Wilson & Co., Inc.

National Labor Relations Board - Board Decisions

Feb 7, 1956

115 N.L.R.B. 327 (N.L.R.B. 1956)

WILSON Lc COMPANY, INC. 327
IT is rmREBY ORDERED that the said motion be, and it hereby is, de-
nied because there is sufficient basis shown in the motion and in the
record as a whole for instituting a collateral hearing.
By direction of the Board : 2
OGDEN W. FIELDS,
Associate Executive Secretary.
I Member Rodgers is of the opinion that the motion and the contentions of the parties
noted in the Board's Decision and Order provide sufficient information to warrant fur-
ther investigation into the issues raised. United States Plywood Corporation , 112 NLRB
1471 , footnote 2. Accordingly , he would grant the motion.
Wilson & Company, Inc. and Office Employees International
Union, Local No. 21 , AFL-CIO.' Case No. 10-CA-2264. Febru-
ary 7,1956
DECISION AND ORDER
On September 1, 1955, Trial Examiner Arthur Leff issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the Intermedi-
ate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Wilson & Company, Inc.,
Atlanta, Georgia, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Office Employees International
Union, Local No. 21, AFL-CIO, or any other labor organization of its
employees, by discriminating in regard to their hire or tenure of em-
ployment or any term or condition of employment.
(b) By threats of reprisal, promises of benefit, or in any other man-
ner interfering with, restraining, or coercing its employees in the
I The AFL and CIO having merged after the hearing in this case, we are amending the
identification of the affiliation of the Union.
115 NLRB No. 58.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of their right to self-organization, to form, join, or assist the
aforesaid labor organization, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or 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 con-
dition of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which it is found will effec-
tuate the policies of the Act :
(a) Offer to Frederick B. Danese immediate and full reinstatement
to his former or substantially equivalent position without prejudice to
his seniority or other rights and privileges, and make him whole in
the manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Preserve and make available to the Board or its agents upon re-
quest; for examination and copying, all payroll records, social-secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of back pay due
under the terms of this Order.
(c) Post at its branch office at Atlanta, Georgia, copies of the notice
attached hereto marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by an authorized representative of the Respondent,
be posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
2 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 :
WE WILL NOT discourage membership in Office Employees Inter-
national Union, Local No. 21, AFL-CIO, or any other labor or-
WILSON & COMPANY, INC. 329
ganization , by discriminating in regard to the hire or tenure of
employment or any term or condition of employment of any of
our employees.
WE WILL NOT by threats of reprisal, promises of benefit, or in
any other manner interfere with, restrain, or coerce-our employees
in the exercise of their right to self-organization, to form labor
organizations, to join the aforesaid labor organization, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activ-
ities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities, except
to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
WVE WILL offer Frederick B. Danese immediate and full rein-
statement to his former or a substantially similar position without
prejudice to his seniority and other rights and privileges and
make him whole for any loss of pay suffered as a result of the dis-
crimination against him.
All our employees are free to become, remain, or refrain from becom-
ing or remaining, members of any labor organization, except as that
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in Sec-
tion 8 (a) (3) of the Act. We will not discriminate in regard to the
hire or tenure of employment or any term or condition of employment
against any employee because of membership in or activity on be-
half of any labor organization.
WILSON & COMPANY, 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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge having been filed against Wilson & Company , Inc., herein called the
Respondent , by Office Employees International Union , Local No. 21, AFL, herein
called the Union, the General Counsel issued a complaint alleging that the Respondent
had engaged in unfair labor practices within the meaning of the National Labor
Relations Act, 61 Stat . 136, herein called the Act. The complaint alleged in sub-
stance that the Respondent violated Section 8 (a) (3) by discriminatorily dis-
charging Frederick R. Danese on February 25, 1955, because of his union and
concerted activities, and that it violated Section 8 (a) (1) by such conduct as well
as by other specifically alleged acts of interference , restraint , and coercion. The
Respondent in its answer denied generally the complaint 's allegations relating to
the commission of unfair labor practices.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held on July 6, 7, and 8, 1955, at Atlanta,
Georgia, before the Trial Examiner duly designated by the Chief Trial Examiner.
The General Counsel and the Respondent were represented at the hearing by counsel
and were afforded full opportunity to examine and cross-examine witnesses and to
introduce evidence bearing on the issues. At the opening of the hearing the Re-
spondent moved to dismiss the complaint's Section 8 (a) (1) allegations, other
than those predicated upon Danese's discharge, upon the ground that such allega-
tions were not supported by a valid charge. The motion was denied.' At the'close
of the General Counsel's case, a motion of the Respondent was denied to dismiss
for failure to make out a prima facie case the complaint's allegations of independent
interference, restraint, and coercion. At the close of the entire case, ruling was
reserved upon motions of the Respondent to dismiss the complaint for failure of
proof. Such motions are now disposed of in accordance with the findings of fact
and conclusions of law made below. Opportunity was afforded all parties to argue
orally upon the record and to file briefs and proposed findings and conclusions.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Respondent, a Delaware corporation with its principal offices at Chicago,
Illinois, maintains a branch house at Atlanta, Georgia-alone involved in this pro-
ceeding-where it is engaged in the packing and sale of meat and meat products.
Altogether, the Respondent operates 9 meat packing plants and about 85 branch
houses in different States throughout the United States. In its overall operations
the Respondent ships goods valued in excess of $250,000 directly across State lines.
The Atlanta branch is an integral part of the Respondent's overall operations. Dur-
ing the past year the out-of-State purchases of the Atlanta branch exceeded
$1,000,000.
II. THE LABOR ORGANIZATION INVOLVED
Office Employees International Union, Local No. 21, affiliated with the Ameri-
can Federation of Labor, is a labor organization within the meaning of the Act, ad-
mitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
At its Atlanta branch the Respondent employs approximately 80 employees of
whom about 11 are salesmen, 7 are office employees, and the balance are produc-
tion and maintenance employees and truckdrivers.2 Employees other than the sales-
men and office employees have for some time been represented by the United Pack-
inghouse Workers of America, C. I. O.
In January and February 1955 there was dissatisfaction among members of the
branch's office and sales forces. On the part of the office employees, the dissatisfac-
tion stemmed from a number of unresolved grievances relating to working condi-
tions, and on the part of both the office and sales forces from a feeling that in com-
parison with the organized employees they were being unfairly treated as to wage
rates. Toward the end of 1954, the United Packinghouse Workers had won a
retroactive wage increase for employees it represented, but the wage rates of the
other employees had not been adjusted to keep pace with that increase.
The salesmen's dissatisfaction was expressed at a meeting held by them on January
7, 1955, at a restaurant near the plant-known as the D & B Restaurant. At the
meeting the salesmen elected Frederick B. Danese to act as their spokesman with
management. Later that day, at a regularly scheduled company sales meeting held
at the branch, Danese expressed the salesmen's views and asked Branch Manager
Ralph Treon what the Company planned to do about the salesmen's wage grievance.
1 The charge filed on March 1, 1955, alleged that the Respondent had engaged In unlaw-
ful interference, restraint, and coercion by Danese's discharge and by "other acts and
conduct." Mid-States Steel and Wire Company, 112 NLRB 800, and New York Shipping
Association, 112 NLRB 1047, upon which the Respondent relied In support of its motion,
are Inapposite.
2 The Atlanta branch is 1 of 16 branches administratively grouped by the Respondent
in its southeastern district , a district covering generally the area south of the Ohio River
and east of the Mississippi . The total complement of employees within that district
amounts to approximately 800.
WILSON & COMPANY, INC. 331
After the meeting Treon reprimanded Danese for raising the wage question, stating
that Danese's remarks were entirely out of place and uncalled for.
During January and February there was talk among the unorganized employees
of enlisting the assistance of an outside bargaining agency. Formal organizing ac-
tivities, however, did not begin until February 21, 1955. On that day, a number of
the accounting department employees went to the office of the Charging Union in
this case, obtained the Union's consent to represent the unorganized employees at the
branch, and received union designation cards for employee signature. Organizing
activities began that day. February 22 was a holiday. On February 23, Danese,
whose discharge 2 days later is attacked in this proceeding as discriminatory, became
active in soliciting union designations from the salesmen. Danese, as appears from
his testimony, obtained a batch of designation forms, personally distributed them to
about nine salesmen, and actively "talked up" the Union among the salesmen. Within
the next day or two Danese personally succeeded in obtaining about six signed des-
ignation cards from salesmen.
Branch Manager Treon testified that it was not until Saturday, February 26, the
clay after Danese's discharge, that he first heard of union organizational activity
among the officeworkers and salesmen.3 I find Treon's testimony implausible in that
regard and do not credit it. Other management representatives conceded under
cross-examination that they became aware of union organizational activities at an
earlier date, and I cannot believe the information they acquired was kept a secret
from the branch manager. Thus, Henry Hudson, the Respondent's beef manager,
testified that he heard "quite a bit" about the Union as early as February 23 as a re-
sult of general talk about the plant. Gordon Lee Pruitt, the office manager, ad-
mitted that "rumors" were "floating around" of organizational activity among office
employees prior to February 25; that he had discussed the subject of such organiza-
tional activities with Superintendent Carl Smith; and that he had also made a report
on it to Gurley P. Garrett, the Respondent's southeastern district auditor attached
to the Respondent's Chicago payroll, with the comment to Garrett that it was "well
worth him looking into." 4 Garrett, while testifying, conceded that he might have
found out about union organizational activities as early as February 21. Garrett's
actual awareness before February 25 is confirmed by credited testimony disclosing
that in a conversation with a number of office employees on Tuesday, March 1, Gar-
rett stated to them in substance, "We have known [about the union activities] since
the early part of last week and you would be surprised to learn how we found out." 5
Another circumstance, when considered in context with events that followed, also
confirms through inference the Respondent's awareness of union activities during the
week beginning February 21. Thus, undisputed evidence shows that management
officials during that week visited other packinghouse plants in the area to compare
wage rates at such plants with those paid officeworkers at the Respondent's Atlanta
plant.
At about 4 p. m. on Wednesday, February 23, Beef Manager Hudson cautioned
Danese about union organization activities .6 Immediately before, Danese had been
engaged in union solicitation activities among salesmen at the loading platform in
front of the plant. Hudson, in the words of Danese, "walked up to me [Danese]
and said somebody was going to get in trouble about trying to form a union in the
9 Treon testified that his first intimation of union activity came from a former employee,
Zakas, who had been drafted into the Army in January and who visited him that day while
home on a furlough. According to Treon, Zakas asked him what he knew about the or-
ganizational activities, and when he said he knew nothing, Zakas left to speak to Laura
Moss, an officeworker active in the Union, and later to visit Danese at his home, after
which Zakas reported to him that most of the employees had already signed up. Danese
testified with conviction that Zakas did not in fact visit him at that time.
A Pruitt at first expressed reluctance to disclose the source of his information concern-
ing union organization, stating that it would "violate [his] word to give this informa-
tion." When directed to answer Pruitt stated that the information had come from Brooks,
the sausage foreman . Pruitt did not explain why Brooks should have pledged him to
secrecy.
6 Employees Laura Moss , Mildred Johnson , Carlon Shockley, and Bertha Hicks so testi-
fied. By their overall testimony these witnesses impressed me as reliable and I credit them
notwithstanding Garrett's denial.
6It is undisputed that Hudson is a supervisor within the meaning of the Act. It
appears, however, that his supervisory authority extends only to laborers who work in
the beef cooler at the Atlanta plant . He has no direct supervisory authority over sales-
men or officeworkers , but as part of his duties he advises salesmen as to established meat
prices and instructs them on what items to push in their sales.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office and sales department." He also told Danese that Garrett had questioned him
and other department heads about the formation of a union several days before.
Hudson added, however, that Danese "could rest assured that he [Hudson] wouldn't
tell them anything that could get us in trouble." 7
On the following day, Thursday, February 24, Employee Bertha Hicks, an office-
worker, asked Hudson whether he knew who had told management that 'the em-
ployees were forming a union. Hudson did not answer her question directly, but in
the course of their conversation stated, "Someone is going to get hung tomorrow to
scare the rest of you out of the union." When Hicks asked Hudson how he knew,
his only reply was, "That is all right, you will see, someone is going to get hung." 8
The next day Branch Manager Treon discharged Danese without prior warning.
Treon told Danese that he had to let him go because Garrett had reported to Chi-
cago that Danese was spending too much time off his territory and in the D & B
Restaurant and because Chicago, as a result of that report, had requested Danese's
dismissal. Other facts and circumstances relating to Danese's discharge, and to the
genuineness of the reasons asserted for it, will be considered in detail in a subse-
quent subdivision of this report.
On Saturday, February 26, Beef Manager Hudson spoke to Salesman Fred Wood'
about Danese's discharge while the two were arranging the delivery of beef to a new
store. Wood testified that the subject was initiated by Hudson who told him that
"this union was hotter than a firecracker but he [Hudson] thought it had cooled off
now that Danese had been fired." Hudson's version was different. He admitted hav-
ing a conversation with Wood at that time, but testified:
I don't think the word "fired" was even mentioned. He [Wood] asked me, "How
do you think it is?" I said, "I don't know. Maybe it will cool down now, maybe
people will get to talking to one another again now Danese is gone."
To the extent the versions of Wood and Hudson are in conflict, I credit Wood. The
likelihood that Hudson attributed Danese's discharge to his union activities, as Wood's
testimony suggests, finds support in the testimony of another witness, Clifton
Vaughan, who was called by the Respondent and whose overall testimony reveals him
as a disinterested witness of unquestionable veracity. Vaughan had been employed
as assistant branch manager at Atlanta until about mid-January 1955, when he volun-
tarily left. He testified under questioning by the General Counsel that during a social
visit to the plant shortly after Danese's discharge, Hudson told him that the salesmen
and accounting department employees were trying to start a union, that Danese had
instigated it, and that he had been fired for it .9
7 Hudson admitted he had a conversation with Danese at the time, but denied that it
took the above form as testified to by Danese. According to Hudson, Danese started to
tell him something about the Union, and he stopped Danese short, stating that he did not
want to know anything so that if "anyone asked I couldn't answer." Hudson denied warn-
ing Danese that "somebody is going to get in trouble about forming this union," but then
added, "I told him to leave it alone. It was hotter than a firecracker." On cross-exami-
nation, Hudson testified as follows :
Q You said on direct examination that you told him something about this union
being hotter than a firecracker, and that if you were him you would stay away from
it. Is that what you said?
A. Yes, sir, I told him to leave it alone rather than stay away.
Danese in the main impressed me as a credible witness. As will more fully appear below,
other testimony of Hudson is in conflict with that of other witnesses, including one called
by the Respondent, who had no direct interest in the outcome of the case and whose
veracity on other material matters was not substantially questioned. For these reasons,
and because of Hudson's partial admission, I credit Danese over Hudson to the extent
their respective versions may be deemed at odds.
8 The findings made in this paragraph are based upon Hicks' credited testimony. Hud-
son admitted that Hicks asked him about the source of management's information regard-
ing the Union, but denied making the remarks attributed to him by Hicks. Hicks im-
pressed me as a forthright witness with no predisposition to aid the General Counsel's
case by embellishing her testimony beyond her exact recollection. Moreover, undisputed
evidence shows that Hicks related this incident to her supervisor, Pruitt, and to Garrett
in a conversation with them shortly thereafter-and before this proceeding was begun.
Under the circumstances I am unable to believe that her testimony was contrived, and I
accept her testimony over Hudson's denial.
Y Hudson admitted having a conversation with Vaughan at the time in which Danese's
name was mentioned, but denied saying anything to Vaughan about the reason for Danese's
termination . Hudson's denial is not credited.
WILSON & COMPANY, INC. 333
The next regular workday after Danese's discharge was Monday, February 28.10
On that day, the Respondent arranged to have its office employees and its salesmen
meet with management officials in separate meetings. The meetings were set up by
Milton Meyers of the Respondent's industrial relations staff in Chicago. Meyers had
come to Atlanta upon learning of the organizational activities that were being con-
ducted among the officeworkers and salesmen.
The first meeting was held that morning at Meyers' suite at the Atlantan Hotel. It
was attended by all office employees, except the cashier, at the direction of Office
Manager Pruitt. Meyers, Garrett, and Pruitt were present for management. Meyers
opened the meeting by stating it had been brought to his attention that the employees
were dissatisfied with their working conditions and had sought the aid of an outside
agency. It would be better, he said, for both management and the employees to
work out their differences directly without the intervention of an outside agency.
The Company, he explained, had called the meeting for the purpose of seeing whether
that could not be done. He also informed the employees present that management
would meet with the salesmen later that day. Meyers then called upon the em-
ployees to state their grievances. The employees told him of their unremedied com-
plaints, some of long standing, with regard to working conditions, including the
lack of adequate heat in winter, poor ventilation in summer, and inadequate sick pay
and holidays. They particularly stressed their complaint over the failure of the Com-
pany to grant them wage increases in line with those given the union-represented em-
ployees in other departments. In response, Meyers stated that he would attempt to
obtain air-conditioning equipment, and that while he could not definitely promise
them such equipment, he was prepared at that time to assure them that they would at
least get fans to provide adequate summer ventilation. As for their complaint about
winter heat, he assured them that that grievance would be corrected, and the em-
ployees were definitely promised that thereafter they would not be required to work
on days when there was inadequate heat. He further assured them that they would
have their holidays and that sick pay would be satisfactorily worked out. On the
subject of wage increases , Meyers promised the employees that their pay would be
brought up to the standard of the union-represented employees. He made no defi-
nite commitment as to the amount of the wage increase-that was done at a subse-
quent meeting-but requested an expression from the employees on how much they
wanted. During the course of the discussion, the management officials did not in ex-
press words condition the granting of the promised benefits upon the employees'
dropping out of the Union. Meyers simply declared that the choice was theirs
whether to deal with management through an outside agency or to drop out of the
Union and themselves deal with management directly. Upon conclusion of the
discussion, Meyers stated that the management representatives would leave the room
so that the employees might meet among themselves to decide whether under the
circumstances they desired direct dealing or the intervention of an outside agency.
The office employees then conducted their own meeting. As a result of their meeting
they announced to management that they would withhold decision until after the
salesmen 's meeting scheduled for later that day.
That same day the Respondent received from the Union a registered letter assert-
ing majority status in a unit of office employees and salesmen, and demanding
recognition and bargaining. The record does not disclose the precise time the Union's
bargaining demand was received. Meyers testified that he first learned of it from
Branch Manager Treon sometime after the first meeting with the office employees
was concluded but before the holding of the afternoon meeting. Also after the first
meeting but before the second meeting Meyers received a telephone call from a
Board field examiner advising him of the filing by the Union of a representation
petition.
The meeting with the salesmen was held at 5:30 p. m. on February 28. That
meeting was also attended by the office employees. In addition to Meyers, Garrett,
and Pruitt, there were present for management Branch Manager Treon and Carl
Rhyne, the Respondent's district manager for its southeastern district. The record
contains little detail as to what was said at this meeting. It merely discloses that
Meyers voiced his regrets that matters had gone as far as they had and again ex-
pressed the Company's preference to deal with the employees on an individual basis
rather than through an outside agency. As at the earlier meeting, Meyers asked
the employees to meet among themselves, without management representatives pres-
ent, to decide which of the two courses they wanted to pursue, and to let manage-
10 Only a few employees were required to report for work on Saturday.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment know. After holding their own meeting, the employees advised the company
officials that they had decided to adhere to the Union.
That night, after the meeting, Pruitt telephoned employee Laura J. Moss at her
home . He told her that a union was not the answer to the problems of the office
employees ; that the office employees constituted a small group that could better deal
with the Company directly; that he was confident a satisfactory agreement could be
reached by such direct dealing; and that he could reassure Moss that the employees
would get everything Meyers had promised. He said in substance that he could see
no reason why the employees should desire a union as they could gain everything
they wanted without one. Moss informed Pruitt that the employees had "gone too
far now to back out." When Pruitt asked, "Why?", Moss replied the employees
would be afraid of their jobs; that they felt "if we didn't go along with [the Union],
in six-month's time everyone of us would be fired." Pruitt then said he would assure
the employees that none of them would be fired for their union activities. Pruitt
then put Garrett on the phone and he told her the same thing. The next morning
there was placed on the desks of the office employees a letter signed by Garrett and
Rhyne reading as follows:
Any statement to the effect that any employee will lose their job if they do
or do not join a union is a false statement.
The Labor Management Relations Act and the Georgia Right to Work Laws
protect your right to work.
The only job requirement with Wilson & Co. is to perform your job
satisfactorily.
If any employee has any question on this subject , do not hesitate to contact
the undersigned.
An identical letter , except for the substitution of Treon 's signature for Garrett's, was
later sent by mail to the salesmen and received by them on March 2. Garrett testi-
fied that the letter was prepared and distributed to offset the fear Moss had expressed.
in their conversation of losing her job because she had engaged in union activities.
On March 1, Pruitt and Garrett held a further meeting with the office employees,
lasting several hours. Garrett told the employees that he did not think they would
be happy wtih a union. He reiterated the promises made to them the day before
by Meyers with regard to the correction of their grievances. He went one step
further at this meeting by definitely promising them a wage increase of about $4.50
a week effective that week.
In their paychecks at the end of that week the office employees received an increase
of $4.50. The record does not disclose whether or not a similar increase was granted
the salesmen.
On March 29, 1955, the Company and the Union entered into a consent-election
agreement in the representation proceeding . The agreement provided for separate
elections in 2 units, 1 composed of outside salesmen, the other of office employees.
The election was held on April 15. The Union won the election in the office em-
ployees unit . It was defeated in the election held among the salesmen.
B. Conclusions as to independent interference , restraint, and coercion
Independently of the discharge of Danese, the complaint alleges that the Respond-
ent unlawfully invaded employee Section 7 rights by'threats of reprisal made through
Hudson and by promises of benefit made through Meyers, Garrett, and Pruitt.
The allegation regarding threats _of reprisal is found supported by (1) Hudson's
warning to Danese on February 23, 1955, that "somebody was going to get in trouble"
for trying to form a union; (2) his statement to Hicks on February 24, 1955, that
someone was going to get "hung" the following day to "scare" other employees out
of -the Union; and (3) his assertion to Wood on February 26, 1955, implying that
Danese had been discharged for union activities. As Hudson admittedly was a
supervisory employee his coercive statements are imputable to the Respondent even
though Hudson himself had no direct supervisory authority over the particular em-
ployees to whom such statements were addressed. The Respondent's contrary con-
tention is rejected . Moreover , it is not controlling on the 8 (a) (1) aspect of this
case that the record does not show that Hudson officially knew that the Respondent
was contemplating reprisal action when he made his statements to Danese and
Hicks, or that he knew the actual reason for Danese's discharge when he made the
statement to Wood. The question of 8 (a) (1) liability turns not on the truth or
falsity of the statements, but upon their coercive impact upon employees. The
Respondent argues additionally that in any event its letters of March 1 to the office
employees and salesmen must be viewed as counteracting and neutralizing the co-
ercive effect of Hudson 's statements . If there were nothing else in this case but the
WILSON & COMPANY, INC. 335
evidence of Hudson 's coercive remarks I would be inclined to agree . But, as found
below, the Respondent engaged in other unfair labor practices , continuing after the
letters were receivedby^-the>office.,employees. Moreover, Danese's discharge with
which Hudson's remarks must have been closely enmeshed in the sight of the em-
ployees, and which is found discriminatory below, remained unremedied. As the
discharge thus continued to provide a concrete example of positive reprisal action at
variance with the Respondent's protestations, the coercive effect of Hudson's state-
ments cannot reasonably be said to have been eradicated. Under all the circum-
stances, I reject the Respondent 's neutralization argument as well as its other defenses
-to the 8 (a) (1) conduct already found.
The other 8 (a) (1) allegation of the complaint is found supported by the facts
set out above relating to the promises of improved working conditions, benefits, and
pay raises made to the office employees by Meyers at the meeting on February 28,
to Moss by Pruitt in her telephone conversation with him that evening, and again
to the office employees by Garrett and Pruitt at the further meeting on March 1,
as well as by the actual pay raise granted the office employees later that week. The
Respondent argues that no illegality may be found in such conduct because its
representatives did not expressly condition the granting of such benefits upon the
employees' withdrawal from the Union. That argument is rejected as lacking in
merit. In light of the timing of the promises, the statements accompanying them,
and other surrounding circumstances, there can be no doubt, and it is found, that
the promises were made and the wage increase was granted the employees for the
purpose of causing the employees to forego union organization. The law must by
now be regarded as well settled that allurements to employees directly designed for
that specific purpose constitute illegal interference, no less than coercion, and this
even though the promises made or benefits conferred are not in express terms condi-
tioned upon employee renunciation of union organization. See Hudson Hosiery
Company, 72 NLRB 1434, at 1436 and cases there cited; Queen City Valves, Inc.,
93 NLRB 1576; F. W. Woolworth Co. v. N. L. R. B., 121 F. 2d 658, 660 (C. A. 2);
N. L. R. B. v. Jones Foundry & Machine Co., 123 F. 2d 552 (C. A. 7); Joy Silk
Mills, Inc. v. N. L. R. B., 185X. 2d 732 (C. A., D. C.) enfg. as mod. 85 NLRB 1263.
An additional and rather unique defense, presented by the Respondent to justify
its conduct at its meetings with employees, remains to be considered. Meyers testi-
fied as follows: When he was advised the salesmen and office employees were being
organized he "took it for granted" that the active union must be the United Packing-
house Workers, the union that represented other employees in the plant. Accord-
ingly, upon arriving at Atlanta, he contacted Edmund Dumas, the district director of
that union, who told him that he believed his union had sometime in the past dis-
tributed cards to the same employees in question , but that he was uncertain of the
present status of such organizational efforts. Dumas, according to Meyers, stated
he would check and let Meyers know, and that in the meantime it would be agree-
able to him to have management meet directly with the employees and hear their
grievances. Meyers, accordingly-so his testimony would have it-set up the meet-
ings with the employees and made the promises he did in the good-faith belief that
he had union permission to do so.
On the basis of Meyers' testimony the Respondent appears to argue that the
Respondent 's conduct in meeting with the employees , hearing their grievances, and
promising them benefits in satisfaction of their grievances should not in the circum-
stances be ruled a violation of law. I do not agree. It is unnecessary here to
decide whether a union engaged in organizational activities may waive the em-
ployees' statutory right to be free from employer interference calculated to induce
them to forego unionization. The fact is that the Packinghouse Workers was not
the interested union, and that the Union in this case, which was, waived nothing.
It is doubtful on Meyers' own testimony whether he had any reasonable basis to
assume that the Packinghouse Workers was in a position to authorize the conduct in
which the Respondent engaged, but if he did so assume, though he may have acted
in good faith , he took the risk of being wrong, and since he was wrong the Respondent
may not now raise authorization as a defense , even if otherwise it could . Moreover,
it is to be observed that the Respondent concedes it learned of the Union's identity
and of its representation claim sometime during the day of February 25. Neverthe-
less, as the record shows, the Respondent thereafter again met with the office em-
ployees, repeated the promises it had earlier made , and announced and granted them
a definite wage increase.
It is concluded and found that , by threats of reprisal , promises of benefit , and the
wage increase referred to above , the Respondent interfered with , restrained, and
coerced its employees in the exercise of rights guaranteed them under Section 7 of
the Act.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The discriminatory discharge of Frederick Danese
As found above, Danese was summarily discharged without prior warning on
February 25, 1955, at the crest of the Union's organizational campaign in which
he had taken a particularly active role. Less than 2 months before his discharge,
Danese had revealed himself as a leader among the salesmen in their concerted ac-
tivities by acting as their spokesman in a demand for a wage increase, and for this
he had been reprimanded by the branch manager. Two days before his discharge
Danese had been cautioned by Hudson, a supervisory employee, about the risks of
trying to form a union among the office and sales employees. The day before the
discharge, Hudson had predicted to another employee that on the following day
someone was going to get "hung" to scare the rest of the employees out of the Union.
On the first regular workday after the discharge, the Respondent arranged meetings
with its office and sales employees in which it clearly revealed its opposition to union
organization of such employees.
Prior to his discharge, Danese had been in the Respondent's employ as an outside
salesman for over 2 years. During that period there were occasions when Danese's
work was criticized, but that was true also of other salesmen who were retained by the
Respondent. According to Danese's credited testimony, his work was never specifi-
cally criticized during the last 2 months preceding his discharge. At no time prior
to his actual discharge did the Respondent give Danese any indication that it was
considering releasing him because of unsatisfactory work or otherwise. On the
contrary, less than a month before, Branch Manager Treon revealed an anxiety
to retain Danese's services. On January 14, 1955, Danese entered a hospital for a
major operation. He was discharged from the hospital on January 24, but was
instructed by his physician not to return immediately to work. However, on January
26, Treon urged Danese to return promptly, stating that he was sorely,needed.
In order to induce Danese to do so, Treon made a special arrangement with Danese
under which Danese was to be allowed to remain at the office and contact customers
by phone instead of calling on the trade directly. Danese returned under that ar-
rangement on January 26. There is some inconsistency in Danese's testimony as to
how long he remained under it before resuming his regular duties. Danese when
first called as witness testified that as nearly as he could remember he "stayed in the
office approximately a week or 10 days." However, when called as a rebuttal wit-
ness-after this precise point became more important for reasons that will herein-
after appear-Danese testified that although he might have made several personal
calls the previous week, he was not actually released by his doctor and did not resume
making personal calls on a regular basis until February 14. Treon testified that
Danese worked on the phone for approximately 10 days. Office Manager Pruitt's
recollection was that it was approximately 2 weeks.
As found above, Branch Manager Treon informed Danese when he discharged him
that he was taking that action because District Auditor Garrett had reported to the
Respondent's central office at Chicago that Danese was spending too much time away
from his territory drinking coffee at the D & B Restaurant and that Chicago, on the
basis of that report, had instructed him to dismiss Danese. Treon testified that he
fired Danese solely because of that order from Chicago that was transmitted to him
through District Manager Carl Rhyne. It appears from Treon's testimony that the
instructions given him to fire Danese represented a departure from normal practice.
Normally the Respondent left the decision of whether or not to hire or fire branch
salesmen entirely to the judgment of Treon. The only other instances Treon could
recall where Chicago had intervened in a matter of that kind involved employees
who had furnished unacceptable references or bond applications that had been
checked by Chicago. In the past whenever Treon had discharged salesmen for
unsatisfactory work performance or inattention to duties he had acted on his own
without orders from above. Only a week before Danese's discharge Treon had
occasion to discharge another salesman , Wiggins, because Wiggins was spending too
much time helping his wife in a restaurant she owned and not attending to his duties.
The decision in Wiggins' case was made by Treon and not directed by Chicago. It
further appears from Treon's testimony that the discharge of Danese was unusual
in another respect. In all 12 years of his experience as a branch manager, Treon
could not recall another instance where the district auditor had reported on a sales-
man's activities, except in relation to cash remittances or c. o. d.'s, nor any instance
where the district auditor had recommended the discharge of a salesman at the
branch 11
"Garrett, however, testified that he could recall two other specific instances involving
salesmen at other branches where he had-reported to the district manager that the sales-
men were not working their territory properly.
WILSON & COMPANY, INC. 337
Treon's testimony , first given as an adverse witness called by the General Counsel,
that the order to discharge Danese emanated from Chicago as a result of a report
transmitted by Garrett to the Respondent 's main office , was not consistent with testi-
mony the Respondent developed through later witnesses . Though Treon testified
unequivocally enough that he was told by both Rhyne and Garrett that Garrett had
made a report on Danese to Chicago and that Rhyne had a copy of it , the Respondent
did not produce any such report . Both Rhyne and Garrett testified that in point of
fact no such written report had been made or sent to Chicago . According to Rhyne
and Garrett , the only report was an oral one made by Garrett to Rhyne. As district
auditor, Garrett is not responsible to the district manager , but is required to report all
his findings on a branch audit to his superiors in Chicago, sending copies of his re-
ports to the district manager . Garrett testified he made no report to Chicago on the
Danese matter because at that time the general audit he was making of the Atlanta
branch had not yet been completed , but explained that he nevertheless called the
matter to the attention of Rhyne because he considered his finding to involve an
irregularity requiring immediate attention . Garrett conceded that when eventually
he did submit his formal report of his Atlanta audit to Chicago he included in it no
mention of the special checkup he says he made of Danese. Garrett explained the
ommission as due to the earlier rectification of the irregularity by Danese 's discharge.
There is evidence , however , that in the past Garrett had included in his final audit
report findings of irregularities he had discovered even though they had been cor-
rected by action taken before submission of his report . Rhyne, contrary to Treon's
assertion , denied that the order to dismiss Danese had originated from Chicago. He
testified that he alone was responsible for the final discharge instruction. Rhyne
stated , however , that he "might" have told Treon that the order to discharge Danese
had come from Chicago . He explained , "a lot of times I use that as an out." He
did not explain why he should have considered it necessary to seek such an "out"
in the case of Danese . As to whether he had actually communicated with Chicago
about Danese prior to Danese's actual discharge , Rhyne's testimony was equivocal.
He testified he thought he did speak to Chicago about Danese sometime earlier in the
week of Danese's discharge , but stated that it was after he had already communicated
his instructions to Treon , though prior to Danese 's actual discharge on Friday. He
testified at one point that he told Chicago to "let Danese go"; at another that he
"just casually mentioned" Danese's discharge in the course of an unrelated telephone
conversation with one Christopher, "a young fellow that follows details in Chicago."
But he admitted that he did not normally communicate with Chicago when a branch
employee was to be dismissed , and also conceded that Chicago would not know who
Danese was. He was vague as to why he thought it necessary to mention Danese to
Christopher . When pressed on the point , he testified that Christopher was the em-
ployee at Chicago who usually approved drop notices. But then he admitted that
such notices were prepared after rather than before an employee was actually dis-
charged , and that it was not necessary for Christopher to approve anything in ad-
vance of Danese's actual discharge.
In defending its discharge of Danese as one unrelated to his union or concerted
activities , the Respondent relied on grounds much broader than that stated to
Danese at the time of his discharge . The Respondent contended that it had actually
decided as long as 6 months before the actual discharge to replace Danese for his
infraction of company rules and for general incompetence , and that the Garrett
report was only one among a number of reasons for the action finally taken.
To support its broad defense, the Respondent introduced evidence to show that in
the summer of 1954 , Danese applied for a transfer to a Florida branch office of
the Respondent ; that at that time Rhyne inquired of Danese 's immediate supervisors
as to their opinion of his worth ; and that they expressed the view that he was not
worth the expense of transferring , causing Rhyne to inquire why, then , they kept
him. Danese was denied a transfer at that time, but nothing else was done. In
mid-December 1954, Danese again requested a transfer ; the request was referred
to Rhyne and much the same thing occurred . Rhyne testified that when Danese's
second transfer application came up he spoke to Treon, told him he had enough
of Danese , and wanted him replaced immediately . According to Rhyne, he also
told Treon at that time that since Treon had been unable to find a replacement for
Danese, the district office would itself run an advertisement and have its produce
inspector, Dazett , interview applicants . On January 10, 1955, the Respondent ran
an ad in a local newspaper , which , the Respondent 's witnesses would have it, was
390609-56-vol. 115-23
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inserted for the express purpose of finding a replacement for Danese.'2 Rhyne
and Treon testified that the advertisement failed to produce a satisfactory replace-
ment for Danese. Consequently, according to the Respondent's witnesses, the Re-
spondent ran another newspaper advertisement on February 18, the Friday before
Danese was discharged.13 It was Treon's testimony that the purpose of that adver-
tisement was to secure replacements for two salesmen, Wiggins and Danese. The
record shows that as a result of that advertisement, Treon hired a salesman, Cun-
ningham, on the day the advertisement was first run.' Though the advertisement
was originally ordered for 2 days, the order for the second day was cancelled when
Cunningham was hired. On Thursday of the following week, Treon hired another
salesman , Childs, who had worked for the Respondent for a period of several months
some 3 years before.14 Under the theory of the Respondent's broad defense, the
Respondent did not replace Danese until February 25, although its decision to re-
place him had been made months before, only because it had been unable until then
to find a salesman to put in his place.
Further to support its broad defense the Respondent searched Danese's entire em-
ployment history for instances in which it had previously found him derelict in his
duties, occasioning reprimand. Treon, while testifying, collated such instances as
falling into three groups: (1) "trouble with Mr. Danese making COD deliveries and
not turning in the money promptly;" (2) "making complaints in sales meetings in
front of other salesmen which would naturally have a tendency to cause them to
figure there was something wrong," and (3) "numerous times for price shades."
As to the asserted "trouble" with Danese over c. o. d. deliveries, Treon could
recall but one instance when he had had occasion to reprimand Danese on that ac-
count. That occurred 8 months or more before Danese's discharge. It involved
a failure on the part of Danese to make a remittance, as he was supposed to, on the
same day as the delivery of a c. o. d. invoiced order he had personally delivered.
No question of dishonesty was involved. So far as the record discloses, Treon had
no further trouble with Danese on that score.15
As to Danese's "complaints in sales meetings," Treon did not amplify his broad
assertion. So far as the record otherwise discloses, the only time Danese was
reprimanded for his conduct at a sales meeting was in January when Danese acted as
spokesman for his fellow employees in connection with their wage grievance.
As to "price shades," the record shows that the Respondent permitted its sales-
men at least on occasion to shade prices-that is to sell somewhat below the fixed
price-in order to meet competition on quantity lots. The salesmen were expected
to make up losses on shadings by obtaining "overages" on other sales. It appears
that on perhaps 50 occasions during Danese's entire period of employment, Treon
sent Danese notes pointing to the fact that he had made shadings on certain ac-.
counts and demanding an explanation. But it further appears that it was Treon's
usual practice to do that with regard to all salesmen where sales were made below
the established price. Treon,did not claim that Danese was more deficient than others
in obtaining "overages" to offset price shadings.16 According to Treon, he also had
occasion on a number of instances to reprimand Danese about making unauthorized
price shades. Danese denied that this had occurred except on a few occasions, each
of the reprimands, according to him, having been unjustified. The most flagrant
example to which Treon specifically pointed occurred perhaps a year before Danese's
19 For reasons that will hereinafter more fully appear, the form of the advertisement is
important It read, "Experienced and student salesman Some knowledge of meat, dairy
and poultry products useful, but not essential," and asked for applicants to call at the
district office.
"That ad read in pertinent part, "Need `a young man with full lime sales experience,
preferable wholesale,'to train for wholesale meat sales," and requested applications to be
made in person to Treon at the branch office.
14 Though Treon's testimony on direct examination varied at different points as to the
date Childs was hired, Treon on cross-examination finally fixed the actual date as Thursday,
February 24, the day before Danese was discharged. Treon testified that when he hired
Childs he told him "that I was going to have to discharge a salesman the following day
and wanted to put him on that territory."
18 Though Daiiese testified he could not recall that specific reprimand , Treon's testimony
concerning it is accepted.
19 According to Danese, whose testimony in this respect .Is uncontradicted, Assistant
Branch Manager Gearhart, about 2 weeks before Danese's discharge, took occasion to com-
pliment Danese personally for obtaining overages exceeding his price shades during the
most recent accounting period.
WILSON & COMPANY, INC. 339
discharge and involved a shading totalling $ 3 which Danese had allowed a customer,
the Respondent had refused to approve, and the customer had refused to make good.
The Respondent also placed much stress on another incident for which Danese
had been reprimanded by former Assistant Manager Vaughan . It related to an
occasion one afternoon when Danese without permission had accepted a telephone
order from a customer for 3 or 4 cases of lard at a reduced price that was not to go
into effect until the following morning. That incident, according to Vaughan,
occurred perhaps a year before Danese's discharge.
The question we face here is not whether there existed reasons for which the
Respondent might have fired Danese , but what in fact the reasons were that motivated
the Respondent to discharge Danese at the time it did . - On all . the evidence, I find
incredible the Respondent 's broad contention that it replaced Danese on February 25,
1955 , to carry out a decision it had made months before . That contention not only
goes far beyond what Danese was told at the time of his discharge ; it is also ruled out
by the explicit testimony of the management official who effected the action taken.
When directly asked at the hearing to state his reason for discharging Danese, Treon
gave only one reason-the receipt by him of instructions "to get rid of [Danese] as
quick as possible due to the fact that he simply had not been working." By "not
working," Treon explained , it was meant that Danese had been spending too much
time at the D & B Restaurant . The afterthought character of the Respondent 's broad
defense is further reflected by Treon's admission while testifying that prior to Danese's
discharge he made no reports to higher management about Danese engaging in rules
infractions , and, more specifically , none about Danese's conduct with regard to shad-
ing-the conduct upon which the Respondent now appears mainly to rely to support
its position that Danese was deserving of the asserted earlier decision to replace him.
Moreover, the Respondent's delay until February 25, 1955, in carrying out the
replacement decision it says it made some 6 months before provides compelling evi-
dence to refute the Respondent's assertion that such an earlier decision was in fact
made-unless, of course, the Respondent's claim is believed that the delay was due
to its inability sooner to find a replacement. But the Respondent's explanation for
the delay is found clearly unworthy of belief. Record facts, supported mainly by
testimony drawn from the Respondent's own witnesses on cross-examination, belie
the Respondent's assertion that it did not replace Danese sooner only because it
had no one to replace him with. Thus, it appears that the Respondent pursued a
policy of constantly having employed at the plant a trainee-salesman prepared to take
over the work of a regular salesman if necessary. In the fall and winter of 1954-
after the decision to replace Danese was allegedly made-the Respondent had em-
ployed in that capacity a man named Cash. Fprmer Branch Manager Vaughan, a
witness for the Respondent, testified on cross-examination that the Respondent could
have put Cash in Danese's place. In January or early February 1955, a regular sales-
man, Dennard , quit the Respondent 's employ. Cash was then given Dennard 's route
on a regular basis. At about the same time, the Respondent hired another trainee-
salesman, Ables, to fill Cash's vacancy. When Wiggins was discharged during the
week ending February 18, Ables was put in Wiggins' place. On February 18, as a
result of the advertisement inserted in the newspaper that day, the Respondent hired
another trainee-salesman , Cunningham , to fill the place made by Ables' promotion.
As has been noted, Childs was hired on February 24 in anticipation of -Danese's
release the following day.
As for the newspaper advertisements of January 10 and February 18, which the
Respondent asserts were designed to find a replacement for Danese , evidence de-
veloped by the General Counsel clearly demonstrates the falsity of the assertion so
made. Thus, it appears that shortly before the January 10 advertisement was inserted,
an employee , Zakas, the branch's produce man who handled and sold poultry and
dairy products , left the Respondent 's employ. Under the Respondent 's organizational
setup , the branch 's produce man was responsible to the district produce inspector,
Dazett, whose offices were at the district headquarters. When Zakas left the Respond-
ent could not at once find a qualified replacement for him . In such circumstances
it was often necessary for the Respondent to seek a man whom it could train to fill
the position. The facts just stated , considered in conjunction with the form of the
January 10 advertisement and the requirement therein for applicants to be interviewed
by Dazett at the district office rather than by Treon, who normally interviewed appli-
cants for salesmen 's jobs such as Danese 's, leave, for me, no doubt of the validity of
the General Counsel 's position that the advertisement in question was designed to
obtain a replacement for Zakas rather than one for Danese. The advertisement of
February 18 , I think it clear from the facts already stated , was designed not to obtain
a replacement for Danese but one for Ables who had just been promoted to Wiggins'
position leaving a vacancy for a trainee-salesman . As to that advertisement, I think
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it also significant that, although originally ordered for 2 days, the advertisement was
canceled at the end of the first day with the hiring of Cunningham. Surely that
would not have been done if at that time-a week before Danese was discharged-
the Respondent was then actually engaged in an effort to find a- replacement for
Danese, as it would now have it believed.
Having rejected the Respondent's broad contention as not credible, we turn now to
consider whether the reason stated to Danese at the time of his release in truth moti-
vated the Respondent's decision to discharge him.
According to the account given by the Respondent's witnesses, the sequence of
events leading to the instructions to Treon to dismiss Danese for spending too much
time at the D & B Restaurant and not working his territory was as follows: During
the months of January and February, Garrett was engaged in making a general audit
of the operations of the Atlanta branch office. It was Garrett's custom while at the
branch to take a midafternoon coffee break each day at the D & B Restaurant. That
restaurant, located about a block from the branch office, was the one most usually
frequented by branch office employees not only at lunch but during the coffee breaks
branch employees were allowed twice a day, once about midmorning and again about
midafternoon. At about 3 p. m. on February 4, 1955-3 weeks before Danese's dis-
charge-Garrett went to the D & B Restaurant for coffee, accompanied by Charles
Pond, the branch's credit manager, and Gordon Pruitt, its office manager. While
there, they noticed Danese at the restaurant. This-according to Garrett, Pond, and
Pruitt-led Garrett to inquire of his companions what Danese was doing there at
the time. In response-according to their further testimony--either Pond or Pruitt
replied that "of late" it seemed to be a common occurrence for Danese to be in the
restaurant in the afternoon. The response, they testified, prompted Garrett' to an-
nounce then and there that he would make a check on Danese the following week to
determine whether Danese was spending excessive time at the restaurant. Such a
check, their testimony continued, was actually made by Garrett, aided by Pond and
Pruitt, during the following week-on Monday through Thursday, February 7 through
10, according to Garrett. All three testified that during the week beginning February
7 whenever they went to the D & B Restaurant they found Danese there.
Nothing was said to Danese at the time. Nor was the matter then called to the
attention of the branch manager or assistant branch manager who were Danese's
immediate supervisors and whose responsibility it was to see that he performed his
work. However, according to Garrett and Rhyne, on Monday, February 21-11
days after Garrett testified he completed his special check on Danese-Garrett
reported to District Manager Rhyne what his check had revealed. As has already
been noted, Garrett's responsibility was not to the district office, nor to Rhyne who
was not in his chain of command, but to Chicago. Garrett was required to make
his audit findings to Chicago; to the division head he was only required to submit
copies of the reports he had sent to Chicago. Nevertheless, Garrett testified,
whenever in the course of an audit he discovered an irregularity necessitating imme-
diate attention he would notify the division head in advance of his written report.
Garrett testified that he considered the Danese situation such an irregularity.
Garrett explained his 11-day delay in reporting to Rhyne as due to his inability to
,reach Rhyne the preceding week because of Rhyne's absence from the city. When,
according to both Garrett and Rhyne, Garrett told Rhyne of his check on Danese,
Rhyne asked Garrett whether he was "sure" of what he said he had observed, and
when Garrett said that he was, Rhyne told Garrett to have Treon phone him
because the Respondent and Danese were going to part company.17 Garrett testified
that in conformity with Rhyne's request he spoke to Treon that same day and told
him to call Rhyne, and then for the first time informed Treon of his check of
Danese. In contradiction to Treon's testimony, however, Garrett denied stating to
Treon that he had sent a report about Danese to Chicago.18 Later that day, accord-
19 Rhyne on direct examination indicated that Garrett's report did not come as a com-
plete surprise to him He testified, "If I remember correctly, I heard once before and com-
plained to Treon about [Danese hanging around the D & B Restaurant]." Rhyne's testi-
mony in this respect, as in others, was, however, contradictory When asked to state on
cross-examination where he had heard it before, Rhyne became evasive, stated that he
might have been mistaken, and finally denied flatly saying on direct examination that he
had complained to Treon before about Danese staying in the restaurant.
zs There is another variance between the testimony of Garrett and Treon. Garrett testi-
fied he told Treon he had checked Danese during the week beginning February 7 ; Tredn
as an adverse witness testified that Garrett told him he bad seen Danese at the D & B
Restaurant for a few days in a row during the week beginning February 14,
WILSON & COMPANY, INC. 341
ing to the Respondent 's witnesses , Treon spoke to Rhyne who instructed him to
discharge Danese.19
Danese denied that he spent more time at the D & B Restaurant than other
salesmen or plant employees . That restaurant was adjacent to, if not within, the
territory served by Danese. Danese testified that like others he would at times eat
lunch at the D & B Restaurant,20 sometimes go there in the morning , and occasionally
go there in midafternoon about 3 or 3:15 p . in., the time when outside salesmen
normally checked in at the plant, having completed their day's work as -far as
personal contacts are concerned . Danese did not deny that he might have been seen
at the D & B Restaurant on the days when Garrett testified he made his check.
Testifying as a rebuttal witness, Danese stated that during the week the check was
supposed to have been made he had not yet been released by his doctor , and was
still working in the office pursuant to the limited duty arrangement he had made
with Treon following his release from the hospital . He further stated that if he had
testified earlier-as the record shows he did-that the span of that arrangement was
a week or 10 days, rather than 2 weeks as he now insisted , he had previously been
inaccurate.
Other evidence in the record suggests a greater likelihood that Danese may have
been more accurate in his later recollection as to the length of the period he was
on limited duty. The period stated by him on rebuttal coincided with the testimony
of at least one witness for the Respondent , Pruitt, who agreed on cross-examination
that Danese was on limited duty for about 2 weeks . More important , however, it
might explain another detail . The witnesses who testified that they saw Danese at
the D & B Restaurant up through February 10, admitted that they continued going
to the restaurant practically daily thereafter . Yet, their testimony makes no
mention of seeing Danese during the last 2 weeks of his employment ; if they had
seen him then I think they would have brought it out; and since they did not it is
not unreasonable to assume that after the week beginning February 7 they no longer
saw him there, at least not regularly. If Danese was on limited duty for 2 weeks
after returning from his illness , it would have carried that period of duty substantially
through the week beginning February 7, and that would account for the seemingly
abrupt change in his habits after that week , for which there is now no other
explanation in the record . At any rate, I do not think this case turns on a resolution
of that conflict. For I am persuaded in any event that credence cannot be given
to the Respondent 's defense now under consideration-and this for the reasons I
shall now indicate.
The testimony the Respondent adduced to support its claim that Garrett , as part
of the branch audit he was conducting , made a check on Danese to determine
whether he was properly attending to his duties contains much in it that is inherently
implausible . Garrett conceded that as part of his audit he made no similar check
on any other salesman or person in the branch 's employ. His explanation that he
singled out Danese for such a check only because he happened to observe Danese at
the D & B Restaurant on Friday , February 4, is not convincing . His own testimony
as well as that of other witnesses discloses that it was not unusual for salesmen to
be at the D & B Restaurant at that time of day ; indeed , Garrett admitted that on
other occasions while taking his own coffee break he had seen salesmen there without
taking special note of it . Nor do I find persuasive the further explanation offered
that he was given special grounds to suspect Danese when , in response to his inquiry,
Pond or Pruitt informed him that "of late" they had seen Danese about the restaurant
quite a bit. For one thing , as Garrett 's own testimony shows, he never made a
similar inquiry about other salesmen he observed at the restaurant during the course
of his audit . Moreover, if "of late" Danese had been seen about the D & B
Restaurant more than usual , the evident reason for this was that Danese had been
"of late" on limited duty, as at least Pond and Pruitt well knew and as is reasonably
to be expected they would have communicated to Garrett in response to his inquiry
if Garrett was not already aware of it.
Further, the testimony of the Respondent 's witnesses concerning the check they
say they made of Danese left much to be desired . It is not unreasonable to suppose
that an auditor making such a check in conjunction with an audit report would nor-
mally make a record of what he observed . Yet by his own account , Garrett made
no notes, nor did the others who are supposed to have assisted him. The testimony
of the 3 Respondent 's witnesses who say they made the check was generally vague
and indefinite as to the times they claim to have observed Danese at the D & B
11 The contradictions between Treon's testimony and that of other Respondent's wit-
nesses as to the source of the orders given Danese have been pointed out above`
a' Salesmen at the branch have no fixed time for their lunch periods.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Restaurant ; in certain respects their testimony was evasive-in particular that was
true of Pond whose testimony on cross-examination revealed him to be wholly
unworthy of belief-and in certain material respects, such as with regard to the
times they went together or alone, there were substantial variances among the
accounts given by the 3. So far as their testimony clearly shows, during the period
of the asserted check they went to the D & B Restaurant in midafternoon , but that
was no more than their usual custom. Though Pruitt and Garrett testified that on
one or more days they also went to the D & B Restaurant at different times, their
testimony in that respect was especially vague and they could not specify when
that occurred. Significantly, too, though the check, according to the Respondent,
was designed to determine whether Danese was properly working his territory, the
asserted investigation, so far as the record discloses , did not extend beyond their
observation of Danese at the restaurant. The Respondent introduced no evidence to
show that Danese's , orders at that time were down from where they should have
been.
The delay in transmitting the information to Treon is another significant fact
tending in my view to impair the credibility of the Respondent's claim that Garrett
made and completed as part of his regular audit a formal check on Danese. Gar-
rett's explanation , that he did not report the matter to Treon because he was not
required to, does not square with his assertion that he immediately attempted to
report the matter to Rhyne to whom he was also under no duty to report audit
findings in advance of submission of his formal report to Chicago. If, as Garrett
says, he felt it necessary to report his findings orally to Rhyne because he con-
sidered the matter an emergency one requiring immediate attention, it seems to me
that the least he would have done in the absence of Rhyne was to report the matter
to Treon at whose branch he was then working.
I do not doubt that Garrett, Pond, and Pruitt, and perhaps all three, did see Danese
at the D & B Restaurant over a series of days prior to about February 10 on oc-•
casions when they themselves made their ordinary visits to that restaurant. But
I do not believe that their notice of him then was more than a casual one. On
the basis of all the record evidence, and from my observation of the witnesses giv-
ing it , I do not credit the testimony of the Respondent's -witnesses that Garrett, as
part of the audit he was then making, singled out Danese for a specific check to
determine whether Danese was spending an excessive amount of time away from
his territory. Because I am convinced that no such special check was in fact made,
and because of other discrepancies, contradictions, and implausibilities in the testi-
mony of the Respondent's witnesses that have already been adverted to, I likewise
do not credit the Respondent's contention that Garrett's orally reported findings of
that audit check constituted the activating reason for the discharge action. Rather,
I am convinced that the Respondent, having decided to discharge Danese for other
reasons that it did not care to announce, sought about for a pretext and-suggested,
perhaps, by its discharge the week before of another salesman, Wiggins, for spend-
ing duty time helping his wife in the cafeteria she owned-seized upon Danese's
attendance at the D & B Restaurant as one that might be given the appearance of
validity, and contrived Garrett's asserted audit findings as a ready means of ex-
plaining the earlier failure of the branch management to reprimand or take action
against Danese for conduct which, as the record shows, it had in the past been
aware of but had condoned. My conviction in that regard is only fortified by the
Respondent's added reliance at the hearing on its somewhat inconsistent broad de-
fense, clearly in the nature of an afterthought and demonstrably false, as found
above.
The specific reasons assigned by the Respondent for Danese's discharge having
been rejected as not credible, the key to the Respondent's true motivation- unless
that motivation is to be left unexplained altogether-must be sought elsewhere. It
is to be found, I am persuaded, in the then current union organizational activities,
to which the record clearly shows the Respondent was opposed, and in which Danese
was then playing a leadership role, as I am convinced, and find, the Respondent was
then aware of or at least suspected 21 Bearing in mind (1) the Respondent's op-
n I am aware, of course, that there is no direct evidence to show that Treon , or other
management officials who may have ordered Danese's discharge, had knowledge of Danese's
participation in the union organizational activities. But though the absence of such
direct evidence has given me some pause, I do not think it fatal to the finding made in
the light of what I consider strong circumstantial evidence to support a reasonable infer-
ence that such management officials must have been aware of, or at least suspected,
Danese's active participation. The principle that knowledge of union activities, no less
than discriminatory motive. may, and often of necessity must be, based upon reasonable
inference drawn from circumstantial evidence, is one firmly established by judicial prec-
WILSON & COMPANY,- INC. 343
position to union organization among its office employees and salesmen as reflected
in the meetings arranged for the first workday following Danese 's discharge; (2)
the timing of the discharge in relation to the state of union organization ; ( 3) the
outstanding part played by Danese in the organization of salesmen ; (4) Hudson's
warning to Danese 2 days before his discharge ; ( 5) the prediction made by Hudson
to Hicks the day before ; and (6 ) the unconvincing and, in part , inconsistent reasons
advanced by the Respondent in an effort to explain the discharge on a lawful basis,
I am of the opinion that Danese 's discharge can only be reasonably explained on
the basis that it was motivated , as Hudson had predicted , by a desire to make an
example of him in order to discourage others from union organization.
Accordingly , I conclude and find that , by discharging Danese on February 25,
1955 , and by thereafter failing to reinstate him, the Respondent discriminated with
regard to his hire and tenure of employment , thereby discouraging membership in
the Union , and interfering with , restraining , and coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act.
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 the operations of the Respondent described in section 1, above, have
a close , intimate, and substantial relation to trade , traffic, and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that the Respondent 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 Frederick B. Danese , I shall recommend that the Re-
spondent offer him immediate and full reinstatement to his former or - substantially
equivalent position 22 without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay suffered as a result of the discrimination
against him , by payment to him of a sum of money equal to the amount he would
have earned from the date of his discriminatory discharge to the date of the offer
edent See , e g, N L R. B. v. Link Belt Company, 311 U. S. 584, at 602 ; F. W. Wool-
worth Co v N L. R B , 121 F. 2d 638 , 660 (C. A. 2 ). As has been found above , Treon,
who effected Danese's discharge , denied that he had knowledge of Danese 's union activi-
ties generally , a denial that has already been rejected as wholly Implausible in the light
of a wealth of circumstantial evidence supporting the contrary . ( Other key officials of
the Respondent who appear actively to have participated in the discharge action-Garrett
and Rhyne-significantly did not 'deny knowledge of Danese 's union activities , although
they did not admit it either , not having been questioned on the point .) The circumstan-
tial evidence which in my view is sufficient in strength , when cumulatively considered, to
offset Treon ' s denial and to support a contrary inference is as follows : ( 1) The record
clearly shows that management officials were aware generally of union organizational
activities ; that there was general talk in the plant about such activities ; that the sub-
ject was made a topic of discussion among supervisors ; and that it was reported as a
matter "worth looking into " to Garrett who, as the Respondent 's counsel conceded on
oral argument , would, as company auditor, have normally been interested in such activity.
While knowledge of union organizational activity does not necessarily imply knowledge
of the identity of all engaged in that activity , it seems to me unlikely that widespread-
interest and discussion of union activity in a small plant such as this would not have in-
cluded some reference to the identity of Danese who, as the record shows , was the out-
standing solicitor for the Union, at least among the salesmen . ( See F. W. Woolworth Co.
v. N. L. R B., supra. ) ( 2) There is direct evidence that at least one supervisory em-
ployee, Hudson , knew of Danese 's union solicitation activities and cautioned him to desist
therefrom . ( 3) Danese was the logical person for the Respondent to have suspected of a
leadership role in such activities because less than 2 ,months before he had acted as spokes-
man for the salesmen in a concerted activity , and had been reprimanded therefor. (4)
Part of the circumstantial evidence relied upon to support an inference of unlawful moti-
vation is necessarily inseparably intertwined with circumstances pointing to knowl-
edge-such as the timing of the discharge in relation to the state of union organization,
the prediction made by Hudson , and the inability of the Respondent to account for the
discharge on any plausible basis unrelated to union activity.
22 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of reinstatement , less net earnings ,23 to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289,
291-294. Earnings in any one particular quarter shall have no effect upon the back-
pay liability for any other such period . It will also be recommended that the Re-
spondent preserve and make available to the Board upon request , payroll and other
records to facilitate the checking of back pay due.
As the unfair labor practices committed by the Respondent were of a character
striking at the roots of employees' rights safeguarded by the Act, and disclose a
propensity on the part of the Respondent to continue , although not necessarily by
the same means, to defeat self-organization of its employees , it will also be recom-
mended that the Respondent cease and desist from infringing in any manner upon the
employee rights guaranteed in 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. Office Employees International Union, Local No. 21, AFL, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Frederick
B. Danese, thereby discouraging membership in the Union, the Respondent has
engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
Recommendations omitted from publication.]
23 Crossett Lumber Company, 8 NLRB 440, 447-498; Republic Steel Corporation v.
N L R,B,311U S.7
Brown Instruments Division, Minneapolis-Honeywell Regulator
Company i and District #1, International Union of Electrical,
Radio, & Machine Workers, AFL-CIO,2 Petitioner . Case No.
4-RC-.765. February 7,1956
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Morris Mogerman, hearing
officer. The hearing officer's rulings made at the hearing are^free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to add to an existing unit of production and
maintenance employees at the Employer's plant in the Philadelphia,
' The name of the Employer appears as amended at the hearing.
2 The AFL and CIO having merged subsequent to the hearing In this proceeding, we are
amending the identification of the affiliation of the Petitioner accordingly.
115 NLRB No. 60.