Oak Tree Farm Dairy, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1968

169 N.L.R.B. 756 (N.L.R.B. 1968)

756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oak Tree Farm Dairy, Inc. and Martin J.
Benkovich. Case 29-CA-793
February 13, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 3, 1967, Trial Examiner Paul
Bisgyer issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respond-
ent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the General Counsel's
exceptions and supporting brief, the Respondent's
answering brief, and the entire record in the case,
and hereby 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 adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the complaint be, and it hereby is,
dismissed.
' In the absence of exceptions, we adopt, pro forma, the Trial Ex-
aminer's finding that the General Counsel has failed to sustain his burden
of proving by a preponderance of the evidence that Benkovich's discharge
violated Section 8(a)(1) and (3) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Trial Examiner: This proceeding, with
all the parties represented, was heard on June 15, 16, and
20, 1967, in Brooklyn, New York, on the complaint of the
General Counsel' and the answer of Oak Tree Farm
Dairy, Inc., herein called the Respondent. In issue are the
questions whether the Respondent in violation of Section
' The charge, on which the complaint is based, was filed on November
21, 1966, and a copy was served by registered mail on the Respondent the
next day.
8(a)(3) of the National Labor Relations Act, as amended,
discriminatorily discharged Martin J. Benkovich because
of his union or other concerted activity, and whether, by
this and other conduct, it interfered with, restrained, and
coerced employees in violation of Section 8(a)(1) of the
Act. At the close of the hearing, the General Counsel and
the Respondent orally argued their positions which they
thereafter amplified in briefs submitted to the Trial Ex-,
aminer. The Respondent's motion to dismiss the com-
plaint, on which ruling was reserved at the hearing, is now
granted for insufficiency of proof, as found below.
Upon the entire record,2 and from my observation of
the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation with its
principal office and plant in East Northport, New York,
is engaged in the_ bottling, sale, and distribution at
wholesale of milk, orange juice, fruit juice, and related
products. In the course and conduct of its operations, it
annually purchases milk, dairy products, containers, bot-
tles, and other goods and materials valued in excess of
$50,000 which are shipped to its plant from points outside
New York State. In addition to its wholesale business,
the Respondent, through its wholly owned subsidiary,
Dairy Barn Stores, Inc., operates 47 retail stores in Nas-
sau and Suffolk Counties, New York, for the sale to the
public of its dairy and other products. Gross income
derived from its retail operation exceeds $500,000 per
year.
The Respondent admits, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act. I further find that effectuation of the policies of
the Act warrants the Board's assertion of jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
It is undisputed that Local 584, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and.
Helpers of America, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Background; creation of the employee committee
Essentially, it is the General Counsel's position that the
Respondent unlawfully terminated the employment of
Martin J. Benkovich because of his efforts to reestablish
the Union as the collective-bargaining representative of
the Respondent's plant employees and his protected con-
certed activity to improve the employees' terms and con-
ditions of employment. Prior to 1962, the Union had
represented these employees as part of a multiemployer
' The General Counsel's offer to introduce in evidence G.C. Exh. 4 for
identification, on which ruling was reserved, is received. Also, in ac-
cordance with his unopposed request made in his brief to correct various
typographical errors in the transcript of testimony herein, it is hereby or-
dered that the transcript be corrected as requested.
169 NLRB No. 108
OAK TREE FARM DAIRY
bargaining unit for some 20-odd years pursuant to succes-
sive collective agreements. With the expiration of the
then current contract in October 1961, the Union called
an industrywide strike which lasted until about
November 7, 1961.3 Thereafter, the negotiators for the
Employers and the Union reached agreement the follow-
ing November 18. The Respondent, however, refused to
sign this multiemployer agreement with the result that the
Union ceased representing the Respondent 's employees.
Since the Union's withdrawal, a three-man committee
elected by the employees has been functioning as their
representative to present and discuss with management
grievances, complaints, discharges, and proposed im-
provements in terms and conditions of employment.4 For
such purposes, the committee meets monthly with Arthur
G. Berger, the Respondent's vice president and secre-
tary, and Dieter Cosman, its president, if available, both
of whom are the Respondent's principal stockholders. It
has been the Respondent's long-declared policy to main-
tain terms and conditions of employment at least equal to,
if not better than, those prevailing in the industry under
union contracts.5
2. Benkovich's employment history; his union and
concerted activity
Benkovich, whose competency as an employee is can-
didly conceded, was first employed by the Respondent in
its plant as a utility man, performing bottling, case
stacking, loading and unloading of trucks, and other du-
ties. At the inception of the Union's strike in 1961, he
continued working in the plant to prevent spoilage of milk
and tried to persuade others to do likewise. Apparently,
he thereafter joined the strike. In 1962, Benkovich was
promoted to foreman, a supervisory position,6 working
under Superintendent Charles Ackerly. In August 1964,
Benkovich resigned as foreman rather than transfer from
the morning to the night shift and returned to his rank-
and-file job of utility man, which he held until his
discharge on November 14, 1966, under circumstances
to be considered below.
During the period of his employment with the Respond-
ent, Benkovich, who had been a union steward on his
previous job, was regarded by the committee and other
fellow employees as the most knowledgeable plant em-
ployee with respect to union terms and conditions of em-
ployment prevailing in the industry and for that reason
was consulted on those matters. In discussions with the
committee and employees, he was outspoken in his criti-
cism of existing terms and conditions of employment at
the plant and changes that the Company made or contem-
plated making, and advocated improved fringe benefits.
Specifically, up until his discharge, he voiced his opposi-
tion to various facets of the Respondent's pension pro-
3 On November 13, 1961, one of the Respondent's employees filed a
petition (Case 2-RD-554) to decertify the Union as the bargaining
representative of the Respondent's employees. The Regional Director
dismissed the petition the following month for the reason that a single em-
ployer unit was inappropriate in view of the fact that the Respondent had
not timely withdrawn from the multiemployer bargaining unit The dismis-
sal was sustained by the Board on January 26, 1962.
4 Despite the General Counsel's innuendoes, the complaint does not al-
lege the committee to be a company-dominated or assisted labor organiza-
tion proscribed by Section 8(a)(2) of the Act. In fact, although such an al-
legation was originally included in the unfair labor practice charge filed
herein„ the Regional Director subsequently approved the withdrawal of
that allegation.
757
gram, such as the related severance pay plan, age retire-
ment requirement, a recent amendment of the plan, effec-
tive June 1, 1967, to make provision for the contingency
of employees being unionized and covered by a union
pension plan , and the absence of employee participation
in revising or administering the existing pension program.
It was also his expressed view that the fringe benefits at
the plant were progressively falling below union stan-
dards and reflected a departure from the Respondent's
announced policy to keep abreast, if not ahead, of those
standards. At some of these discussions, Superintendent
Ackerly and foremen, all of whom had a personal interest
in an improved pension system and other benefits,7 were
present. Often, at Benkovich' s instance, the committee
presented these objections at meetings with management,
without specifically identifying the source. According to
Jacobs' uncontradicted testimony, at one of the commit-
tee's regular monthly meetings with management some-
time after the July meeting but before Benkovich's
discharge, Berger or Cosman referred to Benkovich as an
"instigator." However, while Jacobs could not recall the
context in which this term was used, he testified that the
label "instigator" had been planted on Benkovich about
4 years previously and was generally used by employees
and supervisors in a kidding manner.
In the middle or last week of June 1966,8 Union
Delegate Charles Simpson communicated with
Benkovich and arranged for himself and Union President
John Kelly to meet with Benkovich at the latter' s home.
At this meeting, they discussed ways and means for reac-
tivating the Union in the plant. With this objective in
mind , another meeting at Benkovich's home was set up,
at which committeemen who were considered friendly to
the Union would be invited. Accordingly, at the plant
Benkovich invited George Jacobs who , in turn, spoke to
Frank Murphy. Both committeemen agreed to attend the
meeting at which Benkovich planned on serving dinner.
On Saturday, probably July 2, while Jacobs and Murphy
were at work, Respondent's president, Dieter Cosman,
approached them. Indicating that he was aware that they
were going to a dinner meeting with the Union at
Benkovich's home, Cosman told them to have a good
time, listen to what the Union had to say, and compare
the benefits the Union offered them with what they then
enjoyed. Cosman also added that "out of curiosity- [he
would] like to know what it comes down to."
At the appointed time, Jacobs and Murphy showed up
at Benkovich's home where they met Simpson and Kelly
and informed Benkovich of Cosman's awareness of that
meeting. In the ensuing conversation, the Respondent's
wage scales, pension program , welfare, and other benefits
were compared with the Union's standards. The union of-
ficials also questioned Benkovich, Jacobs, and Murphy
concerning their attitude toward the Union and received
5 Brangle Brink Dairy , Inc , in which Berger , its secretary, and Cosman
have a 50-percent interest, obtains its bottled milk and other products for
its retail trade at the Respondent 's plant. For a number of years, Brangle
Brink has been in contractual relationship with the Union The Respond-
ent's wholly owned subsidiary , Dairy Barn Stores , Inc., is also under
contract with Local 1500 of Retail Clerks Union.
6 This position is sometimes referred to in the record as assistant
foreman.
' When the Union was the bargaining representative of the Respond-
ent's employees prior to 1962, Ackerly and foremen were covered by the
collective agreements
8 Unless otherwise specified, all dates refer to 1966.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a favorable response . In answer to Benkovich 's inquiry
as to what steps they should take to unionize the plant,
the union officials suggested that they only ascertain the
employees ' desires for union representation.
Following this meeting, there apparently was some
covert union discussion among the employees . According
to Benkovich , he inquired of "maybe three" employees
how they felt about bringing a union into the plant.
At the committee ' s next regular monthly conference
with management on July 7, which Berger and Cosman
attended , the subject of the Union 's meeting at
Benkovich's home came up. Either Berger or Cosman
asked the committee how they liked the union meeting
and whether they had a good time, and proceeded to
inquire whether the Union 's pension and welfare plan
could be satisfactorily compared with the Respondent's.
Jacobs answered that the Respondent ' s was better.
Referring to other employment conditions which were
mentioned at the union meeting, Jacobs indicated that the
Company's were superior to those offered by the Union
and expressed no desire for having the Union in the plant.
It is quite clear that the subject of the union meeting con-
stituted only a "minor" part of the committee-manage-
ment discussions, which were prinicpally devoted to the
adjustment of employee grievances.
A second union meeting was held about August in New
York City at the Teamsters Joint Council' s office. In at-
tendance were Joint Council President Taratola, Union
Delegate Simpson , Union President Kelly, Benkovich,
and Jacobs . Here , Benkovich and Jacobs were told, in
answer to their question , that the time was not ripe yet for
the organizational drive at the plant and that they were to
sit tight until they received further word from the Union.
Following this Joint Council meeting , Benkovich
refrained from engaging in union conversations in the
plant except that he informed an employee , who wanted
to know when the Union was going to move, to lay low
for the time being. At a later time, Benkovich himself
asked Simpson when could he proceed to organize the
employees and was again advised to wait . In this abortive
state of the Union 's organizational movement Benkovich
was discharged.
3. The Respondent's rule against pilferage; Benkovich's
first discharge and reinstatement
It has been the Respondent's practice to permit its em-
ployees to purchase milk and fruit juices at discount
prices. It has also had in effect a longstanding rule for-
bidding employees to take any merchandise without pay-
ing, and warning them that they risked discharge if they
The full text of the notice , signed by Berger , read as follows:
It seems that occasionally it becomes necessary for me to state com-
pany policy. It should not be necessary to restate this policy but ap-
parently it is. This company will not tolerate the misappropriation of
merchandise belonging to the company regardless of the amount in-
volved.
Any employee found misappropriating company property , whether
it be one quart of milk or whatever else, will be dismissed immediate-
ly
This warning is no more servere than the provision in the Union's industry
contracts which make theft of company property a ground for summary
discharge.
10 This notice , over Berger's signature , stated:
Effective immediately , any employee purchasing milk or other items,
will have his purchase checked by the foreman prior to leaving the dairy.
This is being instituted for the protection of the employee as well as any-
one else since in this manner suspicion cannot be cast against you There
did so. Because this rule was being widely ignored both
by employees and supervisors, the Respondent posted a
notice in the plant on November 22, 1963, reminding
them of the consequences of misappropriation of com-
pany property "whether it be one quart of milk or what-
ever else."9 According to Benkovich's testimony, at some
unidentified time after this notice was posted, Vice Pre-
sident Berger called a meeting of employees at which he
stated that he was aware that employees were still taking
products without paying and directed that that practice
stop immediately. As recently as January 31, 1966, long
before any interest in the Union developed, the Respond-
ent, apparently to curtail pilferage, posted a notice"
requiring employees to have their purchases checked by
foremen.
In addition to the foregoing, there is credible evidence
that at various employee meetings Berger repeated his ad-
monition against pilferage , as well as cautioned em-
ployees against taking merchandise in Dairy Barn deposit
bottles which were redeemable at 25 cents each at Dairy
Barn stores and supermarkets.- However, notwithstand-
ing the Respondent's legitimate concern over pilferage,
its supervisors, and perhaps Berger and President
Cosman, too, were manifestly lax in enforcing these rules,
although there is evidence that at least four employees,
one of whom was a steward during the Union's incum-
bency and another a foreman, were terminated for taking
company products. These discharges were made by
Berger and Cosman whose policy has been to take such
action only if either of them personally catches the of-
fender stealing. However, Berger or Cosman'might give
an offender another chance if this was the first time he
was caught and he otherwise deserved it.
On July 29, 1965, Cosman observed Benkovich leav-
ing the plant with six half-gallon bottles of milk and four
half-gallon bottles of orange juice, for which he did not
pay. By letter dated July 30, Cosman discharged
Benkovich for this offense. Following receipt of this
notification, Benkovich met with Cosman and Berger at
the plant to seek his reinstatement. After much discussion
and to perserve Benkovich's interest in the Company's
pension plan, Cosman relented and permitted his rein-
statement with a loss of 2 days' pay only. However, as a
condition of returning to work, Benkovich was required
to write and sign an undated resignation with the un-
derstanding that it would be used only if he repeated his
offense. 12
4. Benkovich's final termination
As a result of his 1965 discharge experience,
may be times when you will be inconvenienced for a few minutes because
the foreman is busy but of necessity you will have to wait and have your
purchases checked
Please cooperate
It appears that this notice remained posted about 4 weeks.
11 In so doing, I reject Benkovich's contrary testimony regarding the
taking of Dairy Barn deposit bottles . Although there is also testimony that
a notice, which specifically forbade taking products packaged in Dairy
Barn deposit bottles , was posted in the plant , no such document was
produced However, since the November 22, 1963, notice, quoted above,
referred to company property, it is reasonable to assume that deposit bot-
tles, which are worth 25 cents, fall within the company rule.
12 There is testimony given by Berger, and demed by Benkovich, that,
before the 1965 incident , Berger saw Benkovich leave the plant with con-
cealed mechandise and cautioned him to stay clean. This testimonial con-
flict is not important enough to resolve
OAK TREE FARM DAIRY
Benkovich testified, he refrained from taking any milk or
juice, whether by purchase or otherwise, until October
1966 when, because of his wife's hospitalization and sub-
sequent convalescence, he found it necessary to avail
himself of the privilege of buying these items at the
plant.13 From that date until the date of his discharge on
November 14, 1966, Benkovich made purchases about
twice a week or a total of 8 to 10 times. His normal
procedure in making purchases was to come to the plant
before he was scheduled to start work at 7 in the morning
and inform his foreman, Walter Henning, that he was tak-
ing milk and orange juice, without indicating the amount.
Then, after obtaining those items, either he or his son
would drive home with them. At 7 o'clock he would
return to go- to work and at some time during the day he
would pay Henning for his purchases.14 It is undisputed
that, contrary to company rule, Henning never checked
Benkovich's purchases but accepted his word as to what
he bought, even though he suspected Benkovich of taking
more than he paid for. Moreover, Henning admitted that
he was aware that Benkovich was taking milk and orange
juice in Dairy Barn deposit bottles in disregard of com-
pany instructions and that he did not put a halt to this
practice.
During the 4-week period preceding Benkovich's final
discharge, Henning reported to Vice President Berger
that shortages of Dairy Barn bottles of milk and orange
juice had shown up in his daily inventories and informed
Berger that he believed that Benkovich was taking more
of these products than he was paying for. Berger, for
some personal reason ,, delayed taking action on this re-
port until November 14, when he came to the plant about
5 or 5:30 in the morning and concealed himself in the
eaves of the roof above the icebox where he would be in
a position to observe Benkovich as he left the plant with
milk and orange juice.
On this day, Benkovich arrived at the plant before 7 in
the morning. As was his custom, he informed Henning
that he was going to take some milk and orange juice.
Thereupon, he entered the icebox and, after passing by
the area where nondeposit bottles of milk and orange
juice were located, picked up three half-gallons of milk
and one half-gallon of orange juice," all in Dairy Barn
deposit bottles. Benkovich then left the plant and placed
the bottles in his car and his son drove off. In the mean-
time, Berger from his vantage point, observed Benkovich
carry out the four Dairy Barn bottles of milk and orange
juice for his son to take home.
Benkovich then returned to the filler machine where
Henning was busily engaged "casing" bottles of milk,
handed Henning a dollar bill for the items he purchased,
and relieved him in the work he was performing. At this
point, there is a divergence in the testimony as to what
else happened. According to Benkovich, although he
owed the Company, $1.20 for his purchase," he did not
have a sufficient opportunity, when he gave Henning the
13 There is contradictory testimony that before this date Benkovich
resumed taking milk and orange juice but paid for less than he had actually
taken. In view of my ultimate determination here, I find it unnecessary to
resolve this conflict , except as it relates to his last purchase on November
14, 1966, which led to his discharge
14 Benkovich testified that on two occasions Henning told him not to
pay for his purchases if no one had seen him take the milk and orange jwce
and that he declined the offer-Henning denied this testimony but admitted
that on one occasion in 1966 he had given Benkovich milk without charge,
in accordance with company policy , because Benkovich indicated that he
could not afford to pay . I find no necessity to determine the truth since at
759
dollar, to reach into his pocket for the additional 20 cents
or to inform him that he owed that sum because he
(Benkovich) immediately became involved in "casing"
the bottles and Henning quickly left that area. Benkovich
further testified that a few minutes later, Henning
returned and, on the manifest assumption that Benkovich
had bought only three half-gallons of milk and orange
juice, threw Benkovich a dime as change , which he
caught . At this time, too, Benkovich testified , he was un-
able to call Henning 's attention to the fact that he still
owed money for one bottle for the reason that Henning
again rushed away and he (Benkovich) was still pre-
occupied in removing bottles from the conveyer and
packing them in cases. As for his failure to liquidate his
indebtedness later in the day. Benkovich explained that
he had forgotten to do it.
Henning, on the other hand , gave this simple account:
He asked Benkovich what he had taken. Answering that
he had taken two half-gallons of milk and one half-gallon
of orange juice, Benkovich handed Henning one dollar.
Henning, thereupon , gave Benkovich 10 cents change,
went to the office to make out a cash sales ticket, and
thereafter returned to the filler and watched Benkovich at
work.
I am not impressed with Benkovich 's testimony regard-
ing his failure to pay the full amount of his purchase,
which appears to me to be too improbable to admit of be-
lief. By contrast, I find Henning 's account more plausible
and accordingly credit it.
After watching Benkovich carry out of the plant three
half-gallon bottles of Dairy Barn milk and one half-gallon
bottle of orange juice, Berger proceeded to his office,
telephoned Henning, and directed him to check his stock.
Evidently at this time, Henning advised Berger that
Benkovich had paid for two bottles of milk and one bottle
of orange juice. Later Henning reported to Berger that
there were three Dairy Barn bottles of milk and one bottle
of orange juice less than that shown in his earlier invento-
ry.
Shortly before Benkovich's shift ended in the after-
noon, Berger summoned him to his office. In Superintend-
ent Ackerly's presence , Berger told Benkovich that he
was discharged for taking that morning more milk than he
paid for. Benkovich neither denied the accusation nor of-
fered any explanation.
5. Efforts to secure Benkovich 's reinstatement
A few days later, Benkovich and employee commit-
teemen Jacobs, Murphy, and Calcagno conferred with
Berger to urge him to reconsider his decision and rein-
state Benkovich. Berger rejected their plea, declaring that
in 1965, Benkovich was caught stealing and was given
another chance and that he (Berger) was not now
disposed to excuse Benkovich's latest theft. Benkovich
replied that the 1965 incident had been resolved and de-
most , if Benkovich 's testimony is accepted, it would simply reveal a lax
practice of enforcement of company rules.
15 Although at the time of this incident half-gallons of orange juice were
bottled only in Dairy Barn deposit bottles , it appears that quarts of orange
juice packaged in disposable containers or nondeposit bottles were also
available.
16 The Respondent charged employees 30 cents for a half-gallon of milk
and 50 cents for a half-gallon of orange juice However, Henning had
mistakenly been charging Benkovich the same price for orange juice as for
milk.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nied the accusation on which his discharge was assertedly
based. He explained that the circumstance of Henning's
hurried departures when he handed him the dollar bill, and
when Henning gave him the 10 cents change shortly
thereafter, deprived him of the opportunity to settle his
account or notify Henning that he still owed the Com-
pany for one bottle of milk. Benkovich also stated that on
several occasions Henning had declined payment for his
purchases or had charged him less than was due.
Probably at this point, Berger added that Benkovich
should not have taken the milk and orange juice in Dairy
Barn bottles. This elicited Benkovich's response that
everybody was doing it. During these discussions, Berger
also charged that Benkovich telephoned Henning the
night of his dismissal and asked Henning to change his'
story. Benkovich denied this charge, too, insisting that he
merely inquired what the story was.17 Further along in
the discussiions, a committeeman indicated doubt that
Berger had actually observed Benkovich steal Dairy Barn
bottles of milk and orange juice, as Berger had claimed.
This irked Berger to the point where he offered to divulge
his hiding place, against his better judgment, to prove that
he was in a position to see Benkovich carry out those
items. Berger thereupon led two committeemen to the
crawl space in which he had concealed himself at the time
of the incident. Upon their return to the group, Jacobs
described the hiding place to the others and confirmed
Berger's assertion. The committee then appealed to
Berger to revoke the discharge and impose a suspension
or other discipline upon Benkovich. Berger declined to do
so and the meeting broke up with Benkovich announcing
his intention to resort to other steps against the
Respondent. 18
According to the credible testimony of Jacobs, some-
time after the foregoing meeting, when Cosman returned
from a vacation, employees spoke to Cosman about
Benkovich's discharge. This evoked advice to them to
refrain from taking Dairy Barn bottles of milk and, if milk
was needed, to see him and he would get it for them.
B. Concluding Findings
1. With respect to the discharge
It is the General Counsel's contention that Benkovich
was unlawfully discharged on November 14 in reprisal
for his union and other protected concerted activity and
that his admitted failure to pay for all the milk and orange
juice he had taken that morning and the fact that he had
taken these products in Dairy Barn deposit bottles were
mere pretexts to conceal its true discriminatory motiva-
tion. Indeed, the General Counsel ventures the sug-
gestion that, prior to the events on November 14, the
Respondent unsuccessfully attempted "to set up"
Benkovich for discharge by various subterfuges which
finally came to fruition with his fateful purchase on that
day. I find insufficient evidentiary support in the record
for the pretext theory and much less for the entrapment
charge.
17 The substance of this conversation is the subject of conflicting
testimony which requires no resolution.
1s The foregoing findings are based on the combined testimony of
Jacobs, a disinterested and candid witness, and Benkovich, which is mu-
tually corroborative in significant respects.
It is quite clear that the Respondent for years had been
aware of Benkovich's active interest in improving work-
ing conditions at the plant and his alertness in seeing that
these conditions did not fall below union standards
prevailing in the industry. Yet, it took no retaliatory mea-
sures to impede or frustrate Benkovich's efforts. In fact,
if the Respondent were concerned in the least over his
concerted activity, it could have availed itself of the op-
portunity in July 1965 to get rid of him permanently but
did not do so. As discussed previously, at that time the
Respondent had discharged Benkovich for improperly
taking milk and orange juice but reinstated him a few days
later, depsite its knowledge of his concerted activity.
Similarly, after learning of Benkovich's interest in reac-
tivating the Union in the plant about July 2, 1966, the
Respondent showed no inclination to curb or discourage
it, nor did it even make any adverse comment or criticism
of his union attitude.19 On the contrary, it appears that the
Respondent refrained from engaging in any of the familiar
forms of antiunion propaganda, or campaigning, coercive
or otherwise, from which an inference of discriminatory
motivation for Benkovich's discharge could be drawn.
Certainly, President Cosman's innocuous remarks to
committeemen Jacobs and Murphy on July 2 to have a
good time at the dinner meeting with union officials
scheduled at Benkovich's home that evening, and his sug-
gestion that "out of curiosity" they advise him what terms
and conditions of employment the Union offered them
cannot realistically serve to taint the avowed reason for
Benkovich's discharge. Nor does the Respondent's
inquiry at a regular meeting with the committee concern-
ing the terms and conditions of employment the Union
proposed to establish at the plant necessarily aid the
General Counsel's case. Significantly, the discharge
based as it was on an offense Benkovich had actually
committed, occurred about 4 months after the Respond-
ent's above inquiry at a time when the Union had still
not initiated its organizational drive and Benkovich was
not even engaged in proselytizing employees to the
Union's cause.
Also negating a finding that unlawful considerations
dictated the discharge is the fact that Benkovich had
previously been separated for taking milk and orange
juice without paying in July 1965, at a time when he had
exhibited no union interest. Although, as noted above, the
Respondent, out of compassion, subsequently reinstated
him with the loss of only 2 days' pay, it was with the ad-
monition not to repeat his offense or risk acceptance of
his undated resignation he was required to give as a con-
dition of reinstatement. Moreover, there is evidence that
a discharge for pilferage was not an unusual event in the
plant. Thus, the record discloses that on other occasions,
both before and after the discontinuance of bargaining
relations between the Respondent and the Union in 1961,
the Respondent had terminated other employees who
were caught by President Cosman or Vice President
Berger in the act of taking company products without per-
mission or were disciplined if that were their first offense,
although, to be sure, there can be no question that super-
11 There is evidence that at one committee meeting, either President
Cosman or Vice President Berger referred to Benkovich as an "agitator."
While in another context the use of that label may reveal dissatisfaction
with an employee's union activity, the evidence here shows that this label
had been pinned on him in the plant a long time ago and that both em-
ployees and management jokingly used that term as a nickname for
Benkovich.
OAK TREE FARM DAIRY
visors did not strictly enforce company rules in that
respect.20 Finally, apart from the absence of probative
and reliable evidence of antipathy to union or other con-
certed activity, it is undisputed that the Respondent at all
material times has maintained a contractual relationship
with the Retail Clerks Union for the employees of the
Respondent's wholly owned subsidiary, Dairy Barn
Stores, Inc., and that its two principal stockholders,
Cosman and Berger, hold a 50-percent interest in Brangle
Brink Dairy Company which is under contract with the
same Teamsters Union involved herein.
It is established law that an employer may discharge an
employee for any reason, good, bad, or indifferent, pro-
vided he is not actuated by considerations of the em-
ployee's protected union or concerted activity. While it is
also settled that a "justifiable ground for dismissal is no
defense if it is a pretext and not the moving cause,"21 such
a case was not proved here. The most that can be said is
the Respondent did not treat Benkovich fairly and should
have warned him again to heed company rules regarding
pilferage in view of its demonstrated laxity in their en-
forcement. However, an employer's unfairness or un-
reasonableness, if such be the case, is not a matter with
which the Act is concerned. Whatever suspicion conduct
of this type evokes, it cannot, of course, substitute for the
evidence the Act requires to support a charge of dis-
crimination or unlawful interference with an employee's
protected concerted activity.22
Accordingly, I find that the General Counsel has failed
to sustain his burden of proving by a preponderance of
the evidence that Benkovich's discharge violated Section
8(a)(1) and (3) of the Act. It is therefore recommended
that the relevant allegations of the complaint be
dismissed.
2. With respect to interference , restraint, and coercion
of employees
The complaint alleges that the Respondent violated
Section 8 (a)(1) of the Act by interrogating employees
concerning their union membership , activities , and sym-
20 On the record before me, Foreman Henning's laxity in enforcing
company rules cannot reasonably be viewed, as the General Counsel
urges, as part of a premeditated plan "to setup" Benkovich for discharge.
21 N.L.R.B. v Solo Cup Company, 237 F.2d 521,525 (C.A. 8).
22 Since it is undisputed that Benkovich was informed at the time of his
discharge that the reason for his separation was his failure to pay for all
761
pathies; warning and directing employees to refrain from
becoming or remaining members of the Union or support-
ing that organization; offering, promising, and granting
employees wage increases and other benefits to induce
them to refrain from membership in, and support of, the
Union; and creating the impression of surveillance of
union meetings and union and concerted activities.
I find the record is woefully lacking in evidence to sub-
stantiate these allegations. Under the facts and circum-
stances of this case, I am unable to view, as does the
General Counsel, President Cosman's remarks to em-
ployees to enjoy their dinner meeting with union officials
at Benkovich's home on July 2 as creating the impression
of surveillance. Moreover, in disagreement with the
General Counsel, I find that Cosman's request to com-
mitteemen Jacobs and Murphy to advise him what the
Union had to offer them was nothing more than an in-
nocuous remark not calculated to be, or having the effect
of, a threat "to avoid entanglements" with the Union, or
a promise of benefit "to match" anything the Union of-
fered. Nor can I understand how at a regular meeting with
management the committee's favorable comparison of the
Respondent's existing terms and conditions of employ-
ment with those proposed by the Union, made in
response to the Company's inquiry, could constitute an
unlawful promise of benefit by the Respondent, as the
General Counsel seems to urge.
In short, as I find that the General Counsel's burden of
proving the foregoing alleged unfair labor practices has
not been sustained, I recommend the dismissal of the
complaint in its entirety.
RECOMMENDED ORDER
Upon the basis of the foregoing finding and conclusions
and upon the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is ordered that the complaint issued herein
against the Respondent, Oak Tree Farm Dairy, Inc., be,
and it hereby is, dismissed.
the products he had taken, the statement in the letter sent by the Respond-
ent's attorney to the General Counsel's attorney , in response to the un-
fair labor practice charge served on his client , that Benkovich 's termina-
tion was based upon his "breach of company rules regarding his per-
formance of regular duties, " does not necessarily prove that the asserted
pilferage reason was pretextual.