INC. 41
Add the following paragraph as paragraph 2(b) to the Trial Ex-
aminer's Recommended Order , the present paragraph 2(h) and those
subsequent thereto being consecutively relettered :
"(b) Notify the above -mentioned employees if presently serving in
the Armed Forces of the United States of their right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was heard before Trial Examiner Martin S. Bennett at Burlington, Ver-
mont, on November 12 and 13, 1964. The amended complaint' alleges that Re-
spondent, L. E. Farrell Company, Inc., has engaged in unfair labor practices within
the meaning of Section 8(a)(1), (3) and (5) of the Act Briefs have been submit-
ted by the parties?
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
L. E. Farrell Company, Inc. is a Vermont corporation maintaining its principal
office and place of business at Burlington, Vermont, where it is engaged in the bot-
tling, sale, and distribution of soft drinks; it also maintains a distribution warehouse
at Rutland, Vermont, some 70 miles distant Respondent admits that during the year
ending July 31, 1964, it purchased syrup, sugar, bottles, and other products valued
in excess of $50,000 from sources outside the State of Vermont. Respondent further
admits that it is engaged in commerce and I find that its operations affect commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters, Warehousemen & Helpers, Local Union 597, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
Respondent's bottling plant at Burlington, Vermont, was unorganized prior to the
advent of the Union upon the scene. At the time material herein, there were ap-
proximately 13 rank-and-file employees in the bottling plant, excluding drivers and
supervisors.
Around the middle of June 1964, employee Chester Patch, Jr.,3 whose discharge
was litigated herein, became interested in unionizing the plant and contacted Busi-
ness Agent Charles Raymond of the Union. Raymond met with Patch and two
other employees at Patch's home on June 24 or 25. Thereafter, on June 26, an
organizational meeting, arranged by Patch, was held and 10 of the 13 employees in
'Issued October 16, 1964, and based upon charges filed July 21 and September 8, 1964.
2 On December 8, 1964, the General Counsel moved that certain errors in the transcript
of testimony be corrected Proof of service of said motion on Respondent was submitted
and there has been no response. A consideration of said motion and the transcript dis-
closes that the errors are minor and that the motion has merit The motion is granted
and it is hereby received in evidence as Trial Examiner's Exhibit No. 1.
Certain foul language by counsel for Respondent, uttered while highly agitated, appears
in the transcript. It was directed to the General Counsel and, I trust, not Intended for
capture and recording by the court reporter or for hearing by me It has been ignored in
treating with the issues hereinafter.
3 Also appearing in the record as Chester Patch
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unit signed authorization cards. Two more cards were obtained by Patch and
turned in at a meeting he arranged for July 3. It was agreed at that meeting, as
well as the previous one, that if anyone was discharged because of union activities,
all the employees would strike in protest. A meeting on July 8 was also arranged
by Patch.
On July 6 Raymond wrote to Respondent. He stated that a majority of the plant
employees had designated the Union, that an election was being requested, and that
"A representative of the Local will be available to meet with you any mutually
agreeable time and place." No response of any nature was made by Respondent
and Patch was discharged on July 17.
The issues presented herein are: (1) Did Respondent, on and after July 9, 1964,
unlawfully interrogate employees concerning their union activities, indicate that
their union activities were under surveillance, and threaten economic reprisals; (2)
Was Chester Patch, Jr., unlawfully discharged on July 17, 1964; (3) Did Respond-
ent's plant workers at Burlington strike in protest of Patch's discharge and were
they unlawfully discharged because of said concerted activity; and (4) Has Respond-
ent refused to bargain in good faith with the Union as the representative of the em-
ployees in the above-described appropriate unit.
Respondent contends that Patch was discharged for good cause, viz, negligence
and carelessness in the performance of his duties. It further contends that the strike
was unjustified, that the strikers have been replaced, and denies that it has refused
to bargain in good faith.
B. Interference, restraint, and coercion
It is undisputed that the Union's request for a meeting with Respondent was re-
ceived by President Farrell on July 7, 1964, and never replied to. According to
Foreman Alfred Sartwell, Farrell advised him thereof on July 9 and told him that be
was "not supposed to talk to the employees about the Union." Sartwell claimed
that he carried out this instruction. The General Counsel, on the other hand,
adduced the following evidence.
On July 9, according to employee Arnold King, Sartwell asked if he had beard a
rumor that a union was being started, asked what King thought of it, and stated that
his reply would not be relayed to Farrell. King, who had signed an authorization
card on July 2, pleaded ignorance of the matter. Sartwell then stated that be knew
King was familiar with the union activities and that King should tell the other men
that they would only be hurting themselves as well as King. Sartwell also stated
that the workweek would be reduced to 40 hours if the Union entered the plant.
It may be noted that the men averaged at least 15 hours of overtime per week.
On or about July 11, Sartwell asked employee Leonard Martin what he thought
of a union in a small plant and Martin replied that it was as desirable as in a large
plant. Sartwell then asked if Martin knew "who belonged to the Union . . . .
Who started the Union." Martin replied that he knew.
On July 13 or 14, according to Arthur Bassi , Sartwell introduced the topic of the
Union, stating that it would do no good in so small a plant and that it would hurt
more than it would help. Bassi pleaded ignorance of the Union and Sartwell
replied ". . . you know you do." 4
Richard LaPlant testified that Sartwell asked him on July 14 if he was ready for
the Union. LaPlant replied in the affirmative and Sartwell stated that a small plant
was no place for a union, predicting that "a lot of guys will lose their jobs out of it."
On July 14 or 15, Sartwell told Chester Patch that if the Union entered the plant,
it would hurt every man because it would "cut down the time, the wages, cut down
on all the overtime." Sartwell further stated that Patch was in the best position
for promotion to Sartwell's job if the latter left and would be hurt "most of all"
because, with a union, seniority would prevail and employee Myers, with the greatest
plant seniority, would be chosen.
Patch further testified that Sartwell had questioned him about the Union approxi-
mately 11/2 weeks before July 15. On the latter date, Sartwell told him that he
understood President Farrell was putting in a 40-hour week; that he would transport
his product prebottled from another State; that this would reduce the hours worked
and, particularly, all overtime; and that this would adversely affect earnings. Sart-
1 Bassi also testified that Sartwell stated twice during July that the Union would not
"be any good" In a small plant. As I view it, all of this falls under the protection of
Section 8(c) of the Act, except for the additional statement by Sartwell that, contrary
to Bassi's plea of ignorance, he (Sartwell) was aware of the union movement, an indica-
tion that his union activities were under surveillance.
L. E. FARRELL COMPANY, INC. 43
well then asked Patch if he knew anything more "about the Union coming into the
plant" and Patch told him that he did not. I find, on the face of Patch's testimony,
that the two topics, viz, unionization of the plant and an adverse effect on working
conditions, were lumped together in the same conversation.
Gary Sweet, a forklift operator, testified that Sartwell told him on the afternoon
of July 15 that "if the Union got in there, I'd only be getting 30 hours a week and
no overtime." Ronnie Wells testified that in response to a question from a truck-
driver, Sartwell stated on July 15 that a union would not do any good in so small
a plant. About 5 or 10 minutes later, Sartwell approached Wells and asked what
he thought of a union in the plant.
Around 11 a.m. on July 16 Foreman Sartwell approached Richard LaPlant, ac-
cording to the latter, and stated that he assumed LaPlant had heard a rumor circulat-
ing in the plant about the layoff of five men. LaPlant replied that he had. Sartwell
then stated that this was not so "unless the cold weather comes or the Union gets in."
At 11:30 a.m. that same day, LaPlant and Leonard Martin were at work in the
vicinity of Foreman Sartwell. The testimony of LaPlant and Martin is in substantial
agreement that Sartwell spoke to Martin and again adverted to the rumor about five
men being laid off. He stated that the rumor was untrue and, as LaPlant testified,
that there would be no layoffs until cold weather set in "or until the Union gets in."
According to Martin, the phrase was "or if the Union comes in here." 5
According to Mervin Comes, he asked Sartwell on July 16 about the rumor of a
layoff. Sartwell replied that he had been misunderstood. He went on to state "that
if the Union got in there, that Louis [Farrell] would be laying off, and that's some-
thing he's never done before and wouldn't do then, unless the Union got in." 6
On July 17 Patch was discharged and the employees struck and picketed the
plant. The record discloses that all in the unit except Robert Myers joined the
strike. Frederick Brice had been injured on July 10 and went to the plant on the
afternoon of July 17 for his check. Farrell asked him "Are you with them out-
side . . . Did you sign the card?" Brice replied in the affirmative.?
Sartwell was present at the hearing when King, Sweet, and Brice testified and
later denied stating that hours of work would be adversely affected; as noted, Brice
did not attribute any remarks to Sartwell. The latter also denied that he threatened
anyone, that he violated Farrell's instructions, that he discussed the Union with any
employee prior to August 7, or that he conveyed his views on the Union to anyone.
Farrell generally denied discussing the Union with any employees. As indicated,
only one statement is attributed to him.
Bearing in mind that there were 13 in the bargaining unit, the testimony for the
General Counsel discloses that the great majority of them were interrogated or
threatened. Their respective versions disclose a consistent pattern of action by
Sartwell during a brief period directly following the Union's request for a bargain-
ing meeting. Patch was manifestly the most intelligent and articulate of the group
and impressed me as a straightforward and forthright witness. The others were all
young, some of them school dropouts, and they impressed me as endeavoring to tell
the truth. Sartwell was a vague witness and he did admit that he was somewhat
curious as to who was in favor of the Union; this, it is readily apparent, is consistent
with his speaking to almost all in the unit. One is also left with the impression that
Sartwell was perhaps over his head, being thrust si ddenly into something entirely
foreign to him.
I therefore credit the testimony of the witnesses for the General Counsel over that
of Sartwell and Farrell. I find that Respondent has engaged in conduct reasonably
tending to interfere with, restrain, and coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act, thereby violating Section 8(a)(1) in the
following respects: by questioning Arnold King concerning his views about the Union
and announcing a cut in the workweek in the event of unionization; by questioning
Leonard Martin concerning his views on unionization and asking who was in the Union
and who had started it; by telling Arthur Bassi that he knew more about the Union
a Other undisclosed language followed and a fight broke out between Martin and Sart-
well , this resulting in Martin's discharge that day. His discharge is expressly not in
issue her.;,"
BI deem it unnecessary to rely herein upon another conversation between these two on
July 14.
'At the time of the instant hearing , Brice's injury still persisted While the General
Counsel expressly does not claim that he was a discharged striker herein, there is some
evidence that he joined the pickets most briefly on July 23 , and that he was thereafter
refused workmen's compensation benefits The record is incomplete in this area and this
disqualification under Vermont law , if it be such, inequitable or otherwise , is not before me
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than he chose to disclose, thereby indicating that he was under surveillance; by
telling Richard LaPlant that many employees would lose jobs as a result of their
unionization; by telling Chester Patch, Jr., that unionization would result in the loss
of overtime and would remove him as the leading contender for promotion to the
position of foreman; by questioning Patch concerning the union organizational cam-
paign; by telling Richard LaPlant that there would not be a layoff unless cold weather
arrived or the Union came into the plant; 8 by making the same statement to Leonard
Martin in the presence of LaPlant; by telling Gary Sweet that his hours of work
would be reduced to 30 and he would lose all overtime if the Union entered the plant;
by questioning Ronnie Wells concerning the Union; by telling Mervin Comes that
Respondent would lay off employees if the Union entered the plant; and by ques-
tioning Frederick Brice as to whether he was with the strikers and had signed a
union card.
C. The discharge of Chester Patch, Jr.
The General Counsel contends that Patch was discharged because he was the
leader of the union organizational campaign; that he led the campaign is readily
apparent. Respondent claims that he was discharged for passing a contaminated
beverage bottle, this resulting in a tort action against it by a disenchanted consumer.
Patch, an inspector, was discharged on July 17, 1964, after approximately 15
months of employment. He originally was assigned to various tasks such as sorting
bottles, preparing of cartons, and placing of bottles on the machines. Some 8 or 9,
if not 10, months before his discharge, he was transferred to inspection, which, ac-
cording to Farrell, is "a little higher grade job within our organization." In this
operation, Patch and Arthur Bassi shared the inspection job. One would inspect for
2 hours, watching the empty bottles as they passed by on the line, while the other
attended to what is termed the premix syrup. Every 2 hours they would exchange
operations.
Farrell candidly admitted that Patch was assigned to inspection because he was
"quite an intelligent chap . he fit into the picture better than anyone else that
I had in the organization. In other words, it was sort of a promotion type job; it was
a better job." The average pay scale in the plant was $1.25 per hour and this
promotion elevated Patch to a scale of $1.40.
His union activities, in part set forth above, were most prominent. As Farrell
noted, Patch was "intelligent," probably more so than his coworkers, and it is readily
understandable that he was a leader and looked up to by them. It was he who
initially contacted Business Agent Charles Raymond of the Union in June and it was
in Patch's home that the initial organizational meeting was held. Other meetings
were also held in Patch's home. It is clear that he circulated among employees in
this small plant during working hours and at lunchtime and advised them of the time
and place of meetings.
For example, during the workday and lunch period,9 Patch notified employees of
the meeting to be held on June 26 at his home He testified that he observed Sart-
well in the area, some 5 to 15 feet distant. Again he arranged for a meeting on
July 3, speaking with employees during the day and at lunch and testifying that Sart-
well was present and in a position to hear "if he was listening." The July 8 meet-
ing was arranged by Patch during the lunch hour and held at his home. It appears
that at least 10 of the 13 in the unit attended all these meetings with the exception
of the initial meeting on June 24 or 25. Moreover, Patch was the only employee
who procured signed cards, soliciting employees King and Myers on July 2 and 3,
respectively, and turning in these cards on July 3 to Business Agent Raymond. It
is to be noted that Patch, to no avail, complained once or twice a week to Sartwell
about defective wiring and poor drainage in the plant. Of further support to the
General Counsel herein is the fact that the discharge took place in the midst of
Respondent's busy and short summer season. To sum up, he was not only the
leader of the union movement and a pleader for improved working conditions, but
also the liaison man with the union business agent.
Turning to Respondent's case, it is readily apparent that the reason assigned by
it for discharging Patch, viz, missing a contaminated bottle, this leading to a lawsuit,
would constitute good cause for discharge, were it the true reason. But a number
of factors demonstrate that the reason assigned by Respondent was not the true reason
and warrants the conclusion that Respondent chose to avail itself of a fortuitous but
earlier incident which was not attributable to Patch.
8I do not rely herein on the reference to the cold weather
e It appears that all the employees, including Foreman Sartwell, customarily ate lunch
together in one area of the plant.
L. E. FARRELL COMPANY, INC. 45
It is entirely correct that the incident relied upon by Respondent did take place.
A consumer in Rutland, Vermont, purchased a bottle of Respondent's product and
the contents were drunk by one of her children. There was foreign matter in the
bottle and the child allegedly became ill. President Farrell receives daily reports
from Manager Joseph Belfore in Rutland, some 70 miles distant; these are sent out
the previous evening. On July 16 he received the following handwritten note, mailed
on July 15:
It seems a wk. or so ago a Mrs. LeBlanc-Library ave Rutland bought a bottle
of Pepsi, claims it was dirty and her little girl got sick, they took the bottle to
Dr. Beale, health officer, I talked with him he said it was greasy at bottom of
bottle, told her to wait 24 hrs see what would happen, these people are not much
good, character very unreasonable, said they were going to sue me.
JB. [Joseph Belfore]
Farrell did not investigate the matter personally and did not telephone his man-
ager, but relied solely upon what the man deposed. He allegedly considered the
problem all evening, concluded that Patch was the most lax of his inspectors, and
decided to discharge him. He made this decision on the morning of July 17, so
advised Foreman Sartwell, and the latter promptly carried out the discharge. Sart-
well told Patch, according to the latter, that Farrell believed he was responsible for
the dirty bottle. He also suggested that Patch forget the entire matter and that
Farrell would probably give him a recommendation for a position elsewhere. The
following considerations readily come to the fore:
(1) There is not an iota of evidence that Patch was at fault in this incident. In-
deed, there is no way to determine precisely who did the inspection of this bottle.
The only time this may be done is when one happens to detect a dirty bottle as it
passes through the inspection line. Further complicating the matter is the fact that
during the busy season, which this was, Respondent has no policy of rotating stock
so as to use up older merchandise first.
(2) Farrell testified that Patch's attention would be distracted while he was on
inspection duty and that he would look out the window at passing females He
further testified that he told Sartwell 3 months prior to the discharge that they would
have to remove Patch from inspection duties. Nevertheless, he was retained well
into Respondent's short busy season without any warning of discharge.
(3) The fact is that four persons did inspection work. Arthur Bassi and Chester
Patch customarily divided the task and, for brief periods on occasions of relief or
illness, Ronald Norton or Foreman Sartwell would fill in. Farrell contended that
Patch had been warned several times during the 8 to 9 months he was on inspection
work about passing dirty bottles. But the record discloses that these remarks were
not confined Patch but were directed to all who did inspection work, including Bassi,
Norton, and Sartwell.
(4) Farrell contended that when Bassi alone did inspection work, prior to Patch's
promotion to this post, there were no complaints about dirty bottles. However,
Bassi disagreed, testifying that when he first started inspecting in April 1963, Sart-
well brought him a bottle with a razor blade in it. Again, in May, Farrell warned
him, showing him a dirty bottle; a third complaint or warning was given around the
first of July. At least the first two bottles had gone through Bassi, as he was alone
at the post at the time. Indeed, even the note of July 15, 1964, relied upon by
Farrell in discharging Patch, was not only shown to Patch but to Bassi and for that
matter to Sartwell, as well. It also appears that dirty bottles are not uncommon,
according to Bassi, and during the summer season there are at least 30 to 40
rejects per day, according to Farrell. And Foreman Sartwell at no time recom-
mended the discharge of any inspector.
(5) Farrell conceded that Patch's work, other than inspection, was good. When
asked why he did not assign Norton, a machine operator and part-time inspector
whom he considered to be an excellent inspector, to this work, he responded that he
was not impressed with Norton's work on premix and that he considered Patch
superior at that portion of his duties. Moreover, Patch received a pay raise when
assigned to work as an inspector.
Yet, -s recently as 1 month before Patch's discharge, Norton testified he was
assigned to inspecting; Sartwell pointed out to him that a bottle with a cork in it had
been passed and stated that Norton should watch his bottles more closely. Stated
otherwise, it would seem that in a high-speed production line as this, Respondent
strove to eliminate an occasional dirty bottle, but a certain minute percentage of
these get by regardless of who is inspecting.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(6) Respondent makes much of this Rutland incident as the immediate cause of
Patch's discharge. Yet, it is in this precise area that its case is wanting. Respond-
ent contends, in effect, that this was a cogent and current matter of great import.
Its Rutland manager is in daily communication with Farrell and sent the crucial note
on July 15. Farrell received it on July 16 and showed it to both Bassi and Patch,
assigning responsibility to neither. He debated the matter overnight and decided
on the morning of July 17 that Patch was the more likely culprit. At that point he
decided to discharge him.
But the facts to support Respondent as to the urgency and currency of the matter
are basically lacking. The record discloses that this incident took place much earlier,
specifically, on June 22. Thus, Charlotte LeBlanc of Rutland, the woman referred
to in the note, testified, on rebuttal for the General Counsel, that her daughter be-
came ill after drinking a bottle of the product, that this took place on June 22, that
she telephoned Manager Joseph Belfore in Rutland that very same day, that she told
him what had happened, and that he advised her to take the bottle to Burlington."
She was not questioned concerning the merits of her private lawsuit.
Be that as it may, this was allegedly a matter of great urgency, according to Re-
spondent, but Belfore did not see fit to communicate with Farrell until July 15, over
3 weeks later. This hardly supports Respondent herein. Indeed, Farrell did not
investigate further and did not even telephone Belfore in the matter. While the
incident clearly did take place, I find that it occurred on June 22 and that Respond-
ent was informed thereof on that date by LeBlanc. Were this a matter as serious
as contended by Respondent, it would logically follow that Farrell would have been
advised thereof forthwith. Indeed, it is not contended that Belfore, who did not
testify herein, was derelict in this area. The inference is warranted, therefore, that
Respondent attempted to postdate the matter to a day immediately prior to the
decision to discharge Patch.
And, even on the posture most favorable to Respondent, it would follow that the
note, based on its content, was sent at the end of June or the first of July. Respond-
ent did nothing about it until the union organizational campaign, spearheaded by
Patch, commenced later in July. This activity was being conducted openly in the
plant and Patch was abruptly discharged about 1 week later without any warning
thereof.
To sum up, Patch's prominence in the union campaign, his known leadership
among the men, Respondent's demonstrated hostility to the union organizational
campaign, the evidence that dirty bottles were not rare and that fault was difficult to
assess, and the demonstrated lack of timeliness to the reason assigned by Respondent,
convince me that Respondent's assigned reason is pretextuous in nature. Indeed,
even Foreman Sartwell, on July 14 or 15, noted that Patch was the logical candidate
to replace him as foreman. I find, on a preponderance of the evidence, that Patch
was selected for discharge because of his prominent union activities and that Re-
spondent has thereby discriminated with respect to the hire and tenure of his em-
ployment within the meaning of Section 8(a)(3) of the Act. I further find that
Respondent has thereby engaged in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
D. Discharge of the strikers
Chester Patch, Jr., was discharged shortly before 9 a.m. on July 17, 1964. The
record amply discloses that at several of the previous union meetings on June 26 and
in July, the employees had expressed concern over the possibility of discharge be-
cause of their union activities. It had accordingly been agreed among them that
they would walk out if anyone was so discharged. Therefore, about 9:30 a.m., as
Patch left the premises, nine of those in the bargaining unit walked out with him
in protest of his discharge. There is much testimony that they considered Patch to
have been unjustly discharged and that, pursuant to their prior agreement, this was
the reason why they walked out. The names of those who struck are Bernard
Couture, Ronald Norton, Arthur Bassi, Frank Whitehouse, Ronald Wells, Gary
Sweet, Mervin Comes, Richard LaPlant, and Arnold King."
Business Agent Charles Raymond contacted President Farrell that afternoon, but
his request that Patch be reinstated was refused. The strike is still being carried on.
10 Apparently to the State health department.
11 The other three in the unit were Leonard Martin , discharged the previous day ; Fred-
erick Brice , who had been injured earlier that month and had not returned to work ; and
Robert Myers , the lone nonstriker.
L. E. FARRELL COMPANY, INC. 47
On July 17 Respondent's ..ounsel wrote to the Regional Office of the Board, with
a copy to the Union, offering to reinstate all strikers, but not Patch, if they returned
by Monday, July 20, stating that they otherwise were to be "permanently replaced."
President Farrell admitted herein that the strikers were permanently replaced in July.
I find, therefore, that tha nine named strikers were unfair labor practice strikers.
I find further that they were discharged on July 20, 1964. As peaceful unfair labor
practice strikers, they were immune to permanent replacement and it follows that
by discharging them for engaging in these concerted and union activities, Respondent
has engaged in unfair labor practices within the meaning of Section 8(a)(3) and
8(a)(1) of the Act. N.L.R.B. v. Samuel J. Kobritz, d/b/a Star Beef Company,
193 F. 2d 8 and 201 F. 2d 156 (C.A. 1) ; N.L.R.B. v. M & M Bake, ies, Inc, 271
F. 2d 602 (C.A. 1); N.L.R.B V. New England Tank Industries, Inc., 302 F. 2d 273
(C.A. 1), cert. denied 371 U.S. 875; Big Town Super Mart, Inc., 148 NLRB 595,
and Dubo Manufacturing Corporation, 148 NLRB 1073.
E. The refusal to bargain
1. Appropriate unit
The complaint alleges, Respondent's answer admits, and I find, that all plant
workers at Respondent's Burlington, Vermont, plant, excluding office clerical em-
ployees, route salesmen , professional employees, guards, all other employees and all
supervisors, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
2. Majority representation
Respondent admits that there were 13 employees in the above-described unit as
of the week ending July 6, 1964. As evidence of the Union's majority representa-
tion in said unit, the General Counsel offered in evidence 12 signed and dated cards
authorizing the Union to represent the signers for the purposes of collective bargain-
ing; 10 of these cards were signed at the union meeting held on June 26; 2 more
were signed on July 2 and 3, respectively. Respondent did not challenge the
authenticity of the cards and no objection was raised to their receipt in evidence.
The signer of each card, or a witness who witnessed the signature, was available for
cross-examination. Indeed, all those who struck on July 17 were among the signers,
with one exception.
I find, in view of the foregoing facts, that these cards constitute reliable evidence
of the Union's majority status. Indeed, Respondent has never voiced any doubt as
to the Union's majority. I find that on July 6, 1964, the Union was, and now is,
the exclusive representative of the employees in the above-described appropriate
unit, within the meaning of Section 9(a) of the Act.
3. Refusal to bargain
Respondent admits that on July 7, 1964, it received a letter sent by the Union on
the previous day. Therein, Respondent was notified that the Union represented a
majority of the "plant employees"; the letter closed with the statement "A representa-
tive of the Local will be available to meet with you at any mutually agreeable time
and place."
There was never any reply by letter or other means. I find that Respondent
ignored this request for recognition . While counsel for Respondent offered, in a
letter of July 17, to consent to an election during the week of August 3, this does
not constitute a defense . There is not an absolute right to an election , particularly
so where Respondent , as set forth above, also engaged in a course of conduct viola-
tive of Section 8(a)(1) and 8 ( a)(3) of the Act reasonably calculated to dissipate
the union majority. In this respect , reference is made to the previously found viola-
tions of Section 8 (a) (1) of the Act as well as the discriminatory discharge of Chester
Patch, Jr. I find that on and after July 7, 1964, Respondent has refused to bargain
with the Union , thereby engaging in unfair labor practices within the meaning of
Section 8 (a)(5) and, derivatively , Section 8 ( a)(1) of the Act. N.L.R B. v. Green-
field Compone.s Corporation, 317 F. 2d 85 (C.A. 1); Florence Printing Co. v.
N.L.R.B., 333 F. 2d 289 (C.A. 4); N.L.R.B. v. Nelson Manufacturing Company, 326
F. 2d 397 (C.A. 6); N.L.R.B. v. Trimfit of California, 211 F. 2d 206 (C.A. 9); Joy
Silk Mills, Inc. v. N.L.R.B., 185 F. 2d 732 (C.A.D.C.) cert. denied 341 U.S. 914;
Maphis Chapman Corporation, 151 NLRB 75; Lewis Roberts, Inc., 150 NLRB 1176;
Frank C. Varney Co., Inc., 151 NLRB 280; and Dazzo Products, Inc., 149 NLRB 182.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in connec-
tion with its operations 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 Respondent has engaged in unfair labor practices, I shall rec-
ommend that it cease and desist therefrom, and that it take certain affirmative action
designed to effectuate the policies of the Act. I shall recommend that Respondent
offer to Chester Patch, Jr., and to the employees named in the attached Appendix,
upon unconditional application by the latter, immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to seniority or
other rights and privileges, discharging, if necessary, any replacements in order to
reinstate said discharged strikers. See The Chase National Bank of the City of
New York, San Juan, Puerto Rico, Branch, 65 NLRB 827.
I shall further recommend that Respondent make each of them whole for any
loss of pay suffered by reason of the discrimination against them. Said loss of pay,
plus interest at 6 percent, shall be computed on a quarterly basis as established by
the Board in F. W. Woolworth Company, 90 NLRB 289. See N.L.R.B. v. Seven-up
Bottling Company of Miami, Inc., 344 U.S. 344. In the case of the discharged
strikers, backpay shall commence from the date they make unconditional application
for reinstatement. See Liberty Electronics Corp., et al., 138 NLRB 1074.12
I shall further recommend that Respondent, upon request, be ordered to bargain
with the Union as the representative of its employees in the unit heretofore described
concerning rates of pay, wages, hours, and other terms and conditions of employ-
ment and, if an understanding is reached, embody such understanding in a signed
agreement.
The unfair labor practices committed by Respondent involve a pretextuous dis-
charge and conduct in derogation of the principles of good-faith collective bargain-
ing. These demonstrate the need for an order coextensive with the threat of future
violations and I shall therefore recommend a broad cease and desist order.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. L. E. Farrell Company, Inc. is an employer within the meaning of Section
2(2) of the Act.
2. Chauffeurs, Teamsters, Warehousemen & Helpers, Local Union 597, a/w In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America is a labor organization within the meaning of Section 2(5) of the Act.
3. By discharging Chester Patch, Jr., on July 17, 1964, Respondent has engaged
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
4. The strike of July 17, 1964, was an unfair labor practice strike.
5. By discharging the nine persons named in the attached Appendix, Respondent
has engaged in unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
6. All plant workers at Respondent's Burlington, Vermont, plant, excluding office
clerical employees, route salesmen, professional employees, guards, and all other
employees and supervisors, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act.
7. Chauffeurs, Teamsters, Warehousemen & Helpers, Local Union 597, a/w In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America has been since July 6, 1964, and now is, the exclusive representative of the
employees in the above-described appropriate unit within the meaning of Section
9(a) of the Act.
8. By failing and refusing to bargain in good faith with the Union as the repre-
sentative of the employees in the above-described appropriate unit, Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act.
9. By the foregoing, by interrogating employees concerning their union member-
ship and activities, by indicating that the union activities of the employees were
12 The General Counsel has urged that backpay for the discharged strikers run from the
date of their discharge. In the last cited decision, the Board expressly reversed a docu-
mented recommendation to this effect by the Trial Examiner
L. E. FARRELL COMPANY, INC. 49
under surveillance, and by threatening employees with economic reprisals if the
Union were selected, Respondent has engaged in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
10. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
hereby recommended that Respondent, L. E. Farrell Company, Inc., Burlington,
Vermont, its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in Chauffeurs, Teamsters, Warehousemen & Help-
ers, Local Union 597, a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or in any other labor organization of its
employees, by discharging employees or discriminating in any other manner in regard
to hire or tenure of employment, or any term or condition thereof, except to the
extent permitted under Section 8 (a) (3) of the Act.
(b) Refusing to recognize and bargain with the above-named labor organiza-
tion as the exclusive representative of its employees in the appropriate unit de-
scribed above.
(c) Interrogating employees concerning their union membership and activities,
indicating that their union activities were under surveillance, threatening employees
with economic reprisals if they select a union, or in any other manner interfering
with, restraining, or coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8(a)(3) of the Act.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Offer to Chester Patch, Jr., and to the nine employees named in the attached
Appendix, upon unconditional application by said nine, immediate and full rein-
statement to their former or substantially equivalent positions without prejudice to
seniority or other rights and privileges, and make them whole for any loss suffered
by reason of the discrimination against them, in the manner set forth above in the
section entitled "The Remedy."
(b) Upon request, bargain collectively with the above-named labor organization
as the exclusive representative of the employees in the above-described appropriate
unit with respect to rates of pay, wages, hours of work, or other terms and condi-
tions of employment, and, if an understanding is reached, embody such understand-
ing in a signed agreement.
(c) Preserve and, upon request, make available to ttie 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 determine
the amounts of backpay due under the terms of this Recommended Order.
(d) Post at its plant in Burlington, Vermont, copies of the attached notice marked
"Appendix." 13 Copies of said notice, to be furnished by the Regional Director for
Region 1, shall, after being duly signed by Respondent, be posted by it 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 Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
is In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
79 6-027-6 6-v of 153--5
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for Region 1, in writing, within 20 days from
the date of receipt of this Decision, what steps it has taken to comply herewith.14
"In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read "'Notify said Regional Director, in wilting , within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that.
WE WILL NOT discourage membership in, or activity on behalf of, Chauffeurs,
Teamsters, Warehousemen & Helpers, Local Union 597, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
or any other labor organization of our employees, by discriminating in any
manner in regard to hire or tenure of employment, or any term or condition
thereof, except to the extent permitted under Section 8(a)(3) of the Act
WE WILL offer reinstatement to Chester Patch, Jr., and to the nine employees
named below, upon unconditional application by the latter, to their former or
substantially equivalent positions without prejudice to seniority or other rights
and privileges, and we will make them whole for any loss of pay suffered by
reason of our discrimination against them.
Richard Couture Frank Whitehouse, Jr. Mervin Comes
Ronald Norton Ronald Wells Richard LaPlant
Arthur Bassi Gary Sweet Arnold King
WE WILL, upon request, bargain with Chauffeurs, Teamsters, Warehouse-
men & Helpers, Local Union 597, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, as the exclusive representa-
tive of our employees in the unit described below, with respect to rates of pay,
wages, hours of work, or other terms and conditions of employment, and, if
an understanding is reached, embody such understanding in a signed agreement.
The unit is:
All plant workers at our Burlington, Vermont, plant, excluding office
clerical employees, route salesmen, professional employees, guards, and
all other employees and supervisors.
WE WILL NOT interrogate our employees concerning their union membership
and activities, indicate that their union activities are under surveillance, threaten
them with economic reprisals if they select a union, or in any other manner in-
terfere with, restrain, or coerce our employees in the exercise of their right
to self-organization, to form labor organizations, to loin or assist the above-
named or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a)(3) of the National
Labor Relations Act, as amended.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
L. E. FARRELL COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-We will notify any of the above-named employees who may be presently
serving in the Armed Forces of the United States of their right to full reinstatement
upon application after discharge from the Armed Forces in accordance with the
Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended.
ONEITA KNITTING MILLS, INC. 51
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, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele-
phone No. 523-8100, if they have any questions concerning this notice or compliance
with its provisions.
Oneita Knitting Mills, Inc. and International Ladies' Garment
Workers' Union, AFL-CIO. Cases Nos. 11-CA-2350, 11-CA-
2390, and 11-CA-2467. June 17,1965
DECISION AND ORDER
On March 22, 1965, Trial Examiner Martin S. Bennett issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief and the Charging Party
filed a brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejuricial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
these cases, and adopts the findings, conclusions, and recommendations
of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that Respondent, Oneita Knitting Mills, Inc.,
Andrews, South Carolina, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as so modified :
1. Add the following as paragraph 2(b) to the Trial Examiner's
Recommei,aed Order, the present paragraph 2(b) and those sub-
sequent thereto being consecutively relettered:
'(b) Notify the above-namned employees, if presently serving in the
Armed Forces of the United States, of their right to full reinstatement
153 NLRB No. 4.