Beatrice Foods Co.

In the Matter of BEATRICE FOODS COMPANY and TULSA GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION 523, A. F. L. Case No.16-CA,-46.--Decided June 24,1949 DECISION AND ORDER On February 16, 1949, Trial Examiner Merritt A. Vickery issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and rec- ommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, with supporting briefs.' The Board 2 has reviewed the rulings of the Trial Examiner and finds no prejudicial error therein. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case, and, to the extent that they are consistent with this Decision and Order, the Board adopts the findings, conclusions, and recom- mendations of the Trial Examiner. 1. In adopting the Trial Examiner's finding that the Respondent did not engage in unlawful surveillance of its employees' union activi- ties,3 we do not rely on the Examiner's statement that no finding of unlawful surveillance would be based on the conduct of the Respond- ent's supervisors, Wynne and Lee, because "the grounds of inference are,equal that they were acting in Respondent's interest or in fur- 1 As no exceptions were filed to the Trial Examiner's findings that the Respondent had not, as alleged in the amended complaint, unlawfully discharged George Elder or unlaw- fully engaged in surveillance of the union activities of its employees, those findings are hereby affirmed. 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Gray]. 3 See footnote 1, above. 84 N. L. R. B., No. 62. 493 553396-50-vol 84-35 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therance of their own private animosity against the Union." [Em- phasis supplied.] When a supervisor engages in surveillance of union activities, the fact that he does so to gratify his own anti-union feelings rather than to serve his employer does not preclude a finding that such surveil- lance is unlawful. To the extent that the foregoing quoted statement in the Intermediate Report implies the contrary, we do not agree. 2. The Trial Examiner found that by certain statements of super- visor Eslick in December 1947, the Respondent coerced its employees, in violation of Section 8 (a) (1) of the Act. While we agree that Eslick's statements were of a coercive nature, we do not believe that they may be imputed to the Respondent under the circumstances dis- closed in the record. Plant Manager Cass testified without contradiction that in the latter part of 1946 he had posted on a bulletin board in the plant a notice addressed to the employees to the effect that no "representa- tions or statements of policy regarding unionism" were to be made by any one other than Cass, and that such statements which had been made or might thereafter be made by persons other than Cass were not authorized. We find that the Respondent by this notice adequately brought home to the employees its repudiation of any anti-union state- ments that might thereafter be made by its supervisors, so that the employees had no just cause to believe that Eslick, who was himself a member of the Union and included in the bargaining unit, was acting for management in making the foregoing statements.' Accordingly, we find, contrary to the Trial Examiner, that Eslick's statements are not chargeable to the Respondent, and that no finding that the Respondent violated Section 8 (a) (1) of the Act may be predicated on such statements. THE REMEDY In view of the fact that the only unfair labor practices found by the Trial Examiner in this case occurred during a preelection cam- paign, the Examiner recommended that the scope of the cease and desist order in this case be limited, so as to proscribe only interference or coercion by the Respondent "in any election that may hereafter be held for the purpose of selecting or decertifying any bargaining repre- + Matter of Houston Shipbuilding Corporation, 56 N L R B 1684, 1686 , Matter of Mid- west Piping and Supply Co, Inc, 63 N L R B 1060, 1069. Matter of Arkansas-Missouri Power Corporation, 68 N L R B 805 , 807. Cf Matter of Fulton Bag and Cotton Mills, 75 N L R B. 883. BEAT,ICE FOODS COMPANY 495 sentative." [Emphasis supplied.] Upon consideration of the entire record, we do not believe that such a limitation on the scope of the cease and desist order in this case would be adequate to effectuate the policies of the Act. The fact that an employer has heretofore en- gaged in coercive conduct only in a preelection campaign is no guar- antee that any future coercive conduct on his part will be restricted to such campaigns. The likelihood is greater that a repetition of such conduct may occur whenever an opportune occasion therefor arises. The limitation quoted above will therefore be omitted from the Board's order. 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, Beatrice Foods Company, Tulsa, Oklahoma, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from : (a) Offering benefits or threatening reprisals, directly or indi- rectly, in order to discourage its employees from supporting Tulsa General Drivers, Warehousemen and Helpers, Local Union 523, A. F. L., or any other labor organization, or in any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Tulsa General Drivers, Warehousemen and Helpers, Local Union 523, X. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, 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, as amended. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its plant in Tulsa, Oklahoma, copies of the notice at- tached hereto, marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being signed by the Respondent, be posted by it immediately upon receipt thereof and maintained by it for 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material; IIn the event this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted in the notice , before the words , "A DECISION AND ORDER," the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 496 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD (b) Notify the Regional Director for the Sixteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed in all other respects. APPENDIX A 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 offer benefits or threaten reprisals, directly or in- directly, in order to discourage our employes from supporting TULSA GENERAL,DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION 523, A. F. L., or any other labor organization. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Tulsa General Drivers, Warehousemen, and Helpers, Local Union 523, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act, as amended. BEATRICE FOODS COMPANY, Employer. Dated------------------- By ------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Joseph Butler, of Fort Worth, Tex., for the General Counsel Messrs. Holly L. Anderson and Gordon L. Shryock, both of Tulsa, Okla., for the Union. Mr. Floyd L. Rheum (Biddison & Rheam ), of Tulsa, Okla., for the Respondent. STATEMENT OF THE CASE Upon a charge filed on January 30, 1948, by Tulsa General Drivers, Warehouse- men and Helpers, Local Union 523, A. F. L., herein called the Union, the General Counsel of the National Labor Relations Board, 1 by the Regional Director for the Sixteenth Region (Fort Worth, Texas ), issued, a complaint dated August 6, 1948, 1 The representative of the General Counsel is herein referred to as General Counsel, and the National Labor Relations Board as the Board. BEATRICE FOODS 'COMPANY 497 against Beatrice Foods Company, of Tulsa, Oklahoma, herein called the Respond- ent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), 8 (a) (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended June 23, 1947, herein called the Act. With respect to the unfair labor practices, the complaint, as originally issued, alleges, in substance: (1) that on January 26, 1948, Respondent discriminatorily discharged one Fred Nichols; (2) that on January 19, 1948, it discriminatorily discharged one Carl Taylor; (3) that from August 1, 1947, Respondent has vilified the Union, has interrogated employees concerning their union affiliations, has urged. persuaded, threatened, and warned its employees from union mem- bership or activity, and to that end has made promises of individual benefit for abstention therefrom; and (4) that by these acts the Respondent has restrained and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. During the course of the hearing, the complaint was twice amended by adding supplemental allegations of unfair labor practices: (a) that Respondent on September 20. 1948, the morning before the hearing was scheduled to open, kept the Union hall under surveillance for the purpose of intimidating witnesses ; and (b) that on September 23. 1948. Respondent discharged one George Elder because of testimony he gave in the hearing on September 21, 1948. Copies of the charge and the complaint, as orginally issued, accompanied by a notice of hearing were duly served upon Respondent and the Union. Copies of the amendments were served upon Respondent and the Union at the hearing when they were offered. On September 23, 1948, Respondent filed an amended answer in which it- denied that it discriminatorily discharged Nichols or Taylor and averred that it discharged both of them for stated cause. It denied all the other allegations of the complaint and the amendments. Pursuant to notice, a hearing was held at Tulsa, Oklahoma, from September 21 to October 7, 1948, before Merritt A. Vickery, Trial Examiner, designated by the Chief Trial Examiner. The General Counsel and the Respondent were both represented by counsel and the Union by counsel and by its business representa- tive. All participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. At the close of the hearing a motion was granted, without objection, to conform the pleadings to the proof in minor matters such as spelling, dates, etc. In the course of the hearing and at its close, a number of motions were made by the parties. Upon certain of these, ruling was reserved Disposition of these motions is made by the findings, conclusions of law, and recommendations appearing below. After the receipt of evidence, counsel argued orally before the Trial Examiner, their arguments appearing in the official transcript of the proceedings. Leave was granted to the parties to file proposed findings of fact, conclusions of law, and briefs with the Trial Examiner. A brief has been received from the Respondent. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following : FINDINGS OF FACT I. THE BUSINESS 01 THE RESPONDENT Respondent is an Oklahoma corporation, having its principal place of business in Tulsa, in that State. It is and at all times herein involved was engaged in the 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business of purchasing and processing raw milk and in the sale of dairy and food products In the years 1947-1948 (to the date of the hearing) 15 percent of Respondent's purchases and 2.12 percent of its sales were made in States other than Oklahoma. The record does not set forth with accuracy the gross volume of sales or purchases. It does show, however, that the volume of business is suffi- ciently large that a major interruption of Respondent's continued operation would be of appreciable effect upon the interstate flow of commerce in milk and dairy products. It is concluded and found that Respondent is engaged in coin- merce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act It admits to membership employees of Respondent. III. THE UNFATR LABOR PRACTICES ALLEGED Foreword. Certain of the allegations of the complaint and its supplementing amendments require but little comment. It is believed that it will make for clarity if they are disposed of at the outset, without regard to their chronological order. a. The "discharge" of George Elder Elder appeared as a witness for the General Counsel on the first day of the hearing, September 21 On the morning of the 23rd when he reported for work as one of Respondent's route salesmen he found that the load in his delivery truck, consisting of different size bottles of milk and cream, packages of butter and cheese, and other items, had been overturned and that, in consequence, the truck was in such condition it would take an hour or more to straighten out. The same sort of mishap had befallen Elder once before, a couple of years earlier. Then he had reported it to Smiddle, the checker, who sent a man to help with the job. Elder had heard, on occasion, of similar mischances to other driver-salesmen. When these had happened, he did not know if they were helped or had to clean up their trucks themselves. This time, when he found the melange in his truck he again asked Smiddle for aid but received only the answer, "You're too damn cranky." Angered, Elder went to his supervisor, Bacon, resigned his job, refused to listen to any remonstrances and went home. The General Counsel alleged this episode to constitute a "discharge" because of Elder's earlier appearance as a pro-union witness. He subpenaed Elder in support of the claim. Elder reappeared as a witness, told the story above set forth and supplemented it with accounts of successive attempts made by various of Respondent's officers to persuade him to return to his job. These commenced within an hour of his return to his home And, to cap the matter, Elder stated that in response to the persuasion lie had agreed to return to work and would recommence the next day, September 28. Even if it be assumed that a inere allegation of discharge is sufficient to sup- port a showing of "constructive discharge" it is apparent there is here no evi- dence that one occurred. Here there is nothing beyond the barest suspicion. The complete absence of factual support need not be elaborated. Because of the failure to sustain the burden of proof, a motion to dismiss the allegation, made at the close of the General Counsel's case, was granted. BEATRICE FOODS COMPANY 499 b. The discharge of Fred Nichols Nichols was a member of the Union. Respondent knew this. When he was discharged for incompetence, some 2 or 3 years before the events here in question, Shryock, the Union's business representative, went to Respondent on his behalf and procured his reinstatement. On January 7, 1948, the Union suffered defeat in a decertification election. A day or two later, Nichols went to the union hall-as did many other of Re- spondent's employees-and signed an affidavit averring anti-union acts preced- ing the polling. On January 26, 1948, Respondent discharged Nichols. The allegation of the complaint is that this was motivated by his union membership and activity. Other than mere membership and the making of the affidavit, there is no evidence of any participation by Nichols in any form of collective action. And there is no testimony, direct or inferential, to support a view that this later act of his had come to Respondent's notice by the date of the discharge. Respondent denied that the firing was motivated by anti-union feeling and averred that it was for cause. In support of this defense, Respondent showed that on the evening of Friday, January 23, Nichols started and drove down a steep ramp in the closed driveway at the plant, one of Respondent's big, heavy tank trailer-trucks and collided with another car at the intersection of the drive- way with a public alley. Because of this, Itehpondent says, it discharged Nichols It was against company rules, posted and repeatedly stated by the supervisors, for anyone not specifically authorized to drive the trailer-trucks. Of this there is no dispute in the record Nichols stated that he had been authorized to drive them from the unloading dock, down the ramp and driveway, across the alley, to the parking lot, and that, to the knowledge of his supervisor, he had done so many times This was denied and is not believed. Nichols failed to give evi- dence of even a single prior instance of operation of one of the trailer-trucks and the only, even inferential, basis for his claims of authority and knowledge rested on the fact that he had occasionally driven one of Respondent's light pick-up trucks on errands ordered by his supervisor. If he had ever driven this trailer-truck, he must have known that the trailer was equipped with vacuum brakes and that it was wholly without braking facilities until after the motor operated long enough to "build up a vacuum." Without waiting for this, he drove the heavy truck down a steep ramp, past a blind corner, and into a public alley. If he knew of the absence of an efficient braking system, and with such knowledge put the truck in motion on a steep down-grade, his negligence might rightly be characterized as wanton On Nichols own testimony, there is no escape from the dilemma. Either he had not operated the trailer-truck before, so that his claim of authority de- rived from custom must fall, or he was guilty of gross negligence in handling Respondent's property. In either event, his operation of the truck on the night of January 23, 1948, furnished cause justifying discharge. That was the cause stated to Nichols at the time he was fired. The existence of such cause, together with the utter absence of a showing of any knowledge on Respondent's part, or any basis for inferring knowledge, of union activity by Nichols, compel the conclusion that General Counsel failed to sustain the burden of proof that the discharge was discriminatory. Because of that failure, Respondent's motion to dismiss the allegations as to Nichols, when renewed at the close of all the evidence, was granted. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. The surveillance of the union hall, September 20, 1948 The hearing was scheduled to open September 21, 1948. The General Counsel came to Tulsa a day or two before, in order to interview witnesses, and, on the morning of the 21st. met some of them at the union hall, on South Main Street in downtown Tulsa. There is no evidence to show that his presence or the fact or the place of the interviews was known to Respondent That morning, between 8: 30 and 9: 30 o'clock, Moody, one of Respondent's driver-salesmen, went to the union hall for interview. He left his route, in another part of town, came to the Union's office in his company truck and parked it in the street in front of the hall. While he was inside, two of Respondent's supervisors, Wynne and Lee, drove past, saw the truck, came back and stopped beside it. Lee, Moody's immediate superior, believing that lie recognized the truck as that of one of his men, got out of the car and went to look in the truck. As he did this, Stallings, the assistant business representative of the Union, saw him and called out, If you want to talk to Jack Moody, he's up here in the office. If you are going to case this deal and check everyone who comes in here today, you better go back and get some more here because there will be about 50 more other people up here during the day. Lee and Wynne then drove away. No claim is made that they, or any other of Respondent's supervisors, returned. So far there is no question as to the facts. There is no evidence of an anti-union motivation of Lee's and Wynne's presence in the vicinity of the union hall, except as it may be inferred from the existence of a dislike of the Union on the part of Respondent's management and from the strong animus against it manifested by both Wynne and Lee. They gave an explanation of their presence. They were out on company business and made a short detour so that Lee could point out to Wynne, in the show window, the automobile he was contemplating purchasing. That happened to take them past the union hall. As they went past, they saw Respondent's truck which properly should have been out on its route on the other side of town. It was standing there, apparently unattended. It was their duty to investigate. When they heard that the driver was there, that ended their interest in the matter, so.they left to pursue their original errand. Both Wynne and Lee were unsatisfactory witnesses. Both showed a hatred of the Union so strong as to justify doubt of their reliability as witnesses in a controversy involving it And the development of their story, in its details, was such as to leave grave doubt in the mind of the Trial Examiner that either regarded the truth or the obligation of an oath as more compelling than a desire to say what was believed would be pleasing to Respondent's top management, or what was considered detrimental to the Union's interest. Except so far as Lee's and Wynne's testimony is corroborated by other witnesses, their state- ments are disregarded. There is corroboration of the fact that on the' morning in question they left the plant on a proper errand for Respondent ; one which would cause them to pass within a block or two of the union hall but would not cause them to pass it. There is corroboration of the fact that the Kaiser-Frazer agency is in the same block with the union hall. Also, one of its salesmen corroborated Lee's statement that he had been in looking at and pricing a new car a day or two earlier. The side trip which took him and Wynne down South Main Street may have been BEATRICE FOODS COMPANY 501 because they suspected-in view of the imminence of the hearing-there might be activity at union headquarters and wanted to find out about it, or, equally, it may have been to pass the automobile agency. Between inferences of equal strength, the choice must fall against the one required to sustain the burden of proof. Here the burden was not on Respondent to justify its supervisors' presence in that block of the public street, but on the General Counsel to prove they were there,for an improper purpose. - Even if it were to be inferred that Wynne and Lee were there to spy, there is no evidence that they were sent on that mission by Respondent or that it even knew of their action. Again, the grounds of inference are equal that they were acting in Respondent's interest or in furtherance of their own private animosity against the Union. This is not a case of a continued surveillance, of which Respondent must be held to knowledge and to approval and ratification in the absence of disclaimer. Here, for aught that appears, was one single act, done on the spur of the moment, undertaken after the men left the plant on another mission, not known to or inspired by Respondent, and not afterward reported to it. In this connection, it should be noted that this is no case in which an employer might profit by learning union personnel, and engages in espionage for that reason. The Union had been in the plant for 2 years under a closed-shop contract which included supervisors and compelled them to union membership. Certainly, Respondent knew, in general, who the strong unionists were. Here, all that could be hoped to be learned were the names of the prospective witnesses. These, of course, Respondent would be bound to learn at the hearing which was to open in another 24 hours. Many of them must have been already known to Respondent-even though not necessarily to Wynne and Lee-because of the fact that the General Counsel had subpenaed them at the plant. And the identity of many others must have been foreshadowed by the details of the charge and complaint which had been served. At the hearing, ruling was reserved upon Respondent's motion to dismiss the allegations of surveillance stated in the first amendment of'the complaint. It will hereinafter be recommended that the motion be granted and the allegation dismissed for failure to maintain the burden of proof. d. The discharge of Carl Taylor It will make for a more clear understanding of this phase of the proceeding if the discussion is prefaced by a brief statement of Respondent's method of doing business and of Taylor's part in the process. The raw milk purchased from neighboring dairy farmers was delivered by them to the plant in the customary 10-gallon milk cans. The method of calculating the price to be paid each producer involved two elements, weight of the amount delivered and its percentage of butter fat. Hence, it also involved two processes, weighing and sampling. When a producer brought in his days amount, he unloaded the cans from his truck onto a conveyor which carried them to the "weigh vat." The pro- ducer, of course, could take the cans from the truck and place them on the con- veyor in any order he chose. Thus he could regulate the order in which they would come to the weigh vat. At the scales, the cans were emptied into the vat by the "milk receiver" and the weight was recorded. While the milk was in the vat the receiver stirred it and took a representative sample which he marked to identify the particular producer and sent it to the laboratory for butter fat analysis. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had a published schedule of prices stating the graduated scale of amounts that would be paid per 100 pounds of milk, depending upon butter fat content. As that increased, the amount went up; 32 percent butter fat brought, according to the schedule published November 1, 1947, $435 per hundredweight of milk ; and each additional ; u percent brought another 10 cents, up to $615 for 100 pounds of milk containing 5 percent butter fat. In Respondent's weigh vat, it was impracticable to weigh more than the contents of 9 cans at one time Consequently, in cases of large producers who brought in from 10 to IS cans it was necessary to divide their milk into 2 weighings, and in those of dairy farmers who delivered more than 18 into 3 or more. In such cases the sample was supposed to be taken in proportionate parts from each "weigh" so that it would be a composite truly representative of the entire amount The necessity of this is obvious. Otherwise it would be possible for a producer to skim part of his milk and add the cream to the first cans sent in so to overload the sample and thus obtain a higher price than he was entitled to in fact Or he could even add water to the cans he thought would escape sampling. By either of these methods he could obtain pay for butter fat not actually delivered. That accurate measurement of the butter fat received was regarded as essential is apparent from the care which Respondent used to account for it. The gross amount taken in in a day was calculated from the volume of milk shown by the weighing and the butter fat, percentages revealed by the laboratory analyses. The amount disposed of through sale of milk, cream, butter, and other products was also calculated. A discrepancy between the two figures showing a "loss of butter fat" was the subject of immediate investigation. It requires no elabora- tion to demonstrate that a continudd and serious shortage could turn a dairy company's business from profit to loss In December 1947, Respondent discovered a loss of butter fat which continued from day to day and became serious in amount It started to investigate. Carl Taylor was Respondent's milk receiver He emptied the producers' cans into the weigh vat as they came to him on the conveyor ; took a sample of each vat's contents and recorded its weight. He marked the sample for identifi- cation and sent it to the laboratory. His was the responsibility to see that each sample was truly representative of the entire amount brought in by each pro- ducer each day. When he had weighed and sampled the vat's contents he pulled a lever which emptied it into a large receiving tank, located in the pasteurizing room, in which the milk of various producers was mixed and from which it went to storage tanks 'and the pasteurizer. Taylor was an ardent adherent of the Union. He participated in activities at the union hall. He spoke at union meetings. He lectured to new members on the principles of unionism. In plant meetings, he argued with Respondent's manager, Cass, regarding labor organizations, wages, and corporate profits. Of all this there is no question, and, on the record, there can be no question but that Respondent had full knowledge of Taylor's views and activities above described. Immediately after the decertification election of January 7, 1948, he signed an affidavit alleging improper anti-union activity by Respondent. There is no evi- dence to show that this ever came to Respondent's attention. On January 19, 1948, Respondent discharged Taylor. Respondent's account of the discharge is as follows : The earliest suspicion regarding the continuing butter-fat shortage fell on Hayes Holland, the labora- tory technician. He was new in his job and it was believed that because of inex- BEATRICE FOODS COMPANY 503 perience he was reading the butter-fat tests erroneously and crediting the pro- ducers with more than they actually delivered. By the middle of 3'anuary.1948, Holland and Earl Brown, who was in charge of pasteurizing, had their own suspicions regarding the cause of the continuing loss of butter fat. They secretly made arrangements to take independent samples of the milk received and to do so without the knowledge of Taylor or any producer. They did this by sampling the flow from the weigh vat to the receiving tank. On the morning of January 17, a large producer, one Roy Smith, brought in so large a number of cans that it required three weighs Taylor received it. He sent to the laboratory a sample purporting to be a composite of Smith's milk. As each of the three weighs flowed from the weigh vat, Holland and Brown took a sample. The sample submitted by Taylor tested 3.9 percent butter fat. The three samples taken by Holland and Brown tested respectively : first weigh, 3.9 percent ; second, 3.9 percent ; and third, 1.0 percent. They reported their finding to Manager Cass on the afternoon of January 17 Taylor was off work the next day. Cass called Taylor to his office on the 19th after the morning rush was over and asked about the matter. Taylor frankly admitted that he took samples from the milk of Smith and certain other large producers only from the first weigh. He did this, he said, only to favor them by saving them the time-a minute or two-that would be required to take the additional samples. He said he thought it would be to the company's interest thus to please the large producers because of the competition between milk processors for a sufficient regular supply. Also he thought, he said, there was an additional reason to favor Smith because he was, besides a large producer, a dairy farm inspector for the Tulsa Health Department. Because of these facts, Respondent fired Taylor. When Taylor was on the stand he admitted, in substance, what Respondent alleged as to his method of conducting his job. The major differences between the two stories were that Respondent said he had admitted his omission to take composite samples was regular and customary while Taylor said on the stand it had been only occasional, in Roy Smith's case about a dozen times a year and for others still more infrequently, and that Taylor said he thought his practice was known to his superiors while they denied knowledge prior to the report made by Holland and Brown. There was no evidence to show that Taylor's superiors knew of the matter and no evidence of circumstances to arouse their suspicions and put them on notice. It is found that respondent did not know of Taylor's dereliction until January 17, 1948. The General Counsel called as a witness one Edward Hauser who had worked on the receiving dock about 6 or 7 feet from Taylor and in full sight of him. (Hauser had resigned fiom Respondent's employ in July 1948, in anger at a remark made by Cass. He had been an active and most loyal union member.) He testified that Taylor "always" took the sample of Roy Smith's milk from the first two cans to be brought in on the conveyor. Further light is thrown by an examination of the daily records of Roy Smith's milk. Taylor was discharged on January 19, 1948, late in the afternoon. Smith would discover his absence when he brought in his load on the morning of the 20th. Commencing January 21, Smith's daily production took a serious and continued drop. For the 2 weeks ending January 20, Smith was credited with a total of 25,181 pounds of milk. In the next 2 weeks he delivered only 19,342 pounds In the 2 weeks preceding Taylor's discharge Smith's lowest daily figure was 1,770 pounds and for that period the daily average was 1,779 pounds. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the following fortnight the highest daily amount was 1 ,443 pounds and the- daily average fell to 1,382 pounds. In the 2 weeks after he found Carl Taylor was not at the receiving dock he brought in almost 3 tons less of "milk " than in the immediately preceding identical period, an average of 397 pounds less per ,day. To find a trout in the milk may be more conclusive , but it is not only cir cumstantial evidence warranting a belief that something other than lacteal fluid had entered the milk can. Smith evidently thought so, too. He was called as a witness by the General Counsel . While he was on the stand he was interrogated by the Trial Examiner and answered : Q. If you were told that at one time you brought in about 20 , or 21, 22 cans of milk, enough for three dumpings , and that the first dumping of your milk tested 3.9 butter fat, and the second one tested 3.9 butter fat, and the third ,one tested 1.0 butter fat, would you have any explanation? A. It wouldn't be much cream on it. Q. What would be the cause of that, do you suppose? A. I wouldn't hazard a guess on that. Q. Well, if it were some other producer than yourself, and that same thing happened , would you have any explanation? A. I would have three guesses. Q. Suppose you tell me what those three guesses would be. A. Well, the first two guesses would be, there was water in it, or it had been skimmed, partially skimmed. At least, it was not unreasonable for Respondent to believe it daily had been paying $5 .05 per hundredweight-the price of milk with 3.9 percent butter fat- for about 400 pounds of water. And that this had been caused by Taylor 's action. With this in the record , not only undenied but largely admitted , it must be held that the burden of proof that the discharge was motivated by Taylor's union membership and activity has not been sustained . It will be recommended that the allegations of the complaint regarding Taylor's discharge be dismissed. e. Ray Eslick' s meeting , December 1947 Eslick was one of Respondent 's assistant retail route supervisors, over six driver-salesmen . A petition for decertification of the Union was filed December 1, 1947, and an election was scheduled for January 7, 1948. Sometime in the interval-the exact date is uncertain-Eslick invited his six subordinates to come to his house after they returned from their routes. The invitation was extended at the plant , while Eslick and the men were there in their respective capacities of supervisor and employees. There were six invitees : Paul Willis, J. C. Elder, Raymond Allen , Gerald Ess, Lynn Bertling, and William Moulton. The first and the last named did not attend. The other four were present. All four and Eslick testified as to what occurred at the meeting. No one of the five was a satisfactory or reliable witness Eslick was evasive and of an evanescent memory. He remembered details of the meeting and of what he had said when he was under interrogation by Respondent 's counsel but when further questioned about the same meeting and the same statements by the General Counsel , his memory failed because "it was ten months ago." And when asked by the Trial Examiner about a matter that had occurred within 6 weeks of the hearing, his memory again failed. J. C. Elder testified positively to statements made at the meeting which all the others were sure were not made. Bertling denied positively that matters were BEATRICE FOODS COMPANY r 505 discussed which all the others agreed were brought up. Allen could not remember ; had his recollection refreshed by the statement he had given a Field Examiner ; then remembered and testified in accord with his prior statement ; later, when recalled by Respondent, inferentially denied part of his prior testimony ; and ended by reaffirming it. Ess' memory came and went but not as badly as Eslick's. Elder, Bertling, Allen, and Ess were all new employees. Elder had resigned before the hearing and was not in Respondent's employment at the time he testified. Consequently, he was under no fear of reprisal because of his testimony. But, on the other hand, he manifested a pro-union, anti-company feeling so strong as to make it doubtful that his testimony should be credited beyond the points of which there is corroboration. Bertling was bitterly anti-Union He contra- dicted himself, denied that statements were made which Eslick admitted he had made and which the others agreed were made. His testimony is disregarded' except so far as corroborated by the others Allen and Ess created the impression that they were reluctant to testify and were afraid of injuring their standing with Respondent. Allen's shiftings of position have been noted. Ess' testimony contains a number of self-contradictions. Eslick admitted the purpose of the meeting. "I was trying to sell them on my viewpoint, as to how I felt about the Union." He stated frankly that his attitude was one of opposition and hostility ; that he thought Respondent was a fair employer ; that a union was not needed ; and that if there were to be a union in the plant it should be one other than this Union. In general, the men agreed that this was the viewpoint Eslick had voiced. Had he confined himself to the expression of his views on collective action or of his opinion of the Union, his talk, clearly, would come within the pro- ' tection of Section 8 (c) of the Act. But he went further. He admitted that he told the men there was an expansion program set up and that if the Com- pany was free, "as it would be without a union contract," this program could be carried on at a faster pace. He admitted that he also told them "that as the expansion program materialized, that there would naturally be more jobs, assistant supervisors, or promotions . . . but it would be according to the rate of pace that the expansion program could go forward." From his testimony, it is certain he indicated to the four that when the company expanded they stood well up in the line for promotion and higher salaries. And that, in that connection he spoke about the coming election is the unavoidable con- clusion from his admission that J. C. Elder said, at the meeting, that he did not know how he was going to vote, that he was broad-minded and wanted to hear both sides. Shortening and summarizing the evidence as a whole-and disregarding all statements made by any one of the five not corroborated by at least one other-it is found that Eslick promised a difference in company policy on the outcome of the election ; that if the Union won there would be no expansion, no new jobs and no promotions ; while if it lost, there would be rapid expansion, a number of new jobs, promotions to assistant supervisorships, and that the situation thus created would be to the individual benefit of the four employees at the meeting. This does not come within the protection of Section 8 (c). It promised a benefit for securing union defeat Respondent argued that Eslick held his meeting "on his own," without Re- spondent's knowledge, and even in violation of a rule, stated to the super- visors, that no statements regarding the Union were to be made except by Cass. Even if this be accepted as true, it does not absolve Respondent. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Here we have a supervisor talking to his direct subordinates. He called the meeting while the men were on duty at the plant. They came to it directly from their jobs It was to discuss a phase of their employment. The meet- ing was opened by the supervisor telling his men of his intimacy with Re- spondent's manager and his knowledge of the manager's views. Clearly, this was sufficient to create the appearance of authority. Upon the evidence, there can be no doubt but that it did in fact create that appearance. Respondent did not disclaim Eslick's action. It did not discipline hum for breach of the rule. Respondent had been prompt to discharge Nichols and Taylor for disobedience of rules, to the detriment of Respondent's interest. Eslick's violation of a rule, in derogation of rights guaranteed by law to the employees, did not bring forth even a reprimand. It is found that by Eslick's talk to J. C. Elder, Bertling, Allen, and Ess, Respondent interfered with, restrained, and coerced its employees. f. Manager Cass' letters and statements, December 1947-January 1948 In November 1947, the Union asked for a wage increase. Cass thought the amount demanded was excessive. He expressed his view in letters handed out to the employees and mailed to their wives. About December 1, 1947, some of the employees filed a petition for decertifica- tion of the Union. After a series of meetings with the various interested parties, a consent election was arranged for January 7, 1948. As matters developed, Cass kept the employees informed by a series of letters and notices. Throughout the series, he urged all employees to vote in order that the result would truly reflect the will of the majority. Also, he repeatedly wrote, I personally think that everyone will get along better without the Union representing them . .: however, if it is the wish of the majority to have the Union represent them, I will continue to deal with the Union representatives. Early in December 1047, Cass asked Retail Route Salesman George Elder to come to his office. Cass knew that Elder was one of the Union's leading adherents in the plant. Gass, according to Elder, told him he would like to talk about the Union, and he explained some of the expansion program that he had in Tulsa and the eastern part of Oklahoma, and that he couldn't carry out successfully his expansion program with his hands tied, or as he called it, his hands shackled by the Union and that he would like to get the Union out so that he could operate without interference of outside parties. And he told me that I had been a successful route salesman and always kept my route up, and that there was great possibilities with the Company, and that there was room for advancement for people who would work with the Company and that he hoped that I would see fit to help the Union out. On January 6, 1948, the day before the election, Cass held six meetings, in the six including all the employees of the Tulsa plant Two of the meetings were the sales meetings regularly scheduled for that day. The others were specially called. At all six meetings, Cass spoke at length concerning the election. Each of his speeches lasted about 45 minutes. He said substantially the same things at all the meetings No recording was made of the speeches At the hearing, almost 9 months later, Cass himself and almost every one of the approximately 50 employees who were called as witnesses were asked what Cass had said. Most of the employees were BEATRICE FOODS COMPANY 507 so vague in their recollections-or so partisan on one side or the other-that their attempts to reconstruct the remarks are of little value. Cass testified at great length and in detail, reconstructing his six times repeated speech. Former employees Taylor and Hauser gave their memories of it much more briefly than did Cass but with much more detail than any other of his listeners. Considering the length of time that had elapsed, the differences in viewpoint, and the number of different matters involved there is a remarkable degree of agreement between the three accounts. Taylor and Hauser were called by the General Counsel. Cass heard them testify and had an opportunity to study the record of their appearances before he took the stand. At no point does lie wholly contradict their accounts. The differences between them are of minor detail and of emphasis. Illustrative of this are these statements of the same point from each of the three accounts. CASS. I told them that I had been told by men who had had Unions in their organizations for a long time that they had found it difficult to promote men from the ranks into' positions of responsibility, because evidently due to, many years of membership in a union there grew up a doubt of the kind of treatment an employer would give. TAYLOR. Mr. Cass told us that he had been told and had found it to be true that it was unwise to promote a union-minded man from the ranks of the workers. HAUSER. He said that in the past it had been a Company policy to try to refrain from advancing men that were union-minded because they didn't hold loyal to the company and the company activities, that it was a bad policy to advance a rank and file worker that was union-minded, just didn't see how he could do it. None of the witnesses , not even Cass himself, purported to give the exact words that had been used on January 6 All that anyone attempted to testify to was the substance of the speech. Consequently, it is impossible to find what words were used On the evidence as a whole, it is found that the tenor of Cass' remarks was as stated hereinafter. Cass was careful to assure the employees that there would be no discrimination against any individual because of the way he voted and to repeat that everyone had a right to vote according to his own desire and that the ballot would be secret. He stated that lie, personally, hoped the election would result in the defeat of the Union. He stressed the benefits he had given the employees before the Union entered and contrasted with them the lesser benefits the Union had secured. He criticized unions in general for sowing among the workers the seeds of suspicion of employers and condemned this Union and its officers for making unreasonable demands and thus jeopardizing the welfare of the employees and their families. Cass went further. He stated that he would do more for the employees if the Union was defeated. His own account of his remarks states : As far as doing more for the men without a union contract than what I would do with a contract, I used the illustration that when men had confi- dence in me, I was going to do everything that I possibly could to discharge the responsibility that I owed them, that I would exert myself to a greater degree than if I felt I was being totted . . I told them that if I were bound by a union contract I'd be a lot more conservative in doing things Cass supplemented this by discussing the contemplated expansion program and what it might mean to the employees. He talked about the possible effect on this 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of union defeat or victory in the election . Cass stated this part of his talk as follows : (Abbreviated and paraphrased ) I discussed the expansion program. I told them it was my intention to do everything in my power to continue to expand ; that it was my hope and determination to operate throughout southeastern Oklahoma. I told them , "I think that you and I know a lot more about the milk busi- ness than the Union representatives do, and I think that we know what we can afford to do and can 't afford to do better than they do. I told them that as we continued to expand , naturally there are going to be more openings for everyone in the organization . I told the people I wasn't going to die if the Union won ; that I'd be in there pitching just the same. I told them I could put a little more energy and a little more enthusiasm into it if the vote indicated they had confidence in me. Upon the record as a whole , it is apparent that Cass' talks went further to create in the minds of the employees a picture of benefits to follow from a union defeat and of detriments resulting from a union victory than his reconstruction of his words implies . The net effect of the talk was summarized by Taylor. Mr. Cass went ahead to tell us that he felt like that he could do better and that we would all do better without the Union in the plant. He said that, for one thing, he said that if the-if his hands were not bound and shackled, he was not compelled by the union contract to do certain things, that he would do more for the men and do better things for them, whereas he said if he was bound by a union contract and compelled to do things, he would do as little as possible. . . . He said that he had in mind an expansion program which it was impossible for him to carry out as long as he was having to meet the demands of the Union and was not given a free hand. Both the General Counsel and counsel for the Respondent have praised Hauser as a witness ; rightly, in the opinion of the Tiial Examiner . He is outstanding, in the record , for freedom from emotional bias and scrupulous care not to over- state. On cross-examination he was asked and answered : Q. Ed, did he make any promises of any benefits to anybody if they would vote against the Union? A. Well, I am going to ask you that you let me answer this question in this way : Directly , to any one person, he didn't make any promises , no, he didn't make any promises ; but indirectly , yes. But indirectly , by saying the words, "if I wasn't shackled by the Union , I could do a lot more for you boys." From Cass' testimony , it is apparent that he was at all times cognizant of the greater freedom given him by the 1947 amendments of the Act. And it is clear he was consciously attempting to exercise the maximum of that freedom and hew as closely to the line as possible. The "Mexican Knife Throwing Act" is a haz- ardous occupation , not only for the target whose curves are being outlined on the backboard , but also for the thrower when lie can be held responsible for errors. Section 8 ( c) of the Act omits from its protection all promises of benefit and all threats of reprisal , not merely express, or specific, or direct promises and threats. It is found that Respondent , by Cass' talk with George Elder, early in December 1947, and by Cass' series of talks on January 6, 1948, promised benefits for union defeat at the election and , inferentially , threatened reprisal for union BEATRICE FOODS COMPANY 509 victory. Those talks are removed from the protection of Section 8 (c). They constituted interference with, restraint, and coercion of Respondent's employees in the exercise of rights guaranteed by 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 connection with the operations of the Respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and, to the extent that they have been found to be unfair labor practices, 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 prac- tices, the Trial Examiner will recommend that it be ordered to cease and desist therefrom and take certain affirmative action which, it is found will effectuate the purposes of the Act. The acts hereinabove specified in Section III (e) and (f) being the only unfair labor practices alleged in the complaint and the amendments thereto as to which it is found that the burden of proof has been sustained, it will be recommended that all other allegations of the complaint and the amendments thereto be dis- missed. The only unfair labor practices found to have been committed were in con- nection with an election to determine the continuing right of the Union to serve as bargaining agent of the employees Under such circumstances and in view of the failure of evidence to show any unfair labor practices on the part of Re- sporident during the preceding 2-year period while the Union was the exclusive bargaining agent of its employees under a closed-shop contract, it will not be ,recommended that Respondent be ordered to cease and desist from action or to take affirmative action beyond such as seems necessary to prevent a repetition of the offense found to have been committed, or of similar action, when and if Respondent's employees, or any of them, again seek to be represented by, or to join or assist the Union, or to do any of said acts in connection with, or to form, any other labor organization. CONCLUSIONS OF LAW 1. The operations of Respondent, with its principal office at Tulsa, Oklahoma, constitute commerce within the meaning of Section 2 (6) and (7) of the Act 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise .of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce .within the meaning of Section 2 (6) and (7) of the Act. 5. Upon the evidence, Respondent has not engaged in unfair labor practices by discharging George Elder, Fred Nichols, or Carl Taylor, or by engaging in -surveillance of the union hall, or by any of the other acts alleged in the petition except as specifically found above to the contrary. 853396-50-N of 84-36 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDATIONS I Upon the basis of the above findings of fact and conclusions of law, the Trial Examiner hereby recommends that the Respondent, its successors, and assigns, shall : 1. Cease and desist from : (a) Interfering with, restraining, or coercing its employees or any of them, in any election that may hereafter be held for the purpose of selecting or decertifying any bargaining representative, by promising any benefit, expressly or inferentially, directly or indirectly, or in any way, to any employee, group of employees, or to the employees as a whole, or by threatening any reprisal, expressly or inferentially, directly or indirectly, or in any way, to any employee, group of employees, or to the employees as a whole, for voting for or against, or seeking to persuade or influence others to vote for or against any party, proposition or issue at any such election, or based upon the outcome of any such election. 2. Take the following affirmative action which the Trial Examiner finds will effectuate the purposes of the Act : (a) Post at its plant in Tulsa, Oklahoma, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being signed by the Respondent, be posted by it immediately upon receipt thereof and maintained by it for 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Sixteenth Region in writing twenty (20) clays from the date of the receipt of this Intermediate Report what steps the Respondent has taken to comply with the foregoing recommendations. It is further recommended that unless the Respondent shall within twenty (20) days from the receipt of this Intermediate Report notify the Regional Director for the Sixteenth Region in writing that it will comply with the fore- going recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action above stated. 3. It is recommended that the complaint and the amendments thereto insofar as they allege that Respondent discriminatorily discharged George Elder, Fred Nichols, or Carl Taylor, or that it discriminatorily failed or refused to reinstate any of them, or insofar as they allege that Respondent instituted or maintained surveillance of the union hall, or insofar as they alleged that Respondent com- mitted other unfair labor practices, except as above affirmatively found that un- fair labor practices were committed, be dismissed. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the (late of service of the order transferring the case to the Board, pursuant to Section 203 45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C, an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Imme- BEATRICE FOODS COMPANY 511 diately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. State- ments of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any party desire per- mission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order , and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 16th day of February 1949. MERRIrr A. VICKERY, Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor $elations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist TULSA GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION 523, A. F. L, or any other labor organization WE WILL NOT in any manner interfere with, restrain , or coerce our em- ployees in any election that may hereafter be held among our employees in exercise of that right. BEATRICE FOODS COMPANY, 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.