Mister Softee of Michigan, Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1961

131 N.L.R.B. 214 (N.L.R.B. 1961)

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonstriking employees of the Association and those who fail or refuse to participate
in picketing or other forms of concerted activity . Affirmatively I shall recommend
that appropriate notices be posted by Respondent at its place of business . 1 shall
not, however , require that such notices be furnished the member restaurants of the
Greater Peoria Restaurant Association for posting by them if they so choose. The
record in the instant case indicates that the membership of this Association is so
fluid as to cast doubt on who should be furnished notices for posting; furthermore,
the administrative details, including preparation and distribution of notices and
verification of compliance, should not , in my judgment , be used in remedying mat-
ters of such slight significance in the effectuation of the Act 39
CONCLUSIONS OF LAW
1. Cooks, Waiters and Waitresses Union, Local 327, and Peoria Local Joint
Executive Board , Hotel and Restaurant Employees International Union , are labor
organizations within the meaning of Section 2(5) of the Act.
2. Greater Peoria Restaurant Association is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
3. By making threats of reprisal against nonstriking employees and those who
failed or refused to participate in picketing or other concerted activity or who sought
to withdraw from such activity during the course of a strike it was conducting
against Greater Peoria Restaurant Association, the Respondent restrained and
coerced employees in the exercise of their rights guaranteed by Section 7 of the Act
and it thereby violated Section 8 (b)(1) (A) of the Act.
4. The aforesaid practices are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
80 Cf N L R B. v . Crompton-Highland Mills, Inc, 337 U S. 217 , 226, rehearing upon
Court's refusal to require posting of notice denied 337 U S 950.
Mister Softee of Michigan , Inc. and Charles Neal. Case No.
7-CA-2840(2). April 24, 1961
DECISION AND ORDER
On January 26, 1961, Trial Examiner James T. Rasbury issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. The Respondent and the General Counsel filed
exceptions to the Intermediate Report.
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 Intermedi-
ate Report, the parties' exceptions, and the entire record, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following additions and modifications:
1. We agree with the Trial Examiner's finding that Respondent dis-
charged Charles Neal on June 27, 1960, in violation of Section 8 (a) (3)
131 NLRB No. 35.
MISTER SOFTEE OF MICHIGAN, INC. 215
and (1) of the Act.' In this connection, it is clear from the record,
though not fully documented in the Intermediate Report, that the Re-
spondent believed Neal was an active union adherent? For example,
on one occasion early in June 1960, Respondent's general manager, Sol
Moretsky, came over to Neal's truck and told him he did not want Neal
"scouting" for the Union and signing up members. Neal denied that
he had "scouted," but admitted that he had talked to the Union about
joining. - Neal told Moretsky he would not quit, but that Respondent
could fire him if his work was not satisfactory.3 Moretsky replied,
"Well, I'm not going to fire you, but I'm going to ride your back until I
find something to fire you for."
On June 11, 1960, when Neal had occasion to complain to Respond-
ent's president, Nick Annis, about discipline that he considered unjust,
Annis asked Neal whether he thought the discipline was "because of
the Union." Neal replied, in effect, that such a connection appeared
possible, whereupon Annis stated that he did not care whether the
employees had a union or not, because if they did, he would merely re-
turn the trucks to the owners.4 Annis pointed out that the drivers
would be the only ones hurt, because they would lose their jobs.
Shortly thereafter, during the same conversation, Annis asked Neal,
"Well, if you don't like the company's policy, why don't you quit?"
On June 17, 1960, Moretsky reproached Neal for having left his
truck, purportedly to get change from a taxicab driver. Moretsky
wanted to know whether there was a union man in the taxicab, and
repeated his earlier statement that the best thing for Neal to do was
quit. Moretsky added that if Neal did not quit, he would "ride his
back" until he did.
In view of the above, and the other evidence contained in the
Intermediate Report, we adopt the Trial Examiner's finding that
Respondent's discharge of Neal on June 27, 1960, was for reasons
relating to his union activity, and therefore violated Section 8(a) (3)
and (1) of the Act.
1 The Trial Examiner credits Neal 's testimony with respect to his June 27 discharge.
However, he quotes Neal as having testified that Moretsky , Respondent' s general manager,
told him "he ( Neal ) had not reported to work the day before and had therefore been
regarded as a quit " Neal actually testified that Moretsky said, "I didn 't receive any
message, and as far as I'm concerned you're fired ." This corrected version further sup-
ports our finding, and that of the Trial Examiner , that Neal was discharged and did not
quit on this occasion.
Respondent in its exceptions correctly notes that , according to the record , Managers
Goudreau and Moretsky switched locations approximately every month , and not every
3 or 4 months, as stated in the Intermediate Report. However , this and several other
minor factual errors which we have found in the Intermediate Report have no bearing on
the unfair labor practice findings made herein.
2 "Union" is used herein to refer to International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Ind., which had just begun an organizational
drive among Respondent 's driver-salesmen
3 Respondent concedes that Neal was one of its top driver -salesmen , and had received
two awards for his efforts.
A It appears that the trucks driven by Neal and Respondent 's other driver-salesmen were
owned by individual investors.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner found, and we agree, that Respondent com-
mitted an independent violation of Section 8(a) (1) by directly threat-
ening employees with discharge if they joined or supported the
Union. The Trial Examiner did not, however, find certain other in-
dependent violations of Section 8 (a) (1) alleged in the complaint, and
to this the General Counsel excepts. We find merit in the General
Counsel's exception.
As indicated above, on June 11, 1960, Annis, Respondent's presi-
dent, told Neal that if the Union came in the trucks would revert to
the owners. Such a move, he said, would result in loss of employ-
ment to the drivers. A similar remark was made by Goudreau,
another of Respondent's officers, in the course of a conversation with
several of the drivers. In our view, these remarks constituted threats
of economic reprisal if the employees should bring in the Union, and
as such independently violated Section 8 (a) (1).5
On several occasions in June 1960, Respondent's general manager,
Moretsky, told Neal he would "ride his back" until he quit, or until
Respondent would have occasion to fire him. Both these statements
were made during conversations relating to Neal's union activities.
Under the circumstances, we believe that Moretsky's remarks consti-
tuted thinly veiled threats to make Neal's working conditions more
onerous because of his suspected union activities. We find that these
remarks by Respondent constituted additional violations of Section
8(a) (1) .'
ORDER'
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Mister Softee of
Michigan, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in, and activities on behalf of, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Ind., or any other labor organization of its em-
ployees, by discriminatorily discharging any employee, or by other-
6 See Hugh Major, d/b/a Hugh Major Truck Service, 129 NLRB 322; Sunri8e Lumber &
Trim Corp., 115 NLRB 866, 877, enfd 241 F. 2d 620 (CA 2), cert denied 355 U S 818.
" See Empire Manufacturing Corporation , 120 NLRB 1300, 1317, enfd . 260 F. 2d 528,
529 (C A 4).
7 The General Counsel excepts to the Trial Examiner 's recommendation that Respondent
be required to post the remedial notice for only 30 days we find merit in this exception,
and shall provide for the usual 60-day posting period . However, as Respondent 's business
is seasonal , we shall order that the 60-day posting period begin when Respondent's busi-
ness is in full operation . See Charbonneau Packing Corporation, 95 NLRB 1166;
Southern Fruit Di8tributor8, Inc., 81 NLRB 259, 260.
Because the character and scope of the unfair labor practices found to have been en-
gaged in by the Respondent go to the very heart of the Act, we shall order the Respondent
to cease and desist from in any manner interfering with, restraining , and coercing the
employees in their rights guaranteed by Section 7 of the Act. N L.R B. v. Entwistle
Mfg Co., 120 F. 2d 532 (C.A. 4).
MISTER SOFTEE OF MICHIGAN, INC. 217
wise discriminating against employees, in regard to hire, tenure, or
other terms or conditions of employment, except as authorized by
Section 8 (a) (3) of the Act, as amended.
(b) Threatening employees with discharge or loss of employment
in the event the aforementioned Union should become the bargaining
representative, or threatening employees with more difficult working
conditions, or other economic reprisals, because of their union activi-
ties or affiliations.
(c) In any other manner interfering with, restraining, or coercing
employees in the right to self-organization, to form labor organiza-
tions, to join or assist International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Ind., or any
other labor organization, to bargain collectively through representa-
tives 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 or all such activities, except as
authorized in Section 8 (a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Charles Neal immediate and full reinstatement to his
former job as a driver-salesman,' without prejudice to his seniority
or other previous rights and privileges, and make him whole in ac-
cordance with the Board's remedial policies (The Chase National
Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827; Crossett Lumber Company, 8 NLRB 440; F. W. Wool-
worth Company, 90 NLRB 289) for any loss of pay he may have suf-
fered by reason of the discrimination against him.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all records necessary to analyze the amount of backpay due.
(c) Post at its headquarters, as well as at all depots or garages from
which the driver-salesmen normally depart and return with their
trucks, copies of the notice attached hereto marked "Appendix." I
Copies of said notice, to be furnished by the Regional Director for
the Seventh Region, shall, after being signed by Respondent's author-
ized representative, be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it until said notice shall have
been posted for 60 consecutive days while Respondent's business is
in full operation. Said notices shall be posted in conspicuous places,
8 Such offer of employment shall be made at the start of the next seasonal operation
following issuance of this Decision and Order, or, if operations have already commenced
for the present season , shall be made immediately.
9In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted 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."
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'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.
(d) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
CHAIRMAN MCCIILLOCH and MEMBER BROWN took no part in the
.consideration of the above Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage membership in, and activities on be-
half of, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Ind., or any other labor
organization of our employees, by discriminatorily discharging
any employee, or by otherwise discriminating against employees
in regard to hire, tenure, or other terms or conditions of employ-
ment, except as authorized by Section 8 (a) (3), of the Act, as
amended.
WE WILL NOT threaten employees with discharge or loss of em-
ployment in the event the Union should become the bargaining
representative, or threaten employees with harassment or eco-
nomic reprisals because of their union activities or affiliations.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the right to self-organization, to form labor
organizations, to join or assist International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Ind., or any other 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 pro-
tection as guaranteed in Section 7 of the Act, or to refrain from
any and all such activities, except as authorized in Section
8(a) (3) of the Act, as amended.
WE WILL offer to Charles Neal immediate and full reinstate-
ment to his former job as driver-salesman , without prejudice to
his seniority or other previous rights and privileges.
WE WILL make Charles Neal whole for any loss of pay he may
have suffered by reason of the discrimination against him.
MISTER SOFTEE OF MICHIGAN, INC. 219'
All our employees are free to become or to remain members of the
above-named Union or any other labor organization.
MISTER SOFTEE OF MICHIGAN, INC.,
Employer.
Dated- --------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days during the height of the
season, and must not be altered , defaced , or covered by any other
material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding 1 with all parties represented was heard before the duly designated
Trial Examiner in Detroit, Michigan, on November 14, 1960, on the complaint of the
General Counsel and answer of Mister Softee of Michigan, Inc., herein called the
Respondent. The issues litigated involve the alleged violation of Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended, herein referred to as the Act.
Upon consideration of the entire record, the oral argument, the briefs filed, and my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation maintaining its principal office and place of busi-
ness at 11534 Dexter Avenue, in the city of Detroit, Michigan. At all material times
hereto the Respondent has engaged in the manufacture, sale, both retail and whole-
sale, and distribution of dairy and related products such as ice cream mix, topping,
containers, and other goods and materials valued in excess of $50,000 which goods
and materials were transported to Respondent's Detroit location directly from States
of the United States other than the State of Michigan. Upon these admitted facts I
find the Respondent to be an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Ind., herein called the Union, is and has been at all times material herein
a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The Charging Party, Charles Neal, last worked for the Respondent on June 25,
1960 2 The General Counsel alleges that on or about June 27, the Respondent dis-
charged and has failed to reemploy Charles Neal because of his union activities. The
General Counsel also alleges other independent acts by the Respondent's supervisors
alleged to be violative of 8(a)(1) of the Act. The Respondent denies the discharge
of Charles Neal and contends that he quit.3 The issue is factual and can only be
determined by resolving credibility of the various witnesses.
'At the hearing Melvin Crane failed to appear and counsel for the General Counsel
moved to have Case No. 7-CA-2840(1) and all allegations In the complaint exclusively
relating to Melvin Crane withdrawn from the instant case. The General Counsel also
moved to delete or strike paragraph 8-c of the complaint in the absence of proof. The
Respondent's counsel voiced no objections to the General Counsel's request and the motions
were granted The caption of the case has been corrected to reflect the effect of the
motions granted.
a All dates hereinafter are 1960 unless otherwise indicated.
s The Respondent's answer (General Counsel's Exhibit No 1 i) and the evidence pre-
sented at the hearing are not consistent on this point. The answer (paragraph num-
bered 9 ) admits the discharge of Neal on June 27, but says that It was for just and suffi-
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Background
Neal was employed by the Respondent as a driver -salesman of a neighborhood ice
cream dispensing truck . Each morning the driver-salesmen report to the depot or
garage where the trucks are kept overnight and there they clean , sanitize , and stock
their truck for the respective days' sales and depart to a designated area in the city.
At the designated area the driver -salesmen follow a prescribed route making sales of
ice cream , sundaes, malted milk, etc., to the children and other customers in the
designated neighborhood . The driver-salesmen are paid a prescribed percentage of
their gross sales . The Respondent exercises substantial control over the activities of
the Charging Party and other driver-salesmen in a similar capacity and there is no
issue involved herein as to these "employees " being independent contractors
C. Company knowledge
Knowledge on the part of responsible Respondent 's supervisors of the activity and
interest of the Union in organizing the employees appears in the record undenied. For
example, witnesses Neal, Allen, Caruso, and Reach each testified that Richard
Goudreau made a derogatory comment about the Union and said "if anybody joined
with the union they would be fired." This occurred shortly after the first organizing
effort by the Union. While Goudreau denies the particular comment he admitted
having made a remark to the employees concerning their interest in the Union and
also expressed the opinion that Respondent had benefits that exceeded those of some
organized companies . Furthermore , Elmer Kragh , the union business agent, testified
that he had several discussions with Sol Moretsky, an officer of Respondent, concern-
ing the Union representing the employees. This was not denied. From these undis-
puted and undenied facts, I find that Respondent had knowledge on or about June 1
that the Union was interested in representing Respondent's employees and the em-
ployees were interested in the Union.
D. Events prior to discharge
The employees reported to the garage or depot at varying times, apparently depend-
ing to a large degree on the distance to be traveled from the garage to the designated
area to which the driver -salesmen might be assigned , but there was agreement between
the parties that 10:30 a.m. was about the latest that a driver could report for work
without receiving some chastisement from the Respondent. According to Neal, he
reported for work on June 11 at 10:45 a.m. On this occasion he was unable to locate
his truck and when he told Richard Goudreau, the general manager of the garage,
Goudreau told him that his truck had been turned over to someone else because of
Neal's tardiness and that Neal was to take 3 days off. Neal objected to the 3 days'
layoff because June 11 was on a Saturday and the weekend was of course the most
lucrative period of time in which to work. Because of this he complained to Nick
Annis, president of Respondent , who interceded for Neal to some extent , but before
the matter was entirely straightened out the 3 days had passed and Neal "apologized"
to Goudreau and returned to work.4
Goudreau 's testimony surrounding the June 11 incident is not substantially different
from that of Neal, except that he indicates that Neal was late on June 8 and received a
warning and further that instead of reporting for work on June 11 at approximately
10.45, Neal came to work about 11 or 11:15 a.m.
Sol Moretsky, vice president and route manager, was in charge of the garage out of
which Neal worked on June 17. (The Respondent has two garages or locations within
the city of Detroit and apparently Moretsky was in charge of one location and
Goudreau was in charge of the other, but they made it a practice to switch every 3
or 4 months.) Sometime during the afternoon on this date, Moretsky, while out
checking on the trucks, saw Neal away from his truck and an argument ensued.
According to Neal's testimony, he had stepped away from his truck in an effort to
obtain some needed change from a taxicab driver. In the course of obtaining the
change, the taxicab driver had inquired concerning the location of a particular street
dent cause, unrelated to union activity. At the hearing Neal's supervisor testified that
he did not discharge Neal , but merely asked him to bring a doctor's certificate verifying
his absence due to illness before returning to work and that Neal had never returned
to work
' Neal testified that he apologized to Goudreau because he was asked to do so by Aunts,
the president Goudreau testified that on the occasion of the June 11 incident, Neal
swore at him and that Neal had apologized because of the language directed toward
Goudreau In view of Respondent 's defense , i.e , that Neal quit and was not discharged,
the matter is irrelevant and immaterial to a determination of the basic issue
MISTER SOFrEE OF MICHIGAN, INC. 221
and Neal had given him directions. As Neal returned to the truck Moretsky ap-
proached him and complained because the truck was dirty and Neal had left the
truck unattended. Moretsky accused Neal of having talked to the taxi driver because
he was a union friend and asked Neal why he did not quit. Furthermore, Moretsky
told Neal that he was going to ride his back until he quit. Moretsky of course denies
the union conversation but does admit having chastised Neal severely for being away
from his truck and stated that it was against company policy to be away from the
truck except in an extreme emergency.5 The June 17 incident ended without defini-
tive action by the Respondent.
E. The discharge
Neal apparently continued to work until June 25. On Sunday, June 26, Neal did
no report to work because of a bad cold. He testified that he called the office to
report his illness and in the absence of the manager, Moretsky, he spoke to the man
who takes care of the supplies and asked that he advise Moretsky of his illness. On
June 27, he was still ill and called to report his illness and talked to Moretsky. On
this occasion according to Neal, Moretsky told him that he (Neal) had not reported
to work the day before and had therefore been regarded as a quit. Neal tried to
reach Annis that same day but was unable to do so. On the following day, June 28,
he talked to Annis seeking to have the matter straightened out. Annis advised Neal
that Moretsky was in charge of the east side personnel and that he was not going to
interfere with Moretsky's decision.
Moretsky testified that Neal had been absent on April 25 and 26 and May 2, 3, 9,
and 10. Thus when Neal failed to report to work on Sunday, June 26, Monday,
the 27th, and Tuesday, the 28th, he became somewhat disturbed. According to
Moretsky, Neal called in on June 29, which was the first report that he had received
of Neal's illness, and at that time Moretsky requested that Neal obtain a doctor's
certificate verifying his illness before returning to work.
Respondent's witnesses were in agreement with the position taken by the General
Counsel concerning the skill and ability of Neal. Neal was among the top pro-
ducers and had received two salesman's awards for his productive efforts.
F. Conclusions
The record clearly establishes that Respondent's supervisors had knowledge of the
Union's efforts to organize the employees. Elmer Kragh, business agent of the
Union, testified that he had had several conversations with Sol Moretsky concerning
a'contract for the employees. According to Neal, about June 3 or 4, some 3 or 4
days after the Union first began distributing application cards and seeking to or-
ganize the employees, he heard Goudreau say that the Union was not any good and
anyone that joined it would be fired. This testimony is corroborated by Clifford
Allen who testified that he heard Goudreau state that he "didn't think anybody that
joined the Union would have their jobs." Allen was a driver-salesman who was
first employed by the Respondent about May 1, 1960.
Caruso, who first started to work for the Respondent as a driver-salesman on
May 9, 1960, testified that about 3 or 4 days after the Union began to organize the
employees that he heard Goudreau say "we have no use for union organizers and
we can do without the Union." James Reach, another driver- salesman , testified
that he heard Goudreau talking about the Union within a week of the Union' s initial
campaign on June 1, at which time Goudreau said : "If the Union came in, the
trucks would revert back to the owners." Goudreau denied having made these state-
ments but did state that one night in the garage he had told some of the employees
that he "didn't know why anyone would join the Union. The Company has better
benefits than the organized companies." Based on the testimony of Neal, Allen,
Caruso, and Reach, whom I credit, I find that the Respondent did, through remarks
made by supervisors, Richard Goudreau and Sol Moretsky, threaten employees with
discharge if they joined or supported the Union.
However, I find that the proof is wanting to sustain the General Counsel's alle-
gation that Respondent threatened employees with paycuts and alteration of other
conditions of employment if they joined or supported the Union and the allegation
that Respondent granted pay increases (or promised pay increases) to its em-
ployees for the purpose of dissuading employees from engaging in union activities.
The only evidence tending to support the latter two allegations came from witness
5 According to Moretsky, the strict policy of not leaving the truck had become im-
portant to the Respondent following an accident in which certain liabilities attached to
the Respondent because its driver was thought to have been assisting in the directing of
trafc. The rule of staying inside the truck was made at the insistence of the insurance
carrier.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Caruso who testified that at a general meeting of the driver-salesmen on August 1,
Moretsky had talked to the group and stated that he had no use for the Union and
that in the course of the talk he had indicated to the employees that drivers who
stayed an additional year with the Company would receive an additional 1-percent
increase in pay. He also testified that in September at a general meeting the em-
ployees were told that all those employees who produced in excess of a specified
dollar amount of gross sales would receive an additional 1-percent increase.
General Counsel's witness, James Reach, who also testified concerning the Au-
gust 1 meeting of the driver-salesmen, had no recollection of Moretsky having
talked at the meeting.
Annis, the Respondent's president, testified that the bonus system of 1 percent
additional for each year the employees worked for the Company had been inaugu-
rated in 1959 and was not new. I credit this testimony. There is no proof in the
record that the promised increase in percentage payments announced at the meeting
in September 1960 was in any way related to union activity. To the contrary, be-
cause of the season of the year and the obvious slackening of such a seasonal busi-
ness, such an announcement would have been consistent with Annis' announced
program of periodic contests in an effort to stimulate sales. I find, therefore, that
the General Counsel has failed to sustain his allegation that the Respondent violated
Section 8(a)(1) of the Act by threatening employees with paycuts and alteration
of employment conditions or granting or promising employees increases for the
purpose of dissuading the employees from engaging in union activities. (Para-
graphs numbered 8b and d of the complaint.)
We turn now to a consideration of the severance of Neal from the Respondent's
payroll. Although there is little in the record to indicate that Neal was in fact an
active, ardent union adherent, there is testimony indicating that the Respondent's
supervisors were apparently of the opinion that Neal was a leader in the Union.6
Based on my observations of Neal and his general demeanor, I credit his testimony
concerning the events of his discharge and reject the testimony of Moretsky.7 In
view of Neal's fine record as a salesman, and accepting Neal's version of Moretsky's
conversation with him when Neal called in to report illness, it would seem to be a
reasonable inference that Moretsky sought to remove Neal from the payroll because
he believed him to be an active adherent and leader in the Union's efforts to organize
the driver-salesmen .8 I therefore find that Neal was discharged by the Respondent
on or about June 27, 1960, because of the belief by Respondent that Neal was
actively engaged in promoting the Union and in so doing the Respondent violated
Section 8(a)(3) and (1) of the Act as alleged by the General Counsel.
IV. THE, EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, inti-
mate , 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 engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type conventionally ordered in such cases which I find necessary to
remedy and remove the effect of the unfair labor practices and to effectuate the
policies of the Act.
Because Respondent's business is a seasonal business, the posting forthwith of the
usual notice recommended in this type of case would fail to reach Respondent's
employees who may have been or who might become affected by Respondent's mis-
conduct. Therefore, I shall recommend that the notice to all employees be posted
during a period of the year that will be most effective -in achieving the purpose of
such a notice. I shall also recommend that the notice remain posted for only 30
days because, under the circumstances of this case, it is believed that such a period
is adequate to remove the effects of Respondent's misconduct.
O According to Neal's testimony which I credit, Annis mentioned the Union to Neal as
a possible reason for his June 11 layoff ; Moretsky mentioned the Union and told Neal
that he should stop scouting for the Union and asked why he did not quit ; and of course
as indicated heretofore Goudreau had expressed himself in opposition to the Union in the
presence of Neal.
7 Bryan Brothers Packing Company , 129 NLRB 285 , footnote 1.
8 Cf B V.D. Company, Inc., 110 NLRB 1412
EDITORIAL "EL IMPARCIAL", INC. 223
It will be recommended that the Respondent , upon request , make available to
the Board and its agents all payroll and other records pertinent to the analysis of
the amounts of backpay due the discriminatively discharged employee , namely,
Charles Neal.
Upon the basis of the foregoing findings of fact , and upon the entire record in
these proceedings , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is and has been at all times material to this proceeding an
employer within the meaning of Section 2(2) and is and has been engaging in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. By discriminatorily discharging employee Charles Neal on or about June 27,
1960 , as found above , the Respondent has engaged in and is engaging in an unfair
labor practice within the meaning of Section 8 (a) (3) and ( 1) of the Act.
3. By interfering with , threatening , restraining , and coercing employees in the
exercise of rights guaranteed them by Section 7 of the Act, as found above, the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
[Recommendations omitted from publication.]
Editorial "El Impartial", Inc. and Teamsters, Chauffeurs, Ware-
housemen and Helpers , Local 901, IBTCW & H of America.
Case No. 14-CA-1293. April 04, 1961
DECISION AND ORDER
On October 12, 1960, Trial Examiner John H. Dorsey issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the,General Counsel filed exceptions to the
Intermediate Report and a brief in support thereof.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate Re-
port, the exceptions and brief, and the entire record in the case, and
hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.'
[Tho Board dismissed the complaint.]
CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the
consideration of the above Decision and Order.
i The General Counsel's exceptions were limited to the Trial Examiner's failure to find
that a speech made by the Respondent ' s owner to a gathering of employees was violative
of Section 8(a) (1) of the Act. The Trial Examiner ' s Intermediate Report states that
the General Counsel's and Respondent ' s witnesses gave conflicting testimony regarding
the content of the speech , and that the witnesses for each of the parties failed to impress
him that they were telling the whole truth. The Trial Examiner failed to credit any of
the witnesses , and consequently found that the General Counsel had not proved the allega-
tion by a preponderance of the testimony and recommended its dismissal . In these cir-
cumstances we affirm the dismissal of the allegation . Blue Fla8h Express, Inc., 109 NLRB
591, 592, 601-602; and Casa Grande Cotton Oil Mill, 110 NLRB 1834, 1852.
131 NLRB No. 38.