Stone Baking Co.

In the Matter of COLUMBIA BAKING COMPANY D/B/A STONE BAKING COMPANY and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 Case No. C-P2640.-Decided July 20, 1943 DECISION AND ORDER. On June 11, 1943, the Trial Examiner issued his Intermediate Re- port 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 af- firmative action as set out in the copy of. the Intermediate Report attached hereto. Thereafter the respondent filed exceptions to the Intermediate Report. No request for oral argument before the Board was made by any of the parties. The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the respondents exceptions, and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner with the excep- tions and qualifications noted below : 1. The Trial Examiner found, and we agree, that N. O. Smith, George W. Childs, Jr., and S. C. Hays were supervisory employees. The respondent disputes this finding and urges in its brief before the Trial Examiner and in its exceptions, that these individuals, contrary to the findings of the Trial Examiner, had no authority to recommend the hire or discharge of employees. While it is clear `that Smith, Childs, and Hays had the power to recommend discharges, we find no testimony to support the finding that they had the power to recom- mend, or did, in fact, recommend the hire of employees. However, in view of the other factors tending to establish their supervisory status, we have found it unnecessary to rely upon the finding of the Trial Examiner that Smith, Childs, and Hays had authority to recommend the hire of employees. 51 N. L. R. B., No. 91. 485 486 DECISrONS OF NATIONAL LABOR REILA'TIONS BOARD ORDER Upon the entire record in the'case, and pursuant to Section 10 (c), of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Columbia Baking Company, doing business as Stone Baking Company, Atlanta, Georgia, its offi- cers, agents, successors-and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Truck Drivers and Helpers Local Union No. 728, or any other labor organiza- tion of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment or any other term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to. form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining, or other mutual- aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Densal Grover McGinnis immediate and full reinstate- ment to his former or substantially equivalent position without prej- udice to his seniority or other rights and privileges; (b) Make whole the said Densal Grover McGinnis for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to that which- he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earn-- ings during said period ; (c) Make whole Luther Clayton Sargent for any loss of pay he, may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to that which he nor- mally would have earned as wages from the date of his discharge to the date upon which he started working steadily in the employment in which he was engaged at the time of the hearing, less his net earnings during said period; (d) Post immediately in conspicuous places in its place of business in Atlanta, Georgia, and maintain for a period of at least sixty (60) consecutive days from the date of posting notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b)• of this Order; (2) that the respondent will take the affirmative action, COLUMBIA BAKING COMPANY 487 set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that the respondent's employees are free to become or remain members of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Truck Drivers and Helpers Local Union No. 728, or any other labor organization, and that the respondent will not discriminate against any employee because of membership or activity in that 'or' any other labor organization; (e) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the receipt of this Order what steps the re- spondent has taken to comply herewith. INTERMEDIATE REPORT Mr. Mortvneer H. Freeman and Mr Paul S. Kuelthau, for the Board. Mr. Alexander E. Wilson, Jr., of Atlanta, Ga., for the respondent. STATEMENT OF THE CASE Upon an amended charge duly filed on April 9, 1943, by International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Truck Drivers and Helpers Local Union No. 728, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated April 9, 1943, against Columbia Baking Company, doing business as Stone Baking Company, herein called the respondent, alleging that the respondent had engaged in and was ' engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accom- panied by notice of hearing thereon, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged, in substance, that the respondent: (1) since September 1, 1942, interfered with, restrained, and coerced its employees by (a) persuading, threatening, and warning its employees to refrain from assisting or becoming or remaining members of the Union, (b) threatening to discontinue its local bread and cake routes because of the participation of its drivers in the Union, and (c) interrogating its employees concerning their concerted activities ; and (2) on November 7, 1942, discharged and thereafter refused to reinstate Luther Clayton Sargent and Densal Grover McGinnis because of membership in and assistance to the Union and because of their concerted activities with other employees for their mutual aid and protection. In its amended answer dated April 21, 1942,' the respondent admitted the allegations of the complaint as to the nature of its business but denied that it had engaged in any unfair labor practice. Pursuant to notice, a hearing was held from April 22 through April 24, and on May 6, 1943, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and participated in the hearing. All parties were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the close of the hearing the respondent 1 The answer originally filed and the amended answer are identical except that the latter includes a ''erificEftion. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' made several motions to dismiss and to strike.2 All of them, except a motion to dismiss as to Sargent, who does not desire reinstatement, were denied over the objection of the respondent. The undersigned reserved his ruling on the motion relating to Sargent, and he now denies that motion. Motions to con- form the complaint and the answer to the proof as to dates, spellings, and similar formal matters were granted without objection. The parties, upon re- quest of the undersigned, argued orally before him. They were also given an opportunity to file briefs with him and one was filed by the respondent. Upon the record thus made and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a Delaware corporation, licensed to do business in the State of Georgia. It has its principal office and place of business at Atlanta, Georgia. It is engaged in the manufacture, sale, and distribution of bread, cake, and related products. During 1942, in the conduct of the business at its Atlanta plant, the respondent purchased materials in excess of $500,000. Over 80 percent of these materials came from States other than the State of Georgia. During 1942, the respondent distributed outside the State of Georgia over $50,000 worth of products manufactured at its Atlanta plant. These figures are substantially representative of the respondent's operations at its Atlanta plant thus far in 1943. For the purposes of this proceeding the respondent admits that it is en- gaged in interstate commerce at its Atlanta plant within the meaning of the Act. II. THE ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Truck Drivers and Helpers Local Union No. 728, is a labor organization within the meaning of the Act, and admits to membership em- ployees of the respondent at its Atlanta, Georgia, plant. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In August 1942, the respondent's route salesmen, under the leadership of two of their number, Luther Clayton Sargent and Densel Grover McGinnis, held a meeting for the purpose of taking concerted action to obtain a wage increase' At this meeting the salesmen elected a committee of which Sargent was chairman and McGinnis was a member. Shortly after the meeting, the committee con- ferred with J. W. Swearingen, the respondent's assistant plant manager, and 2 The respondent moved to dismiss the entire complaint for lack of any evidence to support it; to dismiss the complaint as to Sargent and to strike all of the testimony relat- ing to that portion of the complaint for the reason that he does not desire reinstatement ; to strike fiom the complaint the names of two employees alleged to have engaged in unfair labor practices, and to stoke from the record the statements allegedly made by those two employees on the ground that they are not management representatives ; to dis- miss the entire complaint and strike the entire record on the ground that the respondent is prejudiced by the Board's attorney's description in the record of certain rejected exhibits and by the fact that the rejected exhibits were forwarded to the Board together with the record. g Though there is some testimony that this meeting was held on September 4, 1942, the respondent's undisputed records show that the Increase in salary which resulted from the activities of the committee was effective as of August 24, hence the meeting must have been held in August, and the undersigned so finds. COLUMBIA BAKING COMPANY 489 requested a wage increase . Swearingen asked the committee whether a union had anything to do with "the meeting" and was told it had not . Swearingen then referred the committee to Ralph Ward, the respondent's manager at its Atlanta plant and assistant to its president , and told the committee that he knew how Ward felt about unions and that he believed Ward would give the question of a raise a great deal more consideration than he otherwise would have given it because no union was behind it.4 Shortly thereafter the committee pre- sented its request for an increase in salary to Ward. A few days later Ward called a meeting of the salesmen , announced a raise, told them that he appre- ciated the fact that they had had no "outside help", and said that if any trouble arose later he thought that they could see him and settle it without such assist- ance.` The day after `Ward informed the salesmen that they were to receive an in- crease in salary, N. 0. Smith, one Af the supervisors of the respondent's, sales- men,' told Sargent that Ward could not be driven to do anything and that sooner or later he would "check" the men out one by one.' Soon after the meetings of the committee with Swearingen and. Ward, Su- pervisor Childs warned McGinnis to watch his step around the loading plat- form and told him that about 4 years previously a group of employees held a meeting similar to the one at which the committee had been elected , and that only 2 of the 18 salesmen active in that affair were still employed by the re- spondent. Some of them , he said, had been discharged for little or no reason and some had left because it had gotten so hot for them". He also told Mc- 4 Though Swearingen denied that he made this inquiry of and statement to the commit- tee, the undersigned credits McGinnis and Sargent upon whose testimony the findings in relation thereto are based McGinnis was an unusually frank and honest witness and the undersigned was especially impressed with his credibility. Sargent's demeanor on the witness stand was also that of an honest witness. The testimony of both McGinnis and Sargent was free from internal conflicts. On the other hand, Swearingen admitted that, wilh respect to one matter, he was "confused" Ile also gave self-contradictory testimony as to the date on which it was finally determined to discharge Sargent and as to whether he had ever warned Sargent that he would be discharged unless his work improved. The, undersigned, from the obseivation of Swearingen on the witness stand and upon considera- tion of all his testimony, finds that Swearingen was not a credible witness. s The above findings with respect to Ward's statements at the time be announced the salary increase are based on the credible and undisputed testimony not only of Sargent and McGinnis, but also of J R Reid, and J P. Ogletree, two other salesmen who were present when Ward announced the increase Although Ward testified concerning the remarks he made on that occasion, he did not deny making the statements above which the Board's witnesses attribute to him ° Smith and George W Childs, Jr, and S. C Hays, who are mentioned hereafter, were, at all times involved herein, called supeivisois by the respondent Each had from 6 to 10 route salesmen under him They could not employ or discharge men, but they could recommend employment and discharge. They rode with salesmen, adjusted complaints, inspected their work, and assisted and advised them concerning their duties They also gave the salesmen orders as to the manner of handling the routes and disciplined them. They attended conferences at which the salesmen were not present and at which matters relating to the respondent' s business, including those dealing with company policies, were discussed At times their duties were entirely supervisory. The salesmen sometimes went to them first with problems concerning their n ork They were paid straight salaries, whereas the salesmen, after they had served their apprenticeships, were paid small salaries and commissions. The undersigned finds that Smith, Childs, and Hays were, at the times mentioned herein, supervisors and represented management 7 Although Smith denied that he made this statement, the undersigned credits Sargent on whose testimony this finding is based. Smith's testimony on direct examination was an almost unbroken succession of denials of statements and conduct attributed to him by credible witnesses for the Board including Sargent and McGinnis. The undersigned finds that Smith was not a credible witness. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ginnis that Ward was watching everyone on the committee and that "sooner or later, for any reason, he would probably fire every one of them."' Toward the middle of October, the committee which had obtained the salary increase undertook to investigate the justness of the discharge of one of the route salesmen. At about the same time , Sargent and McGinnis began organizing for the Union and talked to some of the salesmen about the Union. During the last part of October or the first week in November, McGinnis, with the assistance of Sargent and Reid, obtained a list of the names and addresses of route sales- men who they thought might be interested in joining the Union. McGinnis went to the Union's headquarters and typed the list on the Union's stationery. McGinnis and Sargent talked with nearly all of the men on the list. McGin- nis asked some of them what their attitude toward the Union was and Sargent went so far as to solicit membership in the union. About November 3, Childs began riding McGinnis's route with him. He told McGinnis that there was "something fishy about it all" since he had first been told to ride with someone else.° Childs warned McGinnis to stop his talk- ing around the platform, for if he did not he would certainly be discharged. When McGinnis asked him what he meant, Childs replied, "Mac, you know about this union talk." On November 7, Childs asked McGinnis if the employees were trying "to organize the union." McGinnis replied, "probably so and if nothing happens we will have one in the next couple of weeks." Childs then inquired if McGinnis was the one who was "getting it up." To this McGinnis answered that he was one of them. Childs then asked who the others were 10 On November 6, Harold Emerson Awtry, a route salesman, was accompanied on his route by Supervisor Smith. During this trip Smith asked Awtry the names of the employees who were engaged in union activity on the respondent's loading platform. Smith told Awtry that he hoped that he was "not mixed up with any of the chatter or talk that is going around." After Smith and Awtry had covered Awtry's route and returned to the plant, Awtry went to Ward's office and, in effect, apologized for his part in the activity to get a salary increase and assured Ward that he "was not mixed up in anything that was taking place around the bakery," that he "was fully for the bakery and appreciated the things" that Ward had done for him and that he would try to "stick with" Ward in every thing he did Ward inquired of Awtry concerning the talk and activities on the platform and asked who were involved in them. Awtry told him that some salesmen were talking about the Union but he refused to .divulge their names. Ward told Awtry that he was not going to be forced into doing anything and that he would not tolerate a union at the plant. He also told Awtry that he would immediately discharge anyone who tried to unionize 8 Though Childs denied that he made these statements , the undersigned credits McGinnis on whose testimony these findings are based and who has been found to be a trustworthy witness On the other hand , Child ' s testimony was sometimes evasive . For instance, H hen Childs was asked whether certain bread had not gotten mouldy because an ingredient had been omitted, he replied , "I don't know about that. It was , maybe, weather conditions at the time " At other times his testimony was inconsistent For example , he testified that bread left by McGinnis with a customer had been pushed back on racks and covered with bread of competitors . He first testified that he would not say that McGinnis caused this condition or knew of it, and then he claimed that it was the fault of McGinnis "because it shcuid have been fixed up when it was found". 9 Childs denied that lie told McGinnis this and testified that he had been originally told to ride with McGinnis For reasons already stated , the undersigned credits McGinnis who testified to this statement by Childs See footnote 4, supra 10 There is no evidence as to McGinnis' reply. Although Childs denied this testimony the undersigned credits McGinnis. COLUMBIA BAKING COMPANY 491 the plant. He added that rather than sign a union contract he would discharge every city driver at the Atlanta plant, and do away with the city routes. He also asked Awtry if he was going to join the Union and told him that he hoped he would not 11 It has been found that the respondent, through Plant Manager Ward, Assistant Plant Manager Swearingen, and Supervisors Smith and Childs inquired of its salesmen whether the Union had anything to do with their requesting a raise, warned them of the opposition of the respondent to the Union, suggested that they deal directly with the respondent concerning working conditions, inquired of them concerning their union activities, expressed to one of them the hope that he would not join the Union, warned them of the possibility of dis- charge if they engaged in union activity, threatened the immediate 'discharge of anyone of them who should attempt to organize the respondent's plant, and asserted that it would discharge every city driver at the Atlanta plants and do away with the city routes rather than sign a union contract. It is further found that by these inquiries and statements the respondent has interfered with, restrained, and coerced itS employees in the exercise of the rights guar- anteed in Section 7 of the Act. - B. The discriminatory discharges of Sargent and McGinnis Prior to their discharges, Sargent had worked for the respondent over 4 years and McGinnis had worked for the respondent more than 8 months. In August 1942, as noted above, Sargent and McGinnis were the leaders in the salesmen's concerted efforts to obtain a salary increase. They called the sales- men's meeting at which the bargaining committee which negotiated the increase was chosen. Sargent was the chairman and McGinnis was a member of this committee. Sometime later the committee investigated the justness of the dis- charge of one of the respondent's salesmen. By the middle of October Sargent had begun organizing for the Union and soon thereafter McGinnis joined him in that work. About November 1, they obtained a list of names of the route salesmen and spoke to nearly all of them about joining the Union. On November 4, McGinnis joined the Union. Between that time and November 7 he showed union literature to several of the salesmen. On November 6, Sargent and McGinnis told the salesmen that there was a meeting scheduled for November 9 for the purpose of voting on whether the salesmen wished to join the Union. On November 7, Sargent and McGinnis, the only outstanding organizers of the Union, were discharged. The November meeting was not held and the union activities ceased. The respondent claims that it had no knowledge of the union activity of Sargent and McGinnis. , This claim is not supported by the evidence. Ward and Swearingen knew that Sargent and McGinnis were active in obtaining the salary increase in August. At that time they both attended the conferences of the bargaining committee with Ward and Swearingen , and Sargent told Ward that he was a chairman of the committee. Supervisors Smith and Childs were aware of the discussion concerning the Union that was taking place on the platform. "Though Smith and Ward denied that they made these statements , the undersigned credits McGinnis and Awtry on whose testimony these findings are based . It has been found that McGinnis was a particularly credible witness and that Smith was not a reliable witness. Awtry was subpenaed by the Board and.was a hostile, reluctant, evasive witness on direct examination . In view of his pledge of loyalty to Ward when he talked with the latter on November 6 and of the nature of his testimony the undersigned finds that Awtry's testimony adverse to the respondent was reluctantly given solely for honesty's sake and must be accepted as true Ward was an evasive witness and at times his memory was poor. The undersigned finds that Ward was not a credible witness. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Soon after the meeting of the salesmen's committee with Ward, Childs told McGinnis that Ward was watching everyone on the committee. On November 3 and 7 Childs spoke to McGinnis concerning his union activity and on the latter date McGinnis told Childs that he was helping to organize the Union. On November 5, McGinnis, before he went to the cashier's window at the respondent's, plant, accidentally left on a table his list of salesmen written on the Union's stationery. When he returned to the table Supervisor Smith. was looking at the list. McGinnis picked it up, in Smith's presence, and put it in his pocket" On November 6, Smith questioned Awtry about the salesmen's union activity. On the same day, Awtry told Ward about the employees' discussion concerning the Union. When Virgil N. Sigman, the respondent's sales manager, discharged -McGinnis, the latter asked Sigman if he was not discharging him because of union activities. Sigman replied that they knew something about that and that they would find out more about it later." These facts demonstrate that Sargent and McGinnis were the leaders of the Union's activity at the respondent's plant, that the respondent knew of that fact, and that they were discharged at the height of that activity within a few days after Sargent and McGinnis had taken" the first concrete action toward organizing the Union The evidence further shows that the respondent had on several occasions stated its disapproval of labor organizations ands had given warnings that union activity would result in the loss of employment. Under such circumstances the allegations of the complaint as to Sargent and McGinnis must be sustained in the absence of a clear showing that their discharges were for cause. 1. The respondent's contentions concerning the discharge of Sargent The three specific reasons given by the respondent for the discharge of Sar- gent were that he was dissatisfied with his working conditions, that he was disrespectful to Swearingen, and that his "stales" '° were unreasonably high. Thus, the reason given by Swearingen to Sargent for his discharge was that Sargent appeared to be dissatisfied with his working conditions, while the reasons given by Swearingen on Sargent's employment record card for his dis- charge were "not satisfied and work not satisfactory " Ward finally testified that the reasons for Sargent's dismissal were that he had been disrespectful to Swearingen and that he had too many stales. An analysis of the evidence casts considerable doubt on the merits of the grounds given by the respondent for Sargent's discharge. Thus, when Sargent was told that has was being dismissed because of his dissatisfaction with his working conditions, he denied any such discontentment. Also of particular significance as indicating a lack of dissatisfaction on the part of Sargent, are the facts that Sargent's supervisor, Hays, testified that Sargent had never ex- pressed such unhappiness or dissatisfaction to him and that, when Swearingen "Though Smith denied any knowledge of this episode and testified that he had never seen any paper like the one containing this list of names, the undersigned credits McGinnis who testified to this occurrence See footnote 4, supra, in support of the reliance of the undersigned on the testimony of McGinnis See footnote 7. supra, concerning the veracity of Smith. la Though Sigman denied that he made this statement, the undersigned credits McGinnis who testified to this conversation. Sigman's testimony was self-contradictory in several respects For instance, he first testified that ' McGinnis ' sales went up for 2 weeks in October and then he testified that be had stated that McGinnis' sales went down during the first week or two of October 14 Stales were products which had not been sold by the customer and which were returned to the salesman . The stales referred to related to bread. No evidence was offered relat- ing to cake stales. COLUMBIA BAKING COMPANY 493 told Hays that he had discharged Sargent because of dissatisfaction , Hays told him that he thought Swearingen had gotten the wrong man. Although Swearingen testified to several episodes which he claimed amounted to disrespectfulness on the part of Sargent, Hays said that Sargent had never been disrespectful to him nor, to his knowledge, to anyone connected with the management of the respondent . Morever, Swearingen did not mention disre- spectfulness as a ground for Sargent's discharge either when he discharged Sargent or when he stated his reasons for Sargent's discharge on Sargent's employment record card. Further, Swearingen's very testimony creates dis- trust in the existence of some of the claimed disrespectful conduct. Thus, he admitted that he was confused and could not remember when Sargent made one of the alleged disrespectful statements. Another statement complained of by Swearingen was not made to him, though he asserted that it referred to him and Sigman. He could not recall who told him about this.16 Ward admitted that he ordered Sargent discharged, at least in part because of disrespectfulness to Swearingen, without knowing of what acts the disrespectfulness consisted and without attempting to enlighten himself on that point. Further, Swearin- gen conceded that Sargent's attitude toward him was without fault when he discharged Sargent and , when Sargent went to see Ward after his discharge, Ward told him that he had always found Sargent cooperative. Although Sargent's stales record during the last months that he worked for the respondent was higher than that of some other salesmen, it is highly significant that the stales record of a number of salesmen who are still em- ployed by the respondent were higher, during several weeks just preceding the discharge of Sargent, than was his stales record during the same period. This is shown in the schedule which appears below 19 Swearingen tried to explain the higher stales percentages of some of the drivers other than Sargent. Thus, he testified that Ellis' route was highly competitive. 15 Swearingen testified that Sargent told him that he thought the man out on a route ought to know better how to run it than someone sitting in his office, but he said he was confused and did not remember when this occurred Swearingen stated further that Sargent had told N. O. Smith that he was getting tired of having someone stick his nose into his (Sargent's) truck every time it backed in at the platform and that, when saying this, Sar- gent referred to Swearingen and Sigman Swearingen could not recall who told him about this . He said also that Sargent told him that if the respondent took certain stores off his route he could get enough cake for other customers and that the cakes were not being properly allocated Finally Swearingen testified that, in his presence , Sargent had kicked bread boxes around , and off, the loading platform . Sargent denied that he had kicked any of the respondent's bread boxes . For reasons already given , the undersigned credits Sargent and finds that he did not kick the respondent 's bread boxes. The under- signed further finds that Swearingen 's objection to Sargent 's having told him that cakes were being improperly allocated and that if he took certain stores off Sargent's route the latter would have enough cake to serve other customers is without substantial foundation. Sargent was merely making suggestions that a salesman might reasonably propose and explaining why he had not delivered cake to a customer who had complained that Sargent had failed to make such delivery. 19 Percentages of Stales Week ending- Sargent Ellis Gazaway Ogletree Hays, supervisor Sept.19 ----------------------------- 19 78 22 99 22 13 19 16 21 21 Oct. 3 ------------------------------- 15 13 29 08 17 08 24 50 _ Oct.17______________________________ 11 68 16 80 16 65 16 75 22.16 Oct 24------------------------------ 14 41 18 83 _ _________ _ ____________ ___________ Nov.7________________ ______________ _ 13 44 _ 14. 38 _ _ 11 87 _ 6 87 18 30 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was admitted, however, that Ellis had been with the respondent about 2 years and had had the route in question for several months when his stales percentage was high. Swearingen also testified that Ogletree 's route had never done much business and had been driven by poor salesmen prior to the time that Ogletree took it over . It was conceded, however, that Ogletree had been with the respondent for about 3 years and was a trained salesman when he had the high stales in question . These explanations given for the stales averages that were higher than Sargent's do not impress the undersigned . Though it might be that stiff competition or former abuse of a route might make it difficult to make a high sales record, competent salesmen should, soon after beginning to handle any route, be able to judge the amount of products sold on the route -and to avoid unreasonably high stales averages. In addition , the stales record of the experienced salesman who succeeded Sargent averaged 77 percent higher during the 5-weeks period immediately follow- ing Sargent's discharge than did Sargent 's during the last 5 weeks that he worked for the respondent 17 Although one might expect even an experienced salesman on a new route temporarily to have a somewhat higher stales record than a sales- man who had worked on the route for years, the fact that the new salesman had a very much higher stales average than the old salesman is some evidence that the latter's stales record was not unreasonably high . Further, Sargent's stales record for October, during the latter part of which month Ward said his attention was first called to Sargent's case, was lower than it had been for the preceding 4 months.' During the last--week that Sargent was with the -respondent , Hays, his super- visor, told him that his route was in as good shape as he had ever seen it, and at the hearing Hays testified that Sargent was industrious and that he thought Sargent "averaged up with the balance of" the route salesmen . Ward testified that he always considered Sargent "a very good salesman ," while Sigman told Sargent at the time of his discharge that his work was satisfactory. Prior to his discharge, Sargent was never warned by any of the respondent's supervisors of his possible dismissal. On all of the facts, including the anti-union attitude of the respondent, as shown by the statements , threats, and inquiries of its supervisory employees, the undersigned finds that the respondent did not discharge Sargent for the reasons asserted by it but that it discharged him and failed to offer him reinstate- ment because of his activity on behalf of the Union and other concerted activities. By thus discriminating in regard to the hire and tenure of employment of Sargent, the respondent discouraged membership in the Union and interfered with, restrained, and coerced its employees in the , exercise of the , rights, gua.rantegd.in Section 7 of the Act. 2. The respondent's contentions concerning the discharge of McGinnis The reason given by the respondent for the discharge of McGinnis was that his work was not satisfactory in that he was taking too long to operate his route, his sales were down, and his stales were high. Though McGinnis admitted that he often got in from his route later than the other route salesmen , he explained this by the fact that he had a long route 1° and a great deal to do on it. Though he admitted that he had been 17 Sargent's percentage of stales during the period referred to was 14 16, while that of his successor was 25 25. 11 Sargent's stales averages for June, July, August, September, and October 1942 were, respectively, 19.15, 17.05, 19.10, 15 78, and 14.84 percent. 19 McGinnis' route on most days was about 1 50 miles long. Two days a week he went into Alabama and at these times it was about 168 miles long. COLUMBIA BAKING COMPANY 495 told to leave early and to get in as early as possible , Sigman conceded that there was no rule that a salesman had to be in at a particular time 20 Upon all the relevant evidence , the undersigned finds that the length of time taken by McGinnis in the operation of his route was not the cause of his discharge. Though McGinnis' bread sales in September were lower than they had been since he was given route 18,21 this was partially accounted for by the fact that one of his customers, West Georgia College, bought much less bread in September than it had previously purchased while McGinnis had been selling it bread' In October his average bread sales increased somewhat 28 The last weeks' bread sales of McGinnis amounted to $195.50, which was an increase of $7.59 over the sales of the previous week. The average weekly gross sales of bread by McGinnis from the week beginning July 20, about which time Sigman testified that McGinnis was first noticed "falling down," until his discharge on November 7 was $202.61. The average weekly gross sales of the successor of McGinnis, who, Sigman testified was doing very nicely , was- $195.43 from the week ending March 20 through the week closing May 1, which was the period of his highest sales average . McGinnis' sales record, as set out above, shows no unwarranted drop in sales at or near the time of his discharge . In view of this fact and of the further fact that the sales record of his successor, who was said to be doing very nicely , was lower than that of McGinnis, the undersigned finds that the respondent's assertion that it discharged McGinnis because of his low sales record is unfounded and that McGinnis was not dis- charged for that reason. The average weekly bread stales of McGinnis during October was 10 .27 per- cent, which was a considerably lower average than he had previously had since he took route 18 During October he won a prize for low stales 24 The stales record of a number of salesmen who are still employed by the respondent, were higher, during several weeks just preceding the discharge of McGinnis, than was his stales record during the same period. The stales per- centages of McGinnis for the weeks ending September 19, October 3, 17, and 24, and November 7, 1942, were 2162, 7194, 7 02, 6 08, and 13.62, respectively. The higher records of other salesmen still employed by the respondent are set out in footnote 16, supra. The stales record of the successors of McGinnis on route 18, during the period that stales were permitted to be returned to the 20 Sigman testified that the salesmen were supposed to have their trucks loaded and ready to go at 5 30 a in but that he had known McGinnis not to leave until 7.00 a. in, He testified further that when he had spoken to McGinnis about his late returns to the plant he received the "usual alibis " McGinnis testified that he usually got hs truck loaded about 5 a in but that it would be 5 : 30 or 5:15 a in. before he left on his trip. He testified further that he never left later than 6: 05 or 6 10 a in and that it was very seldom that he left that late. He also testified to the fact that his late returns were caused by the amount of work he had to do on his trips. The undersigned credits McGinnis and finds that he had never left as late as 7 • 00 a. in. and that these were legitimate reasons for his late returns 21 His gross bread sales averaged $238 19 per week in July , $236 14 in August„ and $201 53 in September . McGinnis was fist given route 24, but on June 29, 1941, he was given route 18, which be retained until his discharge. 22 The college bought 1 ,857 loaves in July, 2,085 in August , and 888 in September. 22 McGinnis ' average weekly bread sales for October was $208 The difference between his sales in September and October could be partially accounted for by his sale to the college of 627 more loaves of bread in October than in September. 24 The respondent contends that McGinnis' ability to win this prize during a contest demonstrates that his stales record generally was unwarrantedly high. While it may be that McGinnis could have maintained a lower stales record , that fact lends little „ if any, support to the claim that his stales record was the cause of McGinnis' discharge, since his higher stales average after he won the prize still remained lower than it had been in July and August , during which time his supervisor, Childs, said he did a good job. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent,26 was higher than that of McGinnis during the time that he had the route." Childs, the supervisor of McGinnis, testified that McGinnis' route 18 had the lowest stales record of any of Child's routes and that between August and November 1942 that route "was low on stale percentage," and a few days before McGinnis was discharged Childs told McGinnis that everything about his work was "in order, so far as he could see." The respondent, to support its contention that McGinnis' work record was faulty, introduced evidence that he was unsatisfactory to the route supervisor at Murphy, North Carolina, where McGinnis served his apprenticeship.24 That evidence, however, is not persuasive in view of the fact that the respondent retained McGinnis in its employ after he returned from Murphy to Atlanta about March 30, 1942, and, upon the recommendation of Supervisor Childs, promoted McGinnis to a better and a more lucrative route about June 29. On that occasion, Childs told McGinnis that he had done a good job on the previous route and that he was glad that he had been given a better route. In view of all the facts, including the anti-union attitude of the respondent, the undersigned finds that the respondent did not discharge McGinnis for the reasons asserted by it, but that it discharged him, and 'thereafter refused him reinstatement, because of his activity on behalf of the Union and because of, his other concerted activity. By thus discriminating in regard to the hire and tenure of employment of McGinnis the respondent discouraged member- ship in the Union and interfered with, restrained, and coerced its employees, in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in 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 tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in unfair labor prac- tices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent has actively engaged in a campaign to- hinder and obstruct its employees in their right to self-organization and has- engaged in a course of conduct calculated to restrain and coerce its employees- 26 A government order effective about January 25, 1943, no longer permits the return of- stales. 2n The average weekly'stales percentage of McGinnis while he had route 18 was 14 47" while the combined stales percentage of his successors was 18 64 27 A letter from Frank Burrell, McGinnis' supervisor at Murphy to Mr. Ainau, then the respondent's plant manager at Atlanta, stated that McGinnis had "not shown the proper ability for me to give him any further consideration for this route here" McGinnis testified that after he had been In Murphy some time Burrell told him that he had found a local man to take the Murphy route Although the employment record card of McGinnis- was signed by Buriell at'the place the foreman would ordinailly sign in the case 'of a termination of employment, the only date of such termination given on this card was "11-7-42" and the only person who gave a reason thereon for a termination of employ- ment was S . W Swearingen , the respondent's assistant plant manager Burrell did not- testify and no reason was given by the respondent for -his failure to do so The under- signed credits McGinnis ' explanation of the reason for his leaving Murphy and finds that,, he was not discharged at this time. COLUMBIA BAKING COMPANY 497 in the exercise of ,the rights guaranteed them in Section 7 of the Act. It will therefore be recommended that the respondent cease and desist from such actions. It has been found that the respondent discharged Luther Clayton Sargent and Densal Grover McGinnis and thereafter failed to reinstate Sargent because he assisted the Union and engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection and refused to re- instate McGinnis for the same reasons. It will therefore be recommended that the respondent offer McGinnis full reinstatement to his former or sub- stantially equivalent position without prejudice to his seniority or other rights and privileges. It will be further recommended that the respondent make McGinnis whole for any loss of pay that he may have suffered by reason of his discharge by payment to him of a sum equal to the amount which he would normally have earned as wages from the date of his discharge to the date of the offer of reinstatement less his net earnings, if any, during such period 2s Sargent testified that he does not desire reinstatement to his former em- ployment. Therefore, it will not be recommended that the respondent offer him reinstatement. However, it will be recommended that the respondent make him whole for any loss of pay he may have suffered by reason of his discharge by payment to him of a sum equal to the amount which he would normally have earned as wages from the date of his discharge to the date upon which he started working steadily in the employment in which he was engaged at the time of the hearing, less his net earnings, if any, during such period.2B Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Truck Drivers and Helpers Local Union No. 728, is a labor organization, within the meaning of Section 2 (5) of the Act. 2 By interfering with, restraining, and coercing its employees in the exercise of 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 (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Densal Grover McGinnis and Luther Clayton Sargent, thereby discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Truck Drivers and Helpers Local Union No. 728, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) 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. "By "net earnings" is meant earnings less expenses, such as for transportation room, and boaid, incurred by an employee in connection with obtaining work and working else- where than for the respondent which would not have been incurred but for the respond- ent's discrimination against him and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 9x90, 8 N. L R B 440. Monica received for work performed upon Federal, State, county, municipal, or other work-ielief projects shall be considered as earnings See Republic Steel Corporation v N. L. R B., 371 U. S. 7. zs See Joseph Stremel, doing business as Crow Bar Coal Company and United Mine, Workers of America, District 15, 48 N. L. R B. 660. Also see footnote 28, supra. 540612 -44-vol. 51-32 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDATIONS Upon the basis of the above findings -of fact and conclusions of law, the undersigned recommends that the respondent, Columbia Baking Company d. b. a. Stone Baking Company, and 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, Truck Drivers and Helpers Local Union No. 728, or any other labor organization of its employees, by dis- charging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment or any other term or condition of their employment ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act 2 Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Densal Grover McGinnis immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay he may have suffered, by reason of- the respondent's discrimination against him, by payment to him of a sum equal to that which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period; '0 (b) Make Luther Clayton Sargent whole for any loss he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum equal to that which he ordinarily would have earned as wages from the date of his discharge to the date upon which he started working steadily in the employment in which he was engaged at the time of the hearing less his net earnings during said period; 3' (c) Post immediately in conspicuous places in its place of business in Atlanta, Georgia, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a) and (b) of these recommendations; (2) that the re- spondent will take the affirmative action set forth in paragraph 2 (a) and (b) of these recommendations, and (3) that its employees are free to remain or become members of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Truck Drivers and Helpers Local Union No. 728, or any other labor organization and that the respondent will not dis- criminate against any employee because of membership or activity,in that or any other labor organization ; (d) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. It is also recommended that, unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the See footnote 28, supra. ffi See footnote 28, supra. COLUMBIA BAKING COMPANY 499 National Labor Relations Board issue an grder requiring it to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended , effective October 28, 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board , pursuant to Section 32 of Article II of said Rules and Regulations , file with the Board, Shoreham Building, Washing- ton, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or pro- ceeding ( including rulings upon all motions or objections ) as he relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days after the date of the order transferring the case to the Board. CARL C. WHEATON, Trial Examiner. Dated June 11, 1943. 510012-44 -vo 151-33