Fall City Creamery Co.

692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FALLS CITY CREAMERY COMPANY and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, GENERAL DRIVERS AND HELPERS, LOCAL UNION No . 554, AFL. Case No. 17-CA-431. December 2,1952 Decision and Order On May 20,1952, Trial Examiner Robert E. Mullin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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, Falls City Cream- ery Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Gen- eral Drivers and Helpers, Local Union No. 554, AFL, or in any other labor organization of its employees by discriminating in regard to their hire or tenure of employment, or any term or condition of em- ployment because of their membership in, or activity on behalf of, any such labor organization. (b) Engaging directly or indirectly in surveillance of union meet- ings, and in any manner interfering with, restraining, or coercing its employees in the right to self-organization, to form labor organiza- tions, to join or assist the above-named labor organization or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in collective bargaining 'Pursuant to the provisions of section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Styles and Peterson]. 101 NLRB No. 135. FALLS CITY CREAMERY COMPANY 693 or other mutual aid or protection, or to refrain from any or all of 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 let, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to John Arthur Schlicker and William Ardell Schlicker immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, and make them whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy" for any loss of pay they may have suffered by reason of the Respondent's discrimination against them. (b) Upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, time cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of back pay due. (c) Post at its plant in Falls City, Nebraska, copies of the notice attached hereto and marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter in conspicuous places in- cluding all places where notices 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. (d) Notify the Regional Director for the Seventeenth Region, Kansas City, Missouri, in writing within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. 2 This notice shall be amended by substituting the words "A Decision and Order" for the words "The Recommendations of a Trial Examiner" in the caption thereof. If this Order is enforced by a decree of a United States Court of Appeals , the notice shall be further amended by substituting for the said words, "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing an Order." Intermediate Report STATEMENT OF THE CASE This proceeding , brought under Section 10 (b) of the National Labor Relations Act, 61 Stat. 136 (herein called the Act), was heard in Falls City , Nebraska, on November 13 and 14, 1951 , pursuant to due notice to all parties. The complaint, issued on October 11, 1951, by the General Counsel of the National Labor Rela- tions Board,' and based on charges duly filed and served , alleged in substance 1 The General Counsel and his representatives at the hearing are referred to herein as the General Counsel and the National Labor Relations Board as the Board. The above- named Company is referred to as Respondent and the charging Union, likewise named above, as the Union or the Teamsters. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent had engaged in unfair labor practices proscribed by Section 8 (a) (1) and (3) of the Act by ( a) discriminatorily discharging John Arthur Schlicker and William Ardell Schlicker on April 20 , 1951, and thereafter refusing to reinstate them ; and (b ) since that date by engaging in other specified acts of interference, restraint, and coercion . In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations but denied the commission of the alleged unfair labor practices. All parties were represented at the hearing by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally and to file briefs, and proposed findings and conclusions. Oral argument was waived. Subsequent to the close of the hearing, the General Counsel and the Respondent submitted briefs , both of which have been carefully considered by the undersigned. 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 RESPONDENT Respondent, a Nebraska corporation, with its principal office and place of business at Falls City, Nebraska, is engaged in the processing of poultry and eggs and the manufacturing of butter. During 1950 Respondent purchased poultry, eggs, and cream valued in excess of $500,000, of which more than 50 per- cent was sold and shipped to its Falls City plant from outside the State of Nebraska ; in the same year, the Respondent sold finished produce valued in excess of $500,000, of which more than 75 percent was shipped to out-of-State customers. Upon the foregoing facts, the Respondent concedes, and I find, that the Falls City Creamery Company is engaged in commerce within the meaning of the Act. U. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2 (5) of the Act. M. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Sequence of events On April 19, 1951,2 John and William Schlicker, brothers and employees of the Company, went to Omaha, Nebraska, where they visited the Teamsters' office, spoke to its representatives about organizing the Respondent's employees, signed cards authorizing that Union to represent them and obtained a supply of such cards for distribution among their fellow employees. Upon their return to Fall City that evening they contacted some of their coworkers and persuaded a number of them to sign authorization cards. On the following day the Schlicker brothers were discharged. On May 7 the Union filed a representation petition with the Regional Office of the Board. Falls City Creamery Company, Case No. 17-RC-1046. A repre- sentation hearing was held on June 14. The Teamsters, however, subsequently withdrew the petition. 2 All events referred to herein occurred during the year 1951 unless otherwise noted. FALLS CITY CREAMERY COMPANY 695 2. The allegations with respect to interference, restraint, and coercion ; conclusions with respect thereto The General Counsel alleged that subsequent to the Respondent' s discharge of the Schlickers the Company engaged in various acts of interference and coercion. These charges arose out of several incidents. The first occurred on Monday afternoon, April 23, when Charles James, president of the Respondent, spoke to the employees of the candling room on the subject of union organization.' Robert N. Gililand, the processing foreman, told the 10 to 12 women working there to assemble in an adjoining room to hear the remarks of the plant president. In addition to the employees, Plant Superintendent Cato Hoel and Foreman Gililand were present. Several witnesses, including James, testified as to the contents of this speech. There was a conflict in the testimony as to only two items which James allegedly covered in his remarks. According to Virginia Foster, James told the employees that "there wasn't going to be a . . . union there if he could help it, there wasn't any coming in." The same witness also testified that James told them that if the plant were organized the employees would not be permitted to transfer from one department to another.4 She like- wise attributed a similar remark to Hoel, allegedly made during a question and answer period following James' speech. Wilma J. Stump, another employee in attendance at this meeting, appeared to corroborate Foster's testimony on this latter point when testifying on direct examination. On cross-examination, how- ever, Stump was unable to recall whether James had said that unionization would make it impossible to move from one department to another or whether he had said merely that there might be difficulties in getting transferred. James denied that on this occasion he had declared to the employees that he Mould have no union in his plant. In connection with the matter of transfers, James averred that he told the employees that he was unfamiliar with union operations, that although he understood there had been situations where a union would not permit transfers, he would attempt to operate the plant the same as he had in the past, but that in any event all such questions had to be left for settle- ment at a later date. James further testified that he told the employees that he was talking to them because he understood one of them had gone home crying the night before, fearful that she was going to lose her job. According to James, he told them that the Schlickers had been discharged for cause and not for any union activities, that in the event a union was organized there would probably be an election by secret ballot conducted under the supervision of the National Labor Relations Board, and that in no event would anyone be fired for voting one way or the other. Hoel corroborated James' testimony. As for his own participation in the meeting, Hoel testified that one employee, whose name he did not recall, asked whether transfers would be possible in the plant if it were organized. According to Hoel, he told the women that that would depend en- tirely on the collective bargaining contract, that he had been in some organized plants where an employee could not go from one department to another, but that he had also been in others where employees could shift back and forth as the 9 James testified that he spoke to these employees on April 23. Other witnesses, such as Foster and Gililand, placed the date somewhat later in the month but the testimony which they gave on the time factor was vague and indefinite. The undersigned considers James' recollection as to the date the most accurate. 4 At this time there was a free interchange of personnel between the candling room and the picking room. In this way , employees for whom there might be only 2 days work candling eggs could spend the remaining 3 days of the week picking chickens. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work was assigned' Much of James' testimony as to the content of his speech was also corroborated by Stump. On the basis of the foregoing, I am not convinced that either James or Hoel told the employees on this occasion that if the Union organized the plant, transfers would be impossible. Neither am I satisfied that James made the antiunion remark attributed to him by Mrs. Foster. To me, it is significant that her testi- mony in this connection was uncorroborated even by Stump, her coworker who was present at the meeting but who made no mention of having heard any such remark. Although 10 to 12 rank-and-file employees were in attendance at the time the speech was made, the General Counsel called only Foster and Stump as witnesses. In view of the credible testimony on this incident by both James and Iioel, and from my observation of the demeanor of the witnesses, I do not feel Foster's testimony in this connection should be credited.6 Accordingly, I con- elude and find that the remarks of the Respondent's president and plant superin- tendent at this meeting were not coercive. On the evening of April 24, James Steele, business representative of the Team- sters, conducted an organizational meeting for the Respondent's employees at the home of William Schlicker. The General Counsel alleged that as the employees were gathering at this residence, several of the Respondent's management per- sonnel engaged in surveillance. It is undisputed that for some 15 to 30 minutes prior to the meeting and when a number of the Respondent's employees were standing outside the Schlicker home, three members of the plant management drove by or were otherwise in the immediate vicinity. Foster, Hoy, and the Schlickers testified that Harold Chever, the truck foreman, drove slowly by their meeting place at least twice that evening, on the first of which occasions he was proceeding toward the plant and on the second, returning from that direction. Several of these witnesses also testified that during this same period, Berthal Kelly, downstairs foreman in the creamery, drove by. by and the Schlickers further testified that at about the same time, Charles James, president of the Respondent, was driving slowly about the area, never going directly past the Schlicker home but circling that section via adjoining streets. In their testimony with respect to this matter, all representatives of the Respondent, whom these employees had named, denied any design or attempt at surveillance. Chever testified that on the evening in question he had in fact driven by the Schlicker residence twice, accompanied by his wife and daughter; that on the first occasion he was bound for the plant to check on some of the trucks and on the second he was proceeding toward the business section of town so that his wife could do some grocery shopping before returning to their home! Kelly testified that when he drove by the site of the meeting, likewise accompanied by his family, he was merely proceeding along the route he customarily followed in returning to his own home which was located less than a block away and only around the corner from the Schlicker residence.' James testified that after leaving the plant on the evening of April 24 he had driven up Chase Street to the intersection immediately below William Schlicker's house. There he noticed the cars and people in front of that residence, won- 8 Prior to joining the Respondent's organization , Hoel had been with Armour and Company over a long period, where, he testified, he had dealt with unions for over 18 years. He impressed the Examiner as a frank and honest witness. 8 Gililand, called as a witness for the Respondent , could recall no details as to the speech in question. 4 The Schlicker residence was located on Chase Street, only a few blocks away from the creamery and on one of the much used thoroughfares leading toward it. 8 The General Counsel waived cross-examination of Kelly. FALLS CITY CREAMERY COMPANY 697 dered what the gathering was about and then made an approximately six block long trip around the area before returning to the route on which he had been proceeding before making this detour. To the undersigned, the explanation offered by both Chever and Kelly for their presence near the union meeting place appears reasonable and is credited. The conduct of the plant president, however, cannot be considered in the same light. At the hearing, James testified that at the time he was "somewhat" interested in what the crowd was doing and that he "suspected" that a union meeting was in progress. In view of James' own explanation and the credible testimony offered by the General Counsel's witnesses, it is apparent to me that his activity in the vicinity of the union meeting constituted unlawful surveil- lance. I so find. International Furniture Company, 98 NLRB 674. The General Counsel further alleged that Chever subsequently engaged in unlawful interrogation. Thus, Robert by testified that on an occasion about a week after the organizational meeting at Schlicker's home, on reporting to Chever at the plant, his foreman asked what his feelings were with respect to the Union, told Hoy that he did not have to send him out on a truck, declared that there were "other drivers that could take that run," and finally stated that he knew everyone who attended the union meeting since he had a man in attendance. Chever testified that on the day in question he had upbraided Hoy for carelessness in using plant vehicles and warned him that unless he improved, Chever would not send him out again. Chever could recall no mention of the Union in his conversation with Hoy that day. He denied that he had ever in- structed any employee or supervisor to attend any union meeting. by was not an impressive witness and some of his testimony was extremely vague and in- conclusive. Although he testified that on this occasion Chever sought to dis- cover his attitude on the Teamsters, Hoy later conceded that on that particular day and for some time while prior thereto he had been wearing a union button at work. Since Hoy's prounion attitude should have been rather obvious from this fact it seems rather unlikely that Chever would have engaged in any ques- tioning to obtain the same information. Chever's testimony that Hoy had been a careless and indifferent employee and that be had had to remonstrate with him about his work on this and other occasions was entirely credible. by was, in fact, discharged a few weeks thereafter. In the light of the foregoing, I am convinced that Chever's version of the events that day is the more credible and I so find. The General Counsel offered two other witnesses in support of the allegation that Respondent's supervisory staff had made coercive statements. Foster tes- tified that about the middle of May, Foreman Gililand told her "not to say any- thing to anyone if I had joined the union, or if I hadn't, because if I did, I would probably get fired." Stump likewise testified that during this period in May she asked Gililand what he thought of the Union and that he replied, "Well, I think if it is going in, you won't have as much work." Gililand, while on the witness stand, denied uttering the statement attributed to him by Foster and could not recall any conversation with Stump such as that to which she testified. Gililand was a reluctant and evasive witness whose testimony, to the Examiner, was most unconvincing. Foster's testimony, at least in this connection, was persuasive. So, too, was that of Stump. Consequently, I credit their testimony over that of their foreman. It is well settled that such remarks as those of Gililand are coercive. I so find and conclude that by such statements, the Re- spondent violated Section 8 (a) (1) of the Act. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The daacharges 1. Introduction The General Counsel endeavored to prove that the Respondent discharged the Schlickers immediately after it became aware of their union activities and on account thereof. The Respondent denied this allegation and offered evidence that the Schlickers were dismissed for cause. William Schlicker was an employee of the Respondent for over 7 years prior to his discharge. For most of that period he worked principally as a poultry killer. During periods when there was no work available for him in the poultry processing department he drove a truck as a relief operator or performed main- tenance work for the plant engineer. Schlicker credibly testified that through- out the period of his employment he had been reprimanded only once, an occasion in 1947 when he had been late for work, and that at no time thereafter had he been criticized or disciplined. He was paid at an hourly rate. John Schlicker was first employed by the Respondent in November 1950 as a truck driver. This remained his primary duty but occasionally when there was no such work for him he was assigned maintenance duties in the plant. From the time of his initial employment until April 1, 1951, he was paid at an hourly rate. On the latter date, however, the Respondent placed all its regular truck drivers on a monthly salary. Thereafter, and until his discharge on April 20, he was paid at the rate of $240 per month. As noted above, on April 19, the Schlicker brothers visited the Union's office in Omaha. John was off work that day. William went to the plant early that morning. Superintendent Kelly was not there but Chever was. William asked the latter whether he could be free that day to go to Omaha. Chever told him "All right. There isn't much doing today but be sure to be here in the morning."' While in Omaha, as mentioned earlier, the two brothers visited the Union's office, signed authorization cards and received a supply of such cards for distribu- tion among their fellow employees at the plant. The Schlickers returned to Falls City that afternoon and later, during the course of the evening, in a solici- tation campaign which they initiated immediately, secured signed authorization cards from 16 of their coworkers. The following morning when John Schlicker reported for work he met Gililand and two fellow employees in the egg candling room. Schlicker asked the three if they cared to sign union authorization cards. One of the three answered in the affirmative and signed a card. Gililand and the other employee declined.° Shortly thereafter Schlicker left on his truck route and did not return to the plant until evening. Later that morning William Schlicker also met Gililand. He, too, showed Gililand a union card and asked him to join the Teamsters. Gililand looked at the card, commented, "trying to get a union started, eh?" and declined to sign, adding "I got nothing against the union, but don't believe it can help inc any . . . I don't believe I want to stick my neck out."" At about 4 p. in. that day Kelly, the plant superintendent, came up to William Schlicker, asked "What have you done now?" then handed Schlicker his check, explaining 9 The above finding is based on the credited testimony of William Schlicker. Chewer, in recalling the conversation, stated that he had referred Schlicker to Kelly, because as truck foreman he had no authority over him. On cross-examination, however, Chever conceded that Schlicker had been under his immediate supervision as a relief truck driver on at least two occasions in the week preceding Schlicker's discharge. 10 This finding is based on the credited testimony of John Schlicker. Gililand testified that he could not remember such a conversation. " These findings are based on the credited testimony of William Schlicker. Gililand conceded that Schlicker had asked him to sign a card. FALLS CITY CREAMERY COMPANY 699 as he did so that he had been told to "bring this out ... give it to you and tell you your services are no longer needed and for me not to ask any questions one way or the other."' Schlicker received no explanation for his discharge either then or later" John Schlicker returned from his route shortly after 7 p. in. Chever met him as he stepped out of the truck, handed him his check and said "Well, I guess your services are no longer required, won't need you any more." The employee protested that he would prefer to wait until the end of the month and get a full check but Chever answered "I'm afraid there isn't going to be any." z< Schlicker was given no reason for his discharge 1` He credibly testified that prior to this time he had had no complaints about his work from Chever or from anyone else. 2. Analysis of the testimony During the first 3 weeks of April the Respondent effected some major remod- eling and renovation work at its creamery. This was completed on about April 20. The Respondent's witnesses testified that the final decision to discharge the Schlicker brothers was made by the president, Charles James, on that day. According to the latter he reached this conclusion after a conference with Chever, Hoel, and his son, Robert James, the last named being vice president and general manager of the Company. The plant president stated that at this meeting he told those present that he wanted to discuss the matter of which employees had helped with the construction work and which employees had not. Charles James testified that the three supervisors then told him of various cases of insubordination involving John Schlicker 1° At the hearing James recalled that his supervisors cited instances where Schlicker had stayed too long at the Respondent's buying station in Emporia, Kansas, an occasion when Schlicker had been negligent about delivering a load of eggs to a customer in Topeka, Kansas, and another where he had been insubordinate at the Respondent's buying station in Falls City. James gave no testimony about having received any adverse reports on William Schlicker at this meeting. He stated, however, that he decided upon the immediate discharge of the two brothers because he was "tired of getting reports and insubordination out of either one of them." When asked why he decided upon their simultaneous dismissal, James explained "I didn't think it would do to fire one and not fire them both." He further stated that no other employees were discussed at this conference, and that no other business was considered. The plant president denied that he had any knowledge of the union activities of the two employees at that time. At the hearing the Respondent attributed William Schlicker' s discharge to his "lackadaisical attitude." Robert James testified that about a week before April 20 he informed his father of a growing concern about this aspect of Schlicker's character. On the witness stand he ascribed his dissatisfaction largely to Schlicker's reluctance to volunteer for overtime work on the renovation and 13 Schlicker's testimony as to this conversation was uncontradicted. 13 Before Kelly turned to leave, Schlicker showed him an authorization card and sug- gested that that was the reason for his discharge. Kelly looked at the card for a moment but had no comment other than to ask whether Schlicker was attempting to organize a union. 14 According to Schlicker, at this point he remarked that the Union would put him back to work, whereupon Chever observed "I'm not going to doubt your word about it. You know what the union done to Watson Brothers in Omaha fifteen years ago. . . . I didn't even know what was going on until I talked to Berthal Kelly." 15 Schlicker's testimony as to this conversation with Chever was not contradicted. 1e James testified that some months prior to this meeting Chever had told him "in a casual way that he was having trouble with John obeying his instructions." 7 00 DECISIONS OF NATIONAL LABOR RELATIONS BOARD construction project. According to James, Jr., one day in mid-April he asked Schlicker to work with the construction crew that night and the latter told him that he would be unable to do so since be planned to paint his car that evening. James stated that later in the week he observed that Schlicker's car had not been painted. He conceded, however, that he did not speak to Schlicker about the incident again. Charles James, Sr., testified that he visited the plant late one night while the construction work was in progress and noticed that a number of employees, including William Schlicker, were not there. According to James, Sr., he asked George Griffith, the plant engineer, why Schlicker was not among those present and was told that the latter would not work nights. James added, "I kind of stacked that away in my thoughts." Griffith, on the other hand, testified that although early in April he had asked Schlicker to work nights on two or more occasions and Schlicker had told him that he preferred not to do so he could not recall having reported this matter to anyone. Schlicker credibly testified that during the initial phases of the construction project he had, in fact, worked several nights and that after his conversation with Robert James, referred to above, he was never asked to work at night on any other occasion. In January 1951, the brothers had begun an auto salvage business in William Schlicker's backyard at which they worked in the evening and on week ends. Robert James testified that about a month before their discharge, he had a meeting with the Schlickers in which he discussed their participation in this off-duty enterprise. According to James, after this meeting he told his father that the attitude of the two brothers was becoming "unbearable." The testi- mony of the parties, however, hardly supports this conclusion. According to William Schlicker, at this meeting Robert James told them that he wanted to know the extent to which they were getting into the junk business, that if they were planning to devote their full time to it he would prefer 30 days' notice to enable him to replace them, and that he further told them "I don't want you just to up and quit without any notice. You know you are both essential. We just absolutely cannot replace you over night." Although James' recollection of this meeting differed somewhat from Schlicker's, there was no material conflict between the testimony of these two witnesses. James could not recall having told the brothers that they were essential, and he denied asking that they give 30 days' notice before quitting. On the other hand, he testified that he did tell them that he had no objection to their outside activity as long as it did not inter- fere with work at the creamery, but that in the event it ever did they would have to quit work for the Company, meanwhile "allowing us enough time to replace them in their jobs." Chever testified that at the conference with Charles James on the afternoon of April 20 he asked permission to fire John Schlicker for being "generally dis- satisfactory." It was Chever's testimony that Schlicker frequently charged the Company with an excessive amount of overtime upon completing a trip, that he failed to follow instructions by not taking layovers 14 while on his truck route, that he often stayed too long at the Respondent's station in Emporia , Kansas, and that on one occasion about 10 days before his discharge Schlicker had been late in departing from the creamery with a load of eggs. In support of Chever's assertion that Schlicker charged the Company for an excessive amount of overtime, Robert James testified that the matter had reached the point where the Respondent was losing money on Schlicker' s truck route. In fact, however, on April 1, all the regular truck drivers were put on a salary Ill. e., Rest periods such as are required of truck drivers while en route by the regula. tions of the Interstate Commerce Commission. FALLS CITY CREAMERY COMPANY 701 basis. Chever conceded that any overtime worked by the drivers after that date had no effect on their pay. Consequently, Schlicker's overtime in the period from April 1 to the date of his discharge could have been no financial problem for the Company ." Moreover, at the hearing the Respondent did not point to any substantial change in Schlicker's practice with respect to either overtime or layovers which had provoked any concern on the part of his super- visors in the period immediately prior to his discharge . The Respondent was well aware of the practices which its drivers followed with respect to those matters. At the end of each trip the Company required the driver to submit a report which included such details as starting time, stops, layovers, overtime, and related information 1B Chever conceded that he had regularly received such reports from John Schlicker throughout the latter 's employment. A review of these trip tickets shows no material differences as to the number of hours which he charged to overtime and layovers throughout the first 5 months of his em- ployment with the Respondent and his practice in that regard during the last month before his discharge. From the record it is apparent that the Respondent manifested little con- cern over the matter of whether its drivers took layovers on their trips until sometime in March when the Respondent concluded that certain regulations of the Interstate Commerce Commission were applicable to its truck operations. On about April 1 , in conformity with these regulations , it issued log forms and rule books to its drivers . At the hearing the Respondent offered in evidence all of John Schlicker's logs from April 1 to the date of his dismissal. Some of these did not reflect an 8-hour layover en route, as required by the Federal regu- lations covering motor carriers. However, there was nothing in the testimony adduced by the Respondent to prove that Schlicker 's logs were any different from those filed by any of its other drivers." Chever conceded that he had not even examined Schlicker 's logs prior to the hearing and, further , that the logs of the other drivers had never been checked. Most of Schlicker's trip tickets reflected a stop at the Respondent 's Emporia station of from 2 to 4 hours . Schlicker testified that shortly after he went to work for the Respondent one of his supervisors instructed him to remain at the Emporia station , whenever he arrived there, until it closed at 6 p. m.," and that no one else ever gave him any further orders 2S The Respondent offered no per- suasive testimony that Schlicker was ever told to do otherwise or that he had ever been reprimanded for staying too long at this station." After Schlicker's 18 At the hearing, Robert James conceded that the same route is still maintained by the Company and that its present driver is paid the monthly salary that Schlicker was receiving at the time of his discharge. "Referred to in the record as a trip or truck report , as distinguished from the "log" which , pursuant to regulations of the Interstate Commerce Commission , the Respondent required its drivers to keep after April 1. 20 In April 1951 , the Respondent had seven full -time drivers. 21 According to Schlicker this was either Chever or the territory manager , Park Needham. Chever denied that he had ever issued such instructions, but he conceded that such instruc- tions might have been issued by someone else. The Respondent did not call Needham as a witness. 22 M. C. Hill, manager of the Emporia station, testified that late in March 1951, he complained to Needham that the truck drivers were wasting time at his station and that on this occasion he specifically mentioned Schlicker . Hill could not recall what Need- ham said with respect to this report. As noted above, Needham was never called as a witness. 2s Chever asserted that throughout the entire period of Schlicker's employment he had complained to Schlicker as well as to company officials about the length of time Sehlicker spent on his route and the number of hours he remained in Emporia. Chever could recall no specific occasion when he had reprimanded the employee , however, and his testimony in this connection was extremely vague and inconclusive. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge his route was assigned to Charles Rowland, one of the other drivers. Rather significantly, the record discloses that in the months thereafter , Rowland frequently spent from 3 to 4 hours at the Emporia station and often remained there until 6 p. m. Moreover, for many months after being assigned Schlicker's route, Rowland had no better record for taking layovers than Schlicker. On April 10, according to Chever, Schlicker was late , through negligence, in departing for Topeka , Kansas, with a load of eggs for a customer there . Chever explained at the hearing that he said very little to Schlicker about the incident because he had learned that reprimands were futile." Both Robert James and Chever testified that on about April 11, James called John Schlicker to his office for a meeting at which Chever was present." There, James told Schlicker that he understood the latter had made some derogatory remarks about the Company" and asked for an explanation . Schlicker con- ceded to James that he had made some of the comments attributed to him but denied having made others . After Schlicker left, Chever asked that he be dis- charged. James, however, according to his own testimony, suggested that Chever was being too impetuous and told him to give the employee another "chance." Insofar as the record indicates , the Respondent does not allege that Schlicker engaged in any specific derelictions between the date of this meeting and the day he was discharged.34 3. Conclusions On the evening of April 19 the Schlicker brothers initiated their organiza- tional efforts on behalf of the Teamsters . The following afternoon President James called in several supervisors for a short conference to review the Schlickers' work record and promptly concluded that both should be discharged immediately. Although Charles James denied that he had any knowledge of the " The General Counsel asked Schlicker no questions regarding this incident. 'a The record is not clear as to the date of this meeting . James testified that it was about 2 weeks before Schlicker's discharge. Chever testified that it could have been anywhere from April 3 to April 11. Counsel for the Respondent suggested that it was held on April 10 or 11. " Chever testified that these included statements to the effect that the Respondent was not treating Schlicker fairly and that it was trying to starve him to death. 27 At the hearing, Robert James referred to Superintendent Hoel as one who had com- plained about Schlicker . He was unable, however, to recall any of Hoel 's complaints. Later, the Respondent called Hoel as a witness but asked him no questions about John Schlicker. James also testified that Latham Camblin , the manager of the Company's buying station in Falls City, had once reported an occasion when John Schlicker had refused to work. Camblin testified that this incident happened the "last of March ." Camblin's testimony was considerably different from that of James , however, and hardly bore out any charge of insubordination . According to Camblin, a number of employees from the main plant were at his station this particular day to assist in some renovation work. Among the group were several truck drivers, including Schlicker . At one point during the day, when one Lud Reschke (whom Camblin described as one of the truck drivers- not a foreman ) asked three of the other drivers to help him operate a cement mixer they refused and went instead to a nearby lunchroom for coffee . According to Camblin, the three involved were Schlicker, Charles Rowland , and one other. In reporting the incident to James, Camblin testified that he did not single out Schlicker but "talked of the group [of three] as a whole." In determining whether the Respondent was in fact concerned about this incident, I have considered it significant that ( 1) Robert James testified that he never mentioned it to Schlicker because he "didn't think it was necessary"; (2) Charles James testified that his son never told him about the matter until about "two minutes before" he ordered the discharge of Schlicker ; and (3 ) subsequent to Schlicker's discharge, Rowland, one of the three involved , was retained and assigned to Schlicker's truck route. FALLS CITY CREAMERY COMPANY 703 union activities of the Schlicker brothers at the time of their discharge, his denial was not convincing to the Examiner. Foreman Gililand conceded that at least one of the brothers had solicited him to join the Teamsters on the morning of April 20 and the undersigned is satisfied that Gililand, despite his denial, shortly thereafter brought this matter to the attention of the management. Moreover, in view of the fact that the Respondent's plant is not large and is lo- cated in a small community,' it may be inferred that the Employer had knowl- edge, under the circumstances present here, of the employees' union activity, as the Board and the courts have held in similar cases. Stokely Foods, 91 NLRB 1267, 1270-1271, enforced 193 F. 2d 736 (C. A. 5) ; Jasper National Mattress Com- pany, 89 NLRB 75, 77; N. L. R. B. v. Angwell Curtain Co., 192 F. 2d 899 (C. A. 7) ; N. L. R. B. v. Abbott Worsted Mills, 127 F. 2d 438,440 (C. A. 1) ; and N. L. R. B. v. Entwistle Mfg. Co., 120 F. 2d 532, 535 (C. A. 4). Upon the foregoing, it is my conclusion that prior to the time it discharged the Schlickers the Respondent was apprised of the organizational efforts which they had initiated at the plant. I so find. At the time of his discharge William Schlicker had been an employee of the Respondent for 7 years and throughout that period had a very satisfactory work record. Only once had he received even a minor reprimand and that had been almost 4 years before. Despite this background, within less than 24 hours after he began the solicitation of his coworkers on behalf of the Union, he was abruptly discharged in the middle of his shift. No explanation was afforded for his dismissal and the plant supervisor who handed him his check was enjoined "not to ask any questions one way or the other." At the hearing the Respondent, with very little particularization, attributed its action to Schlicker's "attitude." And Charles James explained that he decided that both William Schlicker and his brother should be discharged the same day because he "didn't think it would do to fire one and not fire them both." 28 The work record of John Schlicker was not as impressive as that of his brother. He was an employee of only a few months' standing and it is clear that his day-to-day performance at times left something to be desired. On about April 11 Chever asked that he be discharged but Robert James considered such action too precipitate and suggested instead that the employee be given another "chance." Although at the hearing the Respondent offered a consider- able amount of testimony about an accumulation of complaints against Schlicker which arose prior to April 11, no evidence was submitted to prove that between the date of this meeting and April 20 some new incidents arose which compelled the Respondent to reconsider affording him that other "chance" which its vice president and general manager had proposed earlier in the month. Instead, on April 20, both John and his brother were dismissed, abruptly and without warn- ing or reprimand, with no explanation being offered to them for such action either then or later. It is indeed true, as the Respondent urges in its brief, that the fact an employee is engaged in union activity at the time of his discharge is not per se substantial 2E Falls City has a population of approximately 6,500. 29 At one point during the hearing it appeared that the Respondent would attribute William Schlicker' s dismissal to a technological development. Thus, Robert James testified at some length to the effect that in April 1951 the Respondent purchased and installed an electronic knife for killing poultry which obviated the need for an employee with William Schlicker's particular skill. In its brief the Respondent urges that because of this fact, at the time of Schlicker's discharge there was no further need for his services. The issue thus raised, however, was disposed of by Charles James himself who, when testifying subse- quent to his son's appearance on the witness stand, stated that the adoption of this equip- ment had no connection with Schlicker' s discharge. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence of discrimination. If that were all this record presented the under- signed would, of course, recommend that the complaint be dismissed. That, how- ever, is not the situation in this case. Upon the facts set forth above, the under- signed is convinced that the decision to discharge the Schlicker brothers was not made until Charles James learned that they were actively promoting the Teamsters' Union. In view of: (1) the precipitate manner in which their dis- charges were effected; (2) the lapse of less than a day between the time they began the solicitation of their fellow employees and the hour they were dis- missed ; (3) the failure of the Respondent at the moment of their discharge to offer the Schlickers any explanation for its action ; (4) the unconvincing nature of the reasons which the Company subsequently offered for this action ; and (5) the Respondent's knowledge of their union efforts, the undersigned concludes and finds that the real motivation for the summary dismissals was their par- ticipation in concerted activities, and a desire to thwart the organizational move- ment in its formative stages. N. L. R. B. v. Link Belt Co., 311 U. S. 584, 589- 590; N. L. R. B. v. Fisher Governor Company, 163 F. 2d 913, 914-915 (C. A. 8) ; N. L. R. B. v. Glenn L. Martin-Nebraska Co., 141 F. 2d 371, 374 (C. A. 8) ; N. L. R. B. v. Lund, 103 F. 2d 815, 819 (C. A. 8). By this conduct the Re- spondent discriminated with regard to the Schlickers' hire and tenure of employ- ment in order to discourage membership in a labor organization and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by 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 connection with the operations of the Respondent as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY As it has been found that the Respondent has engaged in and is engaging in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Further, since it has been found that the Respondent has discriminated in regard to the hire and tenure of employment of John Arthur Schlicker and William Ardell Schlicker, it will be recommended that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions," and make them whole for any loss of pay they may have suffered by reason of the Respondent's discrimination against them by payment to them of a sum of money equal to that which they normally would have earned as wages from the date of their discharge to the date of the Respondent's offer of reinstatement , less their net earnings during said period." Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which the Schlickers would normally have earned for each such quarter or portion thereof, their net ° The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 11 Crossett Lumber Company, 8 NLRB 440. FALLS CITY CREAMERY COMPANY 705 earnings, if any, from any other employment during that period. Earnings in one particular quarter shall have no effect upon the back pay for any other quarter." It will also be recommended that the Respondent, upon reasonable request, make available to the Board and its agents all payroll and other records pertinent to an analysis of the amount due as back pay. Since a discriminatory discharge "goes to the very heart of the Act" (N. L. R. B. v. Entwistle Mfg. Co., 120 F. 2d 536 (C. A. 4) ), the undersigned will recommend that the Respondent be ordered to cease and desist from in any manner infring- ing upon the rights of employees as guaranteed by Section 7 of the Act. See May Department Stores v. N. L. R. B., 326 U. S. 376, 386-392. Upon the basis of the foregoing findings of fact and upon the entire record in this case, the undersigned makes the following : CONCLUSIONS Or LAW 1. The Union is a labor organization admitting to membership employees of the Respondent. 2. By discriminating in regard to the hire and tenure of employment of John Arthur Schlicker and William Ardell Schlicker, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By such discrimination and by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging 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 commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, General Drivers and Helpers, Local Union No. 554, AFL, or in any other labor organi- zation of our employees, by discriminating in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT engage, directly or indirectly, in the surveillance of union meetings, or in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activi- ties, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER John Arthur Schlicker and William Ardell Schlicker im- mediate and full reinstatement to their former or substantially equivalent " F. W. Woolworth Company, 90 NLRB 289, 291-294. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimi- nation against them. All our employees are free to become, remain, or refrain from becoming or remaining members of the above-named union or any other labor organization except to the extent that this right may be affected by an agreement in con- formity with Section 8 ( a) (3) of the Act. We will not discriminate against any employee because of membership in or activity on behalf of any such labor organization. FALLS CITY CREAMERY 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. TRIMFIT OF CALIFORNIA , INC. and AMERICAN FEDERATION OF HOSIERY WORKERS, AFL. Case No. 21-CA-1060. December 2,1952 Decision and Order On February 20, 1952, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged and was engaging in unfair labor prac- tices, and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Respon- dent's request for oral argument is denied as the record, exceptions, and brief, in our opinion, adequately present the issues and the posi- tions of the parties. The Board 1 has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following modifications : 2 1. The Respondent excepts to the Trial Examiner's finding that the Respondent locked out all its employees on January 22, 1951, in 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Murdock and Peterson]. 2 On page 714 of the Intermediate Report the Trial Examiner inadvertently states that the union meeting was scheduled for January 22, 1951, and not , as the record shows , for Janu- ary 21 . We hereby correct this error , which in no way affects the Trial Examiner's ultimate conclusions. 101 NLRB No. 137.