Plainview Farms, Inc.

National Labor Relations Board - Board Decisions

Mar 1, 1961

130 N.L.R.B. 933 (N.L.R.B. 1961)

PLAINVIEW FARMS, INC. 933
Plainview Farms, Inc. and Milk, Ice Cream . Drivers and . Dairy,
Employees Local 783, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America . Case No.
9-CA-9d097. March 1, 1961 -
DECISION AND ORDER
On October 20, 1960, Trial Examiner Stanley Gilbert 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National-Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions' and brief, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
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 the. Respondent, Plainview
Farms, Inc., its officers, agents, successors , and assigns, shall :
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf of Milk,
Ice Cream Drivers and Dairy Employees Local 783, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or in any other labor organization of its, employees, by
discriminating in regard to the' hire and tenure of employment of
any employees, or any term or condition thereof. -
(b) Coercively or 'otherwise unlawfully interrogating employees
regarding union membership or activities or threatening its employees
with economic reprisals should the Union be successful in the solicita-
tion of memberships or should they persist in participating in its
organizational campaign, or in any other manner interfering with,
restraining, or coercing its employees in the exercise of their right to
self-organization , to form or assist labor organizations , to join or
130 NLRB No. 80.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assist Milk, Ice. Cream Drivers and Dairy Employees Local 783, In-,
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, and to en-
gage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection as guaranteed in Section 7 of the
Act, or to refrain from any and all such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as au-
thorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Charles R. Smith and Shellie Richardson immediate
and full reinstatement to their former or to substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings that they
may have suffered as a result of the discrimination against them, as
provided in the section of the Intermediate Report entitled "The
Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due and
the right to reinstatement under the terms of this Decision and Order.
(c) Post at its plant in Louisville, Kentucky, copies of the notice
attached hereto marked "Appendix." 1 Copies of said notice, to be
furnished by the Regional Director for the Ninth Region, shall, after
being duly signed by the Respondent, be posted immediately upon
receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Respondent shall take reason-
able steps to insure that such notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Decision and Order, what steps
the Respondent has taken to comply herewith.
I In 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."
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, we hereby notify our employees that:
PLAINVIEW FARMS, INC. 935
WE WILL NOT discourage membership in or activities on behalf
of Milk, Ice Cream Drivers 'and Dairy Employees Local 783,
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor organization,
by discriminating against our employees in regard to their hire
and tenure of employment or any term or condition thereof.
WE, WILL NOT coercively or unlawfully interrogate our em-
ployees regarding their union affiliation or organizational
activities.
WE WILL NOT threaten our employees with economic reprisal
should they select Milk, Ice Cream Drivers and Dairy Employees
Local 783, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other labor or-
ganization ,,to represent them as their bargaining representative,
or should they engage in any activities on behalf of said Union or
any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization , to form labor organizations , to join or assist Milk,
Ice Cream Drivers, and Dairy Employees Local 783, Interna-
tional Brotherhood of Teamsters; Chauffeurs, Warehousemen and
Helpers of America, 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 collective
bargaining or mutual aid and protection, or to refrain from any
and all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by
Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL offer to Charles R. Smith and Shellie Richardson
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and we will make them whole for any loss
of earnings suffered as a result of our discrimination against them.
All our employees are free to become or to refrain from becoming
or. remaining members of Milk, Ice Cream Drivers and Dairy Em-
ployees Local 783, International Brotherhood of Teamsters, Chauf-
feurs , Warehousemen and Helpers of America, or any other labor
organization .
PLAINVIEW FARMS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Charges having been filed against Plainview Farms, Inc., (hereinafter referred
to as either Company or Respondent ), by Milk , Ice Cream Drivers and Dairy Em-
ployees Local 783, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America ( hereinafter referred to as the Union), the
General Counsel issued a complaint , alleging that the Respondent has engaged in
unfair labor practices within the meaning of the National Labor Relations Act, 61
Stat. 136 (hereinafter called the Act).
With respect to the unfair labor practices , the complaint alleges, in substance,
that the Respondent violated Section 8(a)(3) of the Act by discriminatorily dis-
charging Charles R. Smith on or about March 31, 1960,, and Shellie Richardson on
or about April 14, 1960. It further alleges that Respondent violated Section
8(a)(1) of the Act by the foregoing and by various enumerated acts of alleged
interference , restraint , and coercion . The Respondent in its answer denied the ma-
terial allegations in the complaint imputing to it the commission of unfair labor
practices and also denied that it is engaged in commerce within the meaning of
the Act.
Pursuant to notice, a hearing was held on August 9, 10, andA 1, 1960, at Louis-
ville, Kentucky, before the duly designated Trial Examiner. All parties were repre-
sented at the hearing and were afforded full opportunity to examine and cross-
examine witnesses and to introduce evidence bearing on the issues. All parties
waived oral argument . General Counsel and Respondent submitted briefs.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Plainview Farms, Inc., a Kentucky corporation , having its office , plant , and princi-
pal place of business in Louisville , Kentucky, is engaged in the wholesale and retail
distribution of dairy products. By stipulation the Respondent admits that during
the calendar year 1959, which I find to be a representative period, its combined
direct and indirect inflow of goods , materials , and supplies from sources outside the
State of Kentucky was in excess of $50,000. Therefore, I find, as did the Board
in its Decision and Direction of Election , Case No. 9-RC-4045 (not published in
NLRB volumes), of which the General Counsel requested (without objection by
Respondent) I take judicial notice , that the Respondent is engaged in commerce
within the meaning of Section 2(6) and ( 7) of the Act and that assertion of juris-
diction is warranted.
Respondent , in denying that it is engaged in commerce within the meaning of
the Act, alleged:
Within the sixty (60) day period following May 19, 1960, the date of hearing
in Case No. 9-RC-4045, pending before the Board, the Respondent will de-
crease its direct out-of-State purchases by approximately $29,000 to $30,000.
Counsel for Respondent stated at the commencement of .the hearing that there
was no objection to judicial notice being taken of Case No. 9-RC-4045 "in light
of his comments" with respect to the fact that "there is a second case involving a
second petition filed by this Union with respect to another unit in the employer's
operation in Louisville." He asserted that it is the present intention of the Com-
pany to introduce evidence in the aforementioned "second case" (Case No. 9-RC-
4155) with regard to the jurisdictional requirements of the Board and requested
that this be taken into consideration by the Trial Examiner in passing on the "juris-
dictional challenge" interposed by Respondent. Even if it were to be assumed that
the allegation in Respondent 's answer of a decrease in its out-of-State purchases
constituted a "jurisdictional defense," Respondent introduced no evidence in proof
thereof. As to the indication by Respondent that a jurisdictional question may be
raised in Case No. 9-RC-4155, Respondent has not enlightened me and I remain
at a loss as to what inference I may draw therefrom which would effect con-
sideration of its "jurisdictional challenge." Under the circumstances , I have con-
cluded that . the jurisdictional requirements have been met in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Union, Milk, Ice Cream Drivers and Dairy Employees Local 783, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
PLAINVIEW FARMS, INC. 937
America , as admitted by Respondent ; is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The issues to be resolved are whether or not Respondent violated Section-8(a) (3)
and (1) of the Act by discharging Charles R. Smith and Shellie Richardson on
March 31, 1960, and April 14,. 1960, respectively, because of their activities on be-
half of the Union and whether or not Respondent, as alleged, violated Section
8(a)(1) of the Act by interrogating and threatening various of its employees during,
the months of March and April 1960.
The Union commenced a campaign to organize Respondent's employees in the
early part of 1959, according to the testimony of both Norbert Blume, assistant busi-
ness representative of the Union, and Charles R. Smith, who, at that time and up to
the date of his discharge, was a driver for the Respondent servicing its "wholesale"
customers. Blume encountered Smith in March 1959 while Smith was "on his
route," introduced himself, and discussed with him the possibility of organizing
Respondent's employees. Smith accepted union authorization cards from him and
thereafter until his discharge Smith solicited his fellow employees to sign cards,
distributing about 25 in the course of this activity. On two occasions during the
month of April 1959, Blume distributed letters and authorization cards to Respond-
ent's employees at the entrance of its plant.
In the summer of 1959 Smith talked'to Shellie Richardson about the Union and
gave him an authorization card. Richardson, who was also a wholesale route
driver at that time and up to the date of his discharge, testified that he signed and
mailed the card to the Union some few months later. He also testified that from the
summer of 1959 until March 31, 1960, he talked to various drivers about the Union;
approximately eight during the first few months of 1960, and also notified several of
the union meeting called for March 31, 1960.
On January 14, 1960, Blume metD with six of Respondent's employees at the
union office, including Smith and Richardson, to discuss the organizational campaign.
On or about March 24, 1960, Blume and Smith decided to call a meeting of the
employees on March 31, 1960. Smith arranged for the .use of the Eagle's Hall in St.
Matthews (which is located near the plant). Blume sent invitations to attend the
meeting to those employees whose names and addresses were furnished to him by
Smith. Approximately 35 employees attended the meeting. Some few hours before
the meeting Smith was notified that he was discharged. On April 3, 1960, Blume,
for the first time during this campaign, requested recognition of the Union by tele-
gram sent to the Respondent. On April 14, 1960, Richardson was notified that he
was discharged. It appears from the record that Smith and Richardson, primarily
Smith, were the most active of Respondent's employees in promoting the Union's
organizational efforts.
A. The violations of Section 8(a) (1)
All of the testimony of General Counsel's witnesses in support of the allegations
in the complaint of unlawful threats and interrogation stands uncontradicted, and
there appears to be no reason why it should not be credited in its entirety. The com-
plaint alleges that Respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed them in Section 7 of the Act for the purpose
of discouraging membership in the Union by certain acts of four of its supervisors
,(R. C. Tway, who is president of the Company; Bill Tway, son of R. C. Tway and
general manager; one Morgan, who was identified during the course of hearing as
Bruce Morgan, credit manager; and Neal Watson, sales manager).
(1) As to the conduct of R. C. Tway, it is alleged that on or about April 2, 1960,
he interrogated employees in regard to their union affiliations. Four employees
(James W. Mooney, Jr., Terrv H. duPont, Vernon Morrell, and Shellie Richardson)
testified that on April 2, 1960, when they reported in from their routes, they were
told individually that R. C. Tway wanted to see them. Each testified that. in the
course of his respective conversation with Tway, Tway questioned them as to their
union sentiments. Of Mooney he asked what he "thought about a union." Of
duPont he asked whether he had attended the union meeting on March 31, 1960,
and if he "thought a union was necessary." Of Morrell he asked how he "felt about
the Union." Richardson testified. ". . . he [Twayl asked me about the Union,
and T told him that just whatever the men went for that I was with them. And he
asked me if I had ever belonged to a Union, and I said yes. And he said, `Well, you
sound like you are for it.' " In addition to the above, duPont testified that Twav,
after questioning him, stated that, if the Union came in. he (duPont) would lose his
Christmas bonus and receive a lower guarantee on his commissions.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2)' As to the "conduct of *Bill Tway, it is, alleged that on or about April' 7, he
threatened to discharge one of the employees if he talked about the Union with his
fellow employees. Shellie Richardson testified as to a conversation he had with
Tway about a week prior to his (Richardson's) discharge (which occurred on
April 14,.1960): "I had asked him about a cut in my commission, and he told me I
had other things to worry about if I didn't keep my mouth shut to the men about the
Union I would be down seeing Mr. Haynes about a job." The only "Mr. Haynes"
disclosed in the record is Howard Haynes, official of the Union, and I assume that
the reference was to him.
(3) With respect to the conduct of Bruce Morgan, it is alleged that, during the
month of March 1960, he interrogated two employees as to their affiliations with
the Union and of one as to union meetings. Smith testified that in late February or
early March 1960, Morgan asked him if he knew anything "about this Union talk
that's been going around here." Smith denied having any knowledge of it. About
2 days before the union meeting of March 31, 1960, according to Mooney's testi-
mony, Morgan asked him if he "knew anything of a Union meeting that was going
to be held on that following Thursday night," and if he "knew where and when
and what time it was going to be." Mooney replied that he did not know. Morgan
again asked. Mooney the same questions on the afternoon of March 31, 1960.
Prior to the meeting, Morgan asked Mooney to attend it and list those who were
present. A few days after the meeting, Morgan asked him who was there and
what was said. Mooney gave him two or three names and reported what the
union officials said they would try to do for the employees.
(4) With respect to the conduct of Neal Watson, it is alleged that on or about
March 29, 1960, he interrogated an employee as to his union affiliation and told him
to have nothing to do with the Union. According to duPont's testimony, on March
29, 1960, Watson questioned him as to his knowledge of the Union and if he knew
when and where the union meeting was to be held. When duPont answered in the
negative, Watson said that he "knew when aii where the Union meeting was going
to be held, and what driver was behind trying to get the Union into the dairy, and
that he would take care of the matter in his own way." Further, duPont testified
that Watson told him to get his mind "off this foolishness" and get it on his job. On
March 31, 1960, Watson questioned Mooney whether he knew when and where the
union meeting was to be held. Mooney further testified that in the course of this
conversation Watson said: "Well, I know who is the head of trying to get this Union
in out here for you fellows and I will talk [sic]-take care of him later." Mooney
also testified that a few days after the meeting Watson asked him if he had attended it.
Respondent in its brief does not attempt to discredit the foregoing testimony which
was neither explained nor denied, but contends: "None of these witnesses were
threatened with reprisals in connection with such questioning and consequently no
atmosphere, based on management conduct, exists to convert such questioning into
violations of 8(a)(1)." I find no merit in this contention. It is unnecessary to con-
sider, its legal sufficiency for it is predicated upon a patently erroneous appraisal of
the evidence. The uncontradicted testimony which I have credited clearly demon-
strates antiunion animus and discloses that there were threats of economic reprisal
by R. C. Tway (testified to by duPont), by Bill Tway (testified to by Richardson),
and by Watson (testified to by duPont and Mooney). This case is clearly distin-
guishable from Blue Flash Express, Inc., 109 NLRB 591, in which it was held that
interrogation is permissible under certain conditions not present in the instant case.
See American Furniture Company, Inc., 118 NLRB 1139; Petroleum Carrier Cor-
poration of Tampa, Inc., 126 NLRB 1031; and Mrs. Owen E. Brennan, Sr., et al.
d/bla Brennan's French Restaurant, 129 NLRB 52.
Therefore, I am led to conclude that the Respondent herein violated Section
8(a) (1) of the Act by unlawful interrogation of its employees as to union activities
and affiliation and by unlawful threats of economic reprisal in order to discourage
their employees from union adherence.
B. The violations of Section 8(a)(3)
1. With respect to Charles R. Smith
Smith was a wholesale route driver for Respondent, and was in its employ from
March 1957 until his discharge on March 31, 1960. General Counsel contends that
he was discharged because of his activity on behalf of the Union. Respondent con-
tends that he- was discharged for cause and that General Counsel has not maintained
the burden of proving "employer knowledge" of Smith's union activities.
PLAINVIEW FARMS, INC. 939
General Courisel'called Neal Watson as a witness under Section 43(b) of the Rules
of Civil Procedure for the District Courts of the United States who testified substan-
tially as follows : He (Watson ); as sales manager of the Respondent , has the sole
authority to hire and fire drivers- and no bne^ else has the authority to make recom-
mendations for discharge . He discharged Smith because "He was coming in early
and not taking care of his job properly ." He has never discharged an employee
without prior warning. He did not testify that he gave Smith prior warning and
Smith testified that he had not been so warned.
. To continue with Watson 's testimony, the Company does not maintain a record
of the time drivers return but he noticed Smith come in before 1 p.m. (the time at
which drivers are permitted to start unloading ) more often than other drivers. His
testimony is somewhat confused at this point. He testified that he (Watson) nor-
mally got to the plant between 1 and 1:30 p.m., but therefore added that he some-
times arrived before 1 o'clock. He further testified that no other wholesale drivers
came in before 1 p.m., and then changed his testimony to "He [Smith] is the one we
noticed that came in more than anyone else that came in before 1 o'clock." He
testified that Smith started coming in early about 3 to 6 months prior to his dis-
charge and did so a majority of the time . Later he testified that in this period he did
not remember Smith coming in early more than 10 times , but that it was at least 10
times.
Watson's testimony with respect to the assertion that Smith was not servicing his
route properly was substantially as follows: About 3 or 6 months prior to Smith's
discharge complaints started coming in from customers on Smith 's route . There were
three of four of them, but he could only remember two. There was a complaint from
Beecher's Market about 3 or 4 months prior to Smith's discharge that Smith was not
picking up cases and rotating milk. There was a similar complaint from Thomp-
son's grocery about 2 or 3 months prior to Smith's discharge. He made no investiga-
tion of the complaints . Respondent asked no questions of Watson at the conclusion
of General Counsel 's examination of this witness, nor did Respondent recall Watson
as its own witness to rebut testimony of Smith or of other of General Counsel's wit-
nesses who testified as to the conduct and statements of Watson.
Smith's testimony is substantially as follows: On March 31 , 1960; he came into the
office about 2:15 p.m. and was told that Watson wanted to see him. He went into
Watson's office where Watson told him, "You've been getting in off your route'too
early." Smith replied that business was slightly down , that several large stops, such
as Churchill Downs, the racetrack , were not operating and that when they resumed
he would have to be putting in more time. Watson said that "that wasn't so and that
he knew for a fact that I was getting in early every day and that he had a little list
of names." Smith read his name "upside down" on the list which Watson said was
` of the times that the men had been coming in." He pointed out to Watson, "You
can see for yourself my name is fifth or sixth from the top, that I was not the first man
in here as you so stated.
Watson gave no other reason for the discharge than that he was coming in early
and "that the route was down," or that he was not doing his work properly. Smith
testified that his route was down in March only 1 or 2 percent from the preceding
month on a total of approximately $ 1,000 in sales per week . Respondent offered no
evidence to contradict Smith's testimony as to his sales record or to show how much,
if any, decline there was in Smith's sales for the 3 to 6 months preceding his dis-
charge. Smith further testified, and his testimony is not contradicted, that he had
never received a "warning" from any of his supervisors that he would be discharged
if he persisted in coming in early, because his route was "down ," or because he was
not servicing his route properly.
There is considerable amount of testimony in the record of both General Counsel's
and Respondent 's witnesses as to the nature of the complaints by Smith 's customers
and whether they were Smith's fault . I do not find this testimony relevant , since for
the most part there is no showing that Watson , who made the decision to discharge
Smith, had knowledge of the details contained in such testimony or whether, if he
had knowledge of some aspects of these details, he took them into consideration.
Watson, himself , testified that he made no investigation of the complaints which indi-
cates to me that he did not, at least at the time they were made, consider them of
much importance. Furthermore, I do not believe that customers' complaints played
any role in the decision to discharge Smith, for the last one of which Watson tes-
tified that he had knowledge occurred some 2 or, 3 months prior to the decision. In
addition, Watson's testimony that he had never had such a complaint about any
other driver was hardly credible. Upon questioning by the Trial Examiner.he
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
modified this statement by limiting it to "the last three months." However, he-
could not remember . receiving a similar complaint with respect to any other driver
in the last 5 years. There ,is credible testimony that such complaints were not in-
frequent with respect to other drivers as well as Smith.
There is also quite a bit of testimony that certain customers on Smith 's route
stopped purchasing from the Respondent and as to whether Smith was responsible-
therefor . None of this testimony appears to be relevant for there is no showing that
Watson's decision to discharge Smith was predicated upon any of these incidents.
It is apparent that at times Smith did "come in early." His own testimony indicates,
that he did , for he testified that he told Watson that he was coming in early because
some of his major stops , such as Churchill Downs, were temporarily suspended and
that he would be staying out later when they resumed operations . However, I am
far from convinced that this was what motivated the discharge . Watson admitte&
that the "crime" was not coming in early and that if Smith had serviced his route
properly nothing would have been said. However, Watson's testimony fails to dis-
close any convincing evidence of Smith 's failure to service his route properly which
he took into consideration in arriving at his decision to terminate Smith's employ-
ment. Claude M. Combest , route foreman , testified that about a week prior to
March 31, 1960 , the date of Smith's discharge , he (Combest ) and Watson talked
about the complaints they had received with regard to Smith and that he had not
improved . According to Combest , Watson said that the only way to "remedy it"'
was to "let him go." However , Combest also testified that the last complaint regard-
ing Smith was received about 2 months prior to his discharge at which time he-
discussed it with Watson . Since there was no subsequent complaint, it is difficult
to ascertain in what respect Smith had not improved . When asked by General
Counsel in what way Smith's performance was not satisfactory in the intervening
2 months between the last complaint and his discharge , Combest stated that Smith
was coming in too early. Although the "crime" was not coming in too early but
the failure to service his route properly, there is no evidence in the record of what
Watson or Combest considered as indicating that Smith failed to service his route
properly during this intervening period other than his early arrivals.
On the other hand there is the timing of the discharge , the very day of the first
meeting to which employees of Respondent were invited on a large scale by the
Union . There are several factors which lead me to conclude that this was more than
a mere coincidence . During Smith 's employment over a period of 3 years Respond-
ent found no fault with Smith 's performance until the Union 's campaign became
more vigorous . But more important , there is a substantial amount of uncontradicted
evidence which I have credited disclosing that the Respondent knew the meeting of
March 31, 1960 , was to be held. Furthermore , two witnesses testified that Watson
claimed to know who the ringleader was among the employees in the Union's organ-
izational campaign , and that he made what I consider to have been a thinly veiled
threat to discharge him. Watson neither denied nor explained the statements to
which these witnesses testified . From the record it is clear that Smith was the ring-
leader among Respondent 's employees in the organizational campaign . Thus it
appears that the record demonstrates that Respondent exhibited hostility toward the
Union , and had knowledge of the Union's campaign and of the fact that Smith was
playing an important role in it.
In view of the foregoing , and from my observation of the witnesses, I am of the
opinion that Watson did not discharge Smith for cause, as claimed by Respondent,
but because of Smith's activities on behalf of the Union . Respondent thereby vio-
lated Section 8(a) (3) and ( 1) of the Act.
2. With respect to Shellie Richardson
Richardson , a wholesale route driver for- Respondent , was in its employ from
June 1956 to the date of his discharge , April 14, 1960 . In the complaint it is alleged,
which Respondent in its answer denied , that Richardson was discharged "because of
his sympathy for and activities on behalf of the Union."
As has been previously stated , Watson testified that he was the sole authority to
hire and fire drivers, but he further testified that he did not know who made the
decision to discharge Richardson , who notified Richardson of his discharge, or who
in management would know. No one discussed Richardson 's discharge with him
(Watson ) and in his opinion Richardson was doing a satisfactory job. When asked
if he knew of any other instance in which someone other than himself discharged
a driver, he answered in the negative , but he also testified that he did not know if
this was the first time that it has happened.
PLAINVIEW FARMS, INC. 941
Combest, route foreman, testified that he learned about Richardson's discharge
;about 15 minutes prior thereto when Bill Tway told him, but he was not given nor
did he ask the reason therefor. He had not been previously consulted about it.
•Combest confirmed- Watson's testimony as to the latter having sole authority to dis-
,charge drivers, and also testified that to his knowledge Richardson's job perform-
ance was satisfactory up to the time of the termination of his employment.
Apparently in order to furnish a cause for Richardsons discharge, Respondent
called as witnesses Woodson McGraw, a 'clerk, and R. K: Hughes, .treasurer of
the Company. McGraw testified that Richardson frequently failed to turn in
"tickets" upon returning from his route .and that, at the end of February 1960, he
reminded Richardson of the need to do so daily so that accurate records could be
kept of his accounts. Richardson admitted that he occasionally forgot to turn them
in at the end of the day when he was in a hurry. McGraw further testified that he
talked to Bill Tway about difficulties with Richardson's accounts in the latter part
of January or early part of February and that Tway told him to look into the prob-
lem. There was no evidence submitted to establish that this "problem" was ever
again called to the attention of Tway.
Hughes testified as to action which he commenced in the latter part of April (after
Richardson's discharge) with reference to clearing up Richardson's accounts so that
his bond could be released. He had a survey made apparently with respect to Rich-
ardson's account with one of his customers. However, Respondent failed to establish
any connection between the testimony of Hughes and the decision to discharge
Richardson. The survey was admitted into evidence for the limited purpose of
corroborating Hughes' testimony that such a survey was made. The Trial Examiner
warned that it was not received as proof of the truth of any of its contents, since
it was not the best evidence thereof. The Respondent has not established that there
were any discrepancies in Richardson's accounts, and Respondent admitted that it
does not contend that Richardson "was guilty of any deficiency or peculation or
any other improper conduct." Respondent does contend that the testimony discloses
that there was a suspicion of irregularities in his accounts which was the basis for
the discharge and that such suspicion should be taken into consideration in connec-
tion with any remedial order which may be issued. The testimony reveals that up
to the time of the hearing Respondent had not as yet determined what discrepancies,
if any, there were in Richardson's accounts.
As to the reason for the discharge, there is no showing that Bill Tway decided to
discharge Richardson because of such "suspicion," or, for that matter, that he even
entertained such suspicion. Bill Tway was not called as a witness. Therefore, there
is no testimony from him as to the reason for his termination of Richardson's em-
ployment or in refutation of any of Richardson's testimony. No explanation was
offered by Respondent for not calling Tway as a witness.
Richardson testified without contradiction, as stated above, that he had a conver-
sation with Bill Tway -about a week prior to his discharge during the course of which
Tway told him to keep his "mouth shut to the men about the Union" or he would be
looking for another job. As to the event of the discharge there seems too little or
no conflict in the testimony. On April 14, 1960, Richardson, having returned from
his route, was told to report to Watson's office in which he found Watson, Combest,
and Bill Tway. The latter walked out of the office and Watson indicated to Richard-
son that he was to talk to Tway. Richardson followed Tway outside the office where
Tway handed him an envelope containing his paycheck and said, "That's it." Upon
being asked what he meant Tway said, "Well; I figure I can get somebody to run
your route and take care of it better than you are. You are not wholeheartedly
behind Plainview."
In view of the foregoing it appears quite clear that any contention by Respondent
that Richardson was discharged for cause would have little substance. The cause is
not directly asserted in any of the testimony elicited, but, at the most, can only be
ascertained by way of inference so remote that it cannot be seriously considered.
Thus, I must conclude that Respondent has failed to-demonstrate any reason for
the discharge. It appears that only Tway, himself, is in a position to reveal what his
reason was for discharging Richardson, for no one testified that he was consulted by
Tway with respect to taking such action or was informed of the reason. - While I
will not indulge in speculation as to why Tway was not called upon by Respondent
to testify, I have taken into consideration Respondent's failure to elicit testimony as
to the reason for the discharge in arriving at the determination that General Counsel
has sustained the burden of proof of the. pertinent allegation in the complaint.
N.L.R.B. v. Condenser Corporation of America, 128 F. 2d 67, 75 (C.A. 3).
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is quite clear that an abnormal procedure was followed in terminating Richard-
son's employment. Tway, in taking the action he did, did not even inform Watson
that he' was going to do so, despite the fact that Watson had the sole authority to
discharge drivers. From this, it can be presumed that Tway bore a strong animosity
toward Richardson which caused him to take the matter of Richardson's discharge
into his own hands in complete disregard of Respondent's normal procedure and of
Watson's exclusive authority. The only plausible explanation for this animosity
which can be found in the record is contained in the uncontradicted testimony of
Richardson that about a week before his discharge Tway threatened him with the
loss of his job if he did not stop talking to the other employees about the Union.
In view of the foregoing it appears reasonable to conclude that Richardson, who
was active in the promotion of the Union's organizational campaign, was discharged
for such activity and that thereby Respondent violated Section 8 (a) (3) and (1) of
the Act. - I do not. find any reason for taking into consideration, as requested by.
Respondent, the "suspicion" of irregularities in Richardson's accounts with respect
to the remedial order which I shall hereinafter recommend, since there is no evidence
of the nature and extent of the irregularities, or, for that matter, that any existed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection 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
thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices;
I shall recommend that it be ordered to cease and desist therefrom-and take certain
affirmative action in order to effectuate the policies of the Act.
Having found that the Respondent discriminated with regard to the hire and
tenure of employment of Charles R. Smith and Shellie Richardson, I shall recom-
mend that the Respondent offer them immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any loss of pay suffered by
them, as a result of the discrimination, by payment to them of a sum of money
equal to the amount they would have earned from the dates of their discharge to
the date of the offer of their reinstatement, less their net. earnings to be computed
on a quarterly basis in the manner established by. the Board in F. W. Woolworth
Company, 90 NLRB 289, 291-294. I shall also recommend that the Respondent
make available to, the Board,, upon request, payroll and other records to facilitate
the determination -of the amount due under this recommended remedy.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall there-
fore recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon the rights guaranteed to its employees by Section 7 of the
Act.
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. By discriminating in respect to the hire and tenure of employment of Charles
R. Smith and Shellie Richardson, thereby discouraging membership-in Milk, Ice
Cream Drivers and Dairy Employees Local 783, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and -Helpers of America, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
2. By the foregoing conduct, by interrogating employees with respect to the activ-
ities of the Union and their affiliations with it, by threatening its employees with eco-
nomic reprisals should they select the Union as their bargaining representative or par-
ticipate in its organizational campaign, the Respondent has interfered with, restrained,
and coerced employees in the exercise of their rights guaranteed in Section 7 of the
Act, and, thereby the Respondent 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.]