Wells Dairies Cooperative

WELLS DAIRIES COOPERATIVE 875 WELLS DAIRIES COOPERATIVE and RETAIL, WHOLESALE AND DEPART- MENT STORE UNION, CIO . Case No. 10-CA-1833. November 16, 1954 Decision and Order On July 8, 1954, Trial Examiner Thomas N. Kessel issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act, and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a brief. The Respondent also requested oral argument. This request is hereby denied because, in our opinion, the record and exceptions and brief adequately pre- sent the issues and the positions of the parties. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' Order On the basis of the entire record in this proceeding, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Wells Dairies Cooperative, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Retail, Wholesale and Depart- ment Store Union, CIO, or any other labor organization of its em- ployees, by discriminating in regard to their hire or tenure of employment. (b) Interrogating its employees as to their union activities in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1), or coercing them by making statements opposing i Member Beeson would not find a violation of Section 8 (a) (3) as to Curry under the circumstances of this case In his opinion, the evidence relied upon by the Trial Ex- aminer was insufficient to establish that Respondent knew of Curry's union activity at the time of his discharge, because: ( 1) The alleged small size of the unit is insufficient upon which to predicate company knowledge (N. L. R. B v. Radcliffe d/b/a Homedale Tractor & Equipment Co, 211 F. 2d 309 (C. A. 9)), and (2 ) Respondent's interrogation and surveillance were not shown to have revealed Curry's connection with the Union. Furthermore, the timing of and motive for Curry's discharge are fully explained by the ,fact that during the 2 days immediately prior to his discharge, 5 separate customer complaints had been lodged against Curry charging him with overcharging 110 NLRB No. 142. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their union activities and implying economic reprisals against them for participation in such activities, or engaging in surveillance of the union activities of the employees. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Retail, Wholesale and De- partment Store Union, CIO, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid and protection, or to refrain from any such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Charles T. Curry immediate and full reinstatement to his former-or substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make whole Charles T. Curry and Chester F. Doswell for any loss of pay suffered by them in the manner set forth in the section of the Intermediate Report entitled "The Remedy," except that Doswell's back pay is to terminate as of the date when he would have been discharged for medical reasons. (c) Post at its plant in Columbus, Georgia, copies of the notice attached to the Intermediate Report and marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof and main- tained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Upon request, make available to the Board or its agents for examination and copying all payroll, social-security, timecards, per- sonnel, and other records necessary to determine the amount of back pay due. (e) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 The notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof the words "A Decision and Order" In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pur- suant to a Decree of the United States Court of Appeals, Enforcing an Order." WELLS DAIRIES COOPERATIVE Intermediate Report and Recommended Order STATEMENT OF THE CASE 877 Upon a charge filed by Retail, Wholesale and Department Store Union, CIO, herein called the Union, the General Counsel for the National Labor Relations Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued his complaint dated December 22, 1953, against Wells Dairies Cooperative, 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 (a) (3) and (1) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint and a notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged that the Respondent on November 4, 1953, discharged employees Charles T. Curry and Chester F. Doswell for their union activities in violation of Section 8 (a) (3) of the Act, and that between November 2 and 4, 1953, through various acts of super- visors interrogated employees as to their union activities, offered money to employees to reveal the identity of union adherents, threatened employees with reprisals for their union adherence, and engaged in surveillance of a union meeting, all in viola- tion of Section 8 (a) (1) of the Act. The Respondent's answer denied the com- mission of unlawful conduct as alleged by the complaint. Pursuant to notice, a hearing was held at Columbus, Georgia, on January 18 and 19,_1954, before Thomas N. Kessel, the Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were repre- sented by counsel, and an appearance was entered by an official of the Union. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence was afforded all parties. During the hearing; at the conclusion of the General Counsel's case-in-chief, the Trial Examiner granted the Respondent's un- opposed motions to strike from the complaint for lack of proof the allegations therein as to the monetary offer by Supervisor Riley to employees for information con- cerning union adherence, the threat of reprisals by Supervisor Bray to employees for engaging in union activities, the interrogations of employees as to their union activities by Supervisors Riley and Redmond, and the surveillance of the union meeting by Supervisor Gunnels. Other motions to strike various allegations of the complaint for lack of proof were denied. Ruling was reserved on motions to dismiss the complaint with respect to the allegations of unlawful discharges of employees Curry and Doswell, and the interrogations of employees by Supervisors Heard, Bross, Brookins, and Sailors. These latter motions are disposed of by the findings and conclusions set forth herein. At the conclusion of its defense the Re- spondent moved to dismiss the complaint on jurisdictional grounds, and for the General Counsel's failure to prove his case by the necessary preponderance. Ruling was reserved on these motions, and they also are disposed of by the findings and conclusions set forth herein. After the hearing the General Counsel and the Re- spondent filed briefs which have been carefully considered by the Trial Examiner. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT At the hearing the parties stipulated that the evidence contained in the record in Case No. 10-RC-2598, a representation proceeding then pending before the Board involving the Respondent's employees, should constitute the evidence in this case with respect to the nature and scope of the Respondent's business. The pertinent evidence was incorporated in the brief filed by the Respondent with the Board in the foregoing representation proceeding, and this brief was introduced as an exhibit in this case with a stipulation by the parties as to the specific pages to be considered by the Trial Examiner. Since the close of the hearing in the instant case, the Board issued its Decision and Direction of Election in Case No. 10-RC-2598, reported at 107 NLRB 1445. In that decision the Board considered the same arguments raised by the Respondent in this proceeding to contest the assertion of the Board's jurisdiction over the Re- spondent's business. These arguments are that assertion of jurisdiction should be declined because (1) the Respondent's employees are agricultural laborers, and (2) its business is essentially local. The essential commerce facts contained in the 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record and set forth in the Board's decision show that the Respondent, a nonprofit cooperative association, incorporated under the laws of Georgia, is engaged in the business of processing, selling, and distributing milk produced by farmers who are members of the association. Its main plant is located at Columbus, Georgia, near the Alabama line, and it has a branch distribution plant 60 miles distant at Thomas- ton, Georgia. The Respondent has over 200 employees at its main plant, where raw milk produced by its members is received and processed, and from whence it is distributed to customers. It is further alleged in the complaint and admitted in the answer that during the past year the Respondent's sales of dairy products totaled $3,956,252.86, and of this sum $256,845.06 represents the value of products shipped directly to customers outside Georgia, and that more than $100,000 worth of products were sold and shipped to the Fort Bening, Georgia, military installation. During the same period, the Respondent directly purchased materials and supplies valued at $356,402 from points outside Georgia and also made other purchases which originated out- side the State valued at $54,951.83. The record shows that 90 to 95 percent of the Respondent's interstate sales are made within a 10-mile radius of the Columbus, Georgia, plant to customers in Alabama. Upon consideration of the foregoing facts the Board rejected the Respondent's jurisdictional arguments in the representation proceeding. For the reasons stated by the Board, these arguments are likewise rejected here. Accordingly, the Re- spondent's motion to dismiss the complaint based on the foregoing arguments is hereby denied. It is found that the Respondent's employees are not agricultural employees within the meaning of the Board's appropriation rider or within the mean- ing of Section 2 (3) of the Act. It is further found that the Respondent is engaged in commerce within the meaning of Section 2 (6) of the Act and that it would effec- tuate the policies of the Act to assert the Board's jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Retail, Wholesale and Department Store Union, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The parties stipulated that the following persons were the Respondent's super- visors, as that term is defined in the Act, during all times material to this case: Sales Department Supervisor J. O. Riley; Retail Sales Manager Rufus Bross; Re- tail Division Supervisors Zealous Heard, Melvin Redmond, and Carl Copeland; Wholesale Division Supervisors R. J. Brookins and Jack Sailors; Processing Super- visor John Bray; Ice Cream Supervisor Rufus Gunnels; and Shipping Department Supervisor James Shirley. Charlie B. Williams is a wholesale route salesman under the supervision of R. J. Brookins. He testified that during the morning of November 4, 1953, Brookins engaged him in conversation at a store along his route and while exhibiting to him a union membership card asked him whether he had signed one like it. Williams admitted that he had. Then Brookins asked Williams whether his helper had also, signed a card, and was advised that he should ask the helper. That afternoon Brookins again spoke to Williams in the Respondent's yard. During this conversa- tion he asked Williams whether he was going to a union meeting that night, where- upon Williams became "a little hot." With reference to the Union, Brookins said to Williams, "I would hate to see you go wrong." This evoked Williams' retort, "I have been wrong before, so it won't matter much." James A. Roberts is also a wholesale route salesman under R. J. Brookins. He testified that during the evening of November 4, 1953, as he pulled into the Re- spondent's yard, Brookins spoke to him and asked, "Slick, have you heard anything about a union?" Roberts stated that he had. Brookins then asked, "What are you going to do about it?" Roberts informed him that he did not know, and that he would have to think it over. Then Brookins asked him whether he had signed a union card and was told that he had, and that he "guessed" everybody had done so. Brookins retorted, "I think you are wrong, just a few of them have." He next questioned Roberts whether he was going to the union meeting that night and fol- lowed with the statement, "When this thing is over, I hope you are on the right side of the fence." Brookins testified for the Respondent and admitted that he had engaged in "small", conversations with Williams and Roberts on the date in question. He did not deny WELLS DAIRIES COOPERATIVE 879 any of the conduct or remarks attributed to him on these occasions , but asserted that his expressions reflected his personal opinions and were not spoken in behalf of the Respondent . He claimed that he first learned of the Union's activities in the Respondent's plant during the morning of November 4, and that he had not been directed by his superiors to question employees concerning their union status. Moreover, he further testified, he had been directed in the afternoon of that day not to discuss union matters with employees and has since then not done so. Clifford Carlton Lisle works for the Respondent as a wholesale route salesman. On November 4, 1953, he was supervised by Zealous Heard. On the afternoon of that day Heard questioned him while they were at the loading dock about his at- tendance at a union meeting the night before and whether he had signed a card. Lisle answered both queries affirmatively whereupon Heard asked about his inten- tions. Lisle replied that he would "go along with the boys." Heard then com- mented, "I hope you are on the winning team (or side )." He asked Lisle whether he was going to the union meeting that night and finally remarked , "If you vote, I hope you vote right." Earl J . King is a driver-salesman for the Respondent and on November 4, 1953, was also supervised by Heard. On that day Heard spoke to him on his route and asked whether he had signed a union card . He admitted he had done so. Heard then said he felt that all who had done so "would be sorry in the future." King further testified that no supervisor had threatened him. Heard is no longer employed by the Respondent and did not testify . The Re- spondent did not indicate reasons for his unavailability as a witness other than the fact he was not now in its employ. Bobby Lee Chambers is a retail salesman for the Respondent. On November 4, 1953, he had parked his truck on the Respondent's premises and was proceeding to the checkroom when Retail Sales Manager Rufus Bross engaged him in a "friendly" conversation. He testified that Bross said he had heard "something has been going around" which he apparently had found out and that it had hurt him. Bross remarked, "I thought you would have come and talked to me about it, I think a lot of you." He commented about someone having gone on strike 20 years ago and that it did not work out, and followed up with the suggestion to Chambers that he take his wife and children to church that night and be thankful he had a job. He questioned Chambers as to whether he had signed a union card , and where he would work if he left the Respondent. .To the latter query Chambers responded' that he would work for the Borden Cheese Company. Bross thereupon inquired, "Don't you think they would call here for reference?" Chambers acknowledged that he had not regarded Bross' remarks as a threat. Bross admitted in his testimony having had a conversation with Chambers at the time in question . He denied the comments attributed to him. According to Bross, Chambers had first discussed business matters with him and then said, "I have got something I have to tell you. There is a union going around." He replied to Chambers that "this is a free country, the men can do what they want to. I hope they make a wise choice ." Chambers asked, "What would you do?" Bross told him, "I would do what I wanted to do, I won 't influence you one way or the other, I won't talk for it or against it." This, said Bross, concluded the conversation. He further testified that during the afternoon of November 4, 1953, he and other supervisors were cautioned by General Manager Cooper to refrain from discussing the Union with employees and to maintain a handsoff attitude with respect to it. Chester F. Doswell, one of the employees allegedly discharged for unlawful reasons, testified that on November 3, 1953 , the day before he was discharged, his supervisor, Jack Sailors, met him along his route and rode with him. Sailors, he said, did not normally ride with him . In an ensuing discussion Sailors inquired of Doswell whether he knew anything about "this union business." Doswell indi- cated that he did , and Sailors acknowledged to him that he also had heard about it. Then Sailors asked Doswell whether he had joined the Union and was informed that he had. After Doswell was discharged on the morning of November 4, 1953, he and Charles T. Curry, the other discharged employee, went to a cafe for coffee. While they were there Sailors arrived. According to Doswell, Sailors admitted on this occasion having interrogated three employees about the Union just as he had questioned Doswell on the preceding day, and expressed the belief that Respond- ent's other supervisors had similarly interrogated employees under them . Testimony by Curry as to Sailors' remarks in the cafe was in accord with Doswell's testimony.) 'Other remarks attributed by Doswell and Curry to Sailors during this cafe conver- sion are related infra in connection with discussion of facts relative to Doswell's discharge. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sailors testified that he had conversed with Doswell on Tuesday, November 3, 1953, and had told him he had heard a rumour about the men organizing. This rumour had been communicated to him on Monday, November 2, 1953, by an unnamed person not employed by the Respondent. He conceded that he had asked Doswell whether the employees were organizing, but asserted he did not ask him whether he was a member of the Union. Sailors denied the remarks attributed to him by Doswell and Curry in the cafe. Charles T. Curry testified that on the night of November 4, 1953, the Union held a meeting at the CWA union hall located on Fifth Avenue in Columbus. He was standing outside the hall behind a bush near the curb between 8:30 and 9 p. in. when he claimed to have observed Supervisor Copeland drive slowly past the meet- ing hall 5 or 6 times. He saw Copeland's wife and baby in the car with him. He claimed also to have seen Supervisors Heard, Brookins, and Shirley drive back and forth outside the meeting hall. Then they proceeded down the street, parked, and walked up the other side of the street. Curry returned to the meeting and reported that the Respondent's supervisors were spying. Copeland admitted driving by the hall at about the time in question and that his wife and baby were with him. He denied he was there to spy on the Union, but stated that he and his family were proceeding homeward from a friend's house and that they had driven along Fifth Avenue because it was the most direct route to their destination. Brookins testified that at the time in question he and his wife were at the home of Supervisor Melvin Redmond. Brookins was corroborated by Redmond. As noted, Heard was not called to testify. Supervisor Shirley also failed to testify, and no explanation was advanced by the Respondent therefor. I credit the foregoing testimony by employees Williams, Roberts, and King, particularly as their testimony stands uncontradicted or otherwise impeached. I further credit the testimony of employee Chambers as to his version of the conver- sation with Supervisor Bross. Chambers impressed me as a sincere and thoroughly truthful witness. I was not equally impressed by Bross. As between them, I believe Chambers. I also credit Doswell's account of his conversation on November 3, 1953, with Sailors, particularly as the latter denied only that part involving inquiry as to Doswell's membership in the Union. I am also convinced that during his conversation with Doswell in the cafe on November 4, 1953, Sailors admitted interrogating other employees as he had interrogated Doswell the preceding day. This finding is influenced by the greater, weight which I accord Curry's testimony as opposed to Sailors'. Pursuant to the foregoing findings, I conclude that the several instances of inter- rogation of employees as to union activities by the Respondent's supervisors violated Section 8 (a) (1) of the Act. In so concluding, I am mindful that interrogation to be unlawful must be coercive, and is not per se violative of the Act. I am well aware, as the Respondent argues, that isolated acts of interrogation should not be regarded as infringing the Act. I do not however, view the interrogations found herein to be either innocuous or isolated. Instead, they impress me as being sufficiently numerous and to have been undertaken in such manner as to assume coercive proportions. The questioning took place within a brief period of approximately 24 hours, and occurred directly after the union campaign got under way.2 There was nothing casual about the manner in which the supervisors conducted their inquiries. These were deliberate interrogations by supervisors designed to obtain information concern- ing the union activities of employees and to discourage their continuation therewith. Nor did they confine themselves to mere words of interrogation, but coupled their questions with expressions insinuating danger to employees who pursued their union course. Brookins' hope that he "would hate to see [Williams] go wrong," his hope that Roberts would choose "the right side of the fence," Heard's hope that Lisle select "the winning team (or side)," and that if he votes at a union meeting that he vote right, and his prediction to King that all employees who had signed union cards "would be sorry in the future" were not just perfunctory remarks. When spoken with the same breath that sought information concerning the Union, these words suggested employer opposition to unionization and misfortune for those who embraced it. Employees exposed to such remarks could easily appreciate the mean- ing which their supervisors were attempting to get across. What would they regret? Over what would they need be sorry if having chosen the Union they were to be on the losing side? No ultra-sophistication was required for employees to fully appreciate that they were being sagely advised that if they were so unwise as to continue with their union activities and to choose the losing side, they could reason- 2 As will be shown, infra, the organization of the Respondent's employees of the Union started on October 30, 1953. WELLS DAIRIES COOPERATIVE 881 ably expect reprisals by their employer affecting their employment. Bross' remarks to Chambers were equally if not more pointed. In context, the advice to Chambers to be prayerfully thankful that he had a job strongly suggested that continuation of his union activities might result in the loss of his job. Furthermore, the query as to where else he would work coupled with the remark that prospective employers would call the Respondent for references, was in context a warning that favorable references would not be forthcoming if Chambers adhered to the Union. Thus, he was doubly threatened, first with loss of his present employment, and beyond that, with an impediment in the way of securing another job. In this connection it is immaterial that Chambers may not, as he testified, have construed Bross' remarks as threats. An employer's conduct calculated or tending to interfere with, restrain, or coerce its employees in the exercise of rights guaranteed by Section 7 of the Act is no less violative of Section 8 (a) (1) because such conduct may not have achieved its purpose .3 The interrogation of employee King and the remarks to him by Supervisor Heard are for the same reason unlawful despite King's testi- mony that no supervisor threatened him. With respect to Curry's testimony of surveillance of the November 4, 1953, union meeting by supervisors, I credit Supervisor Copeland's testimony that he merely drove by the meeting hall enroute to his home, and the testimony of Supervisor Brookins that he was not in the vicinity of the meeting hall but spent the evening at the home of Supervisor Redmond, a circumstance which the latter credibly corrobo- rated. On the other hand, Curry's testimony is unrefuted that Supervisors Heard and Shirley drove back and forth past the meeting hall, parked their car, and then walked back up the street. Absent any explanation on the record for their behavior, the inference is reasonable that Heard and Shirley were present at the particular place and time to spy on the meeting or at least to create the impression that such was their intention. In either event, such conduct is coercive and in violation of Section 8 (a) (1) of the Act, and it is so found. In reaching the foregoing conclusions as to violations of Section 8 (a) (I) of the Act, I have considered the arguments in the Respondent's brief that the conduct of its supervisors should not be condemned as unlawful and charged to it because the acts of its supervisors merely reflected their personal opinions and were not authorized by higher management, and because on the afternoon of November 4, 1953, after these acts had already been committed, the Respondent directed its supervisors to refrain from interfering with its employees' union activities with the result that there was no repetition of their earlier acts. These arguments are with- out merit. In the first place, they are not wholly consistent with the facts which reveal unlawful surveillance by Supervisors Heard and Shirley on the night of November 4, 1953, after the direction not to interfere. Moreover, a finding that an employer is responsible for the coercive conduct of its supervisors is not dependent upon prior authorization or proof that their conduct reflects the view of their employer.4 Nor is it consequential that the commission of misconduct by supervisors is not repeated upon direction of superior authority. For the Respondent to have cured the wrongful acts committed by its supervisors, positive steps were required to overcome the coercive effect of these acts. In the circumstances of this case, this could have been accomplished only by the Respondent's specific disavowal to its employees of the conduct by its supervisors which would have neutralized the effects of their wrongful acts.5 Accordingly, it is found that the Respondent, through the following conduct by its supervisors, violated Section 8 (a) (1) of the Act: (a) Brookins' interrogation on November 4, 1953, of employee Williams as to whether he and his helper had signed union membership cards, and his later inter- rogation that same day of Wlliams as to whether he was going to the union meeting that night coupled with the remark to him, "I would hate to see you go wrong." (b) Brookins' interrogation on November 4, 1953, of employee Roberts as to what he had heard about a union, and his intentions concerning his union activities coupled with the remark, "When this thing is over, I hope you are on the right side of the fence." (c) Heard's interrogation on November 4, 1953, of employee Lisle as to his union activities and intentions coupled with the remark "I hope you are on the Somerset Classics Inc, 90 NLRB 1676, 1678, enfd 193 F. 2d 613 (C. A. 2). Edwards Brothers, Inc., 95 NLRB 1451, 1453. 6Indiana Metal Products Corp., 100 NLRB 1040, 1041, enfd as mod. 202 F. 2d 613 (C. A. 7) ; The Ctnctinnati Steel Castings Company, 86 NLRB 592, 596 338207-,55-vol. 110-57 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD winning team (or side)," and with respect to his attendance at a union meeting, the remark, "If you vote, I hope you vote rjght." (d) Heard's interrogation on November 4, 1953, of employee King as to whether he had signed a union card coupled with the remark that all who had done so "would be sorry in the future." (e) Bross' discussion on November 4, 1953, with employee Chambers concerning union activities among the Respondent's employees in which he expressed regret at Chambers' failure to inform him about these activities, his interrogation of Cham- bers as to whether he had signed a union card coupled with the suggestion that he take his wife and children to church and be thankful that he had a job, and his inquiry as to where Chambers would look for other employment with the reminder that prospective employers would contact the Respondent for a reference. (f) Sailors' interrogation on November 3, 1953, of employee Doswell concern- ing his knowledge of "this union business" and whether he had joined the Union, and his similar interrogation of at least two other employees at about the same time. (g) Heard's and Shirley's surveillance of the union meeting on the night of November 4, 1953. B. The discriminatory discharges of Charles T. Curry and Chester F. Doswell 1. The pertinent evidence Employees Charles T. Curry and Chester F. Doswell were separately discharged by their respective supervisors at 4 a. in. on November 4, 1953. Curry's and Dos- well's union activities began by their attendance of a meeting of the Kennett Dairy 6 employees held by the Union on the night of October 23, 1953, at the CWA hall in Columbus. Arrangements were made by them on this occasion for a meeting at this hall of the Respondent's employees on the following Friday night, October 30, 1953. In the ensuing days they revealed the plan for the meeting to the Respondent's salesmen at the plant and invited their attendance . A meeting was held at the scheduled time and place attended by about 32 of the Respondent's approximately 50 salesmen, all of whom, including Curry and Doswell, signed membership cards and joined the Union. Curry and Doswell took charge of the meeting, "explained the meeting to the boys," and helped them fill out their cards. Between the time of the meeting and their discharges on November 4 Curry and Doswell solicited other of the Respondent's employees to sign membership cards. Curry did this both at and away from the plant. He did not testify as to the number of employees he solicited. Doswell solicited 5 or 6 employees. Curry was informed of his discharge by Bross and Copeland. Bross, Curry as- serted, usually reported at the plant at 8 a. in. On this occasion he was present at 4 a. in. He testified that in discharging him Bross assigned as reasons for his action "unsatisfactory work," "not showing due respect to supervisors," and "overcharging the customers." According to Curry, Bross did not explain in what manner his work had been unsatisfactory. He further claimed that he had never before re- ceived a complaint that his work was unsatisfactory. He acknowledged that he had in the past missed a monthly meeting of the plant safety committee of which he had been a member, but this had occurred about 3 or 4 months ago. He professed that in 6 years he had also missed about 3 of the monthly sales meetings he was required to attend, but 2 of these absences had been excused while only 1 was not. Moreover, the unexcused absence had occurred over a year or two before his dis- charge. He conceded he had once been disrespectful to a superior and that he had incurred a reprimand therefor. This arose out of an incident which had occurred in April 1953, about 7 months before his discharge, when a tornado had struck the area of his route and Curry had remarked that his supervisor, Copeland, had not shown proper interest in his route by failing to ride with him; that when Copeland was apprised of Curry's comment he admonished him for having disparaged him before the other drivers. Curry said that he apologized and nothing more was said about the incident. Concerning customer complaints, he stated that they were re- ceived by him "off and on" during his entire employment with the Respondent. He explained that with as many customers as he had errors were bound to occur, and when such complaints came in they were noted and then put in his route stack. In the month before his discharge he received 1 complaint from a customer named Carl Player which involved an overcharge for 2 quarts of milk. He discussed the matter with the customer and it was settled to the latter's satisfaction 6 Another employer of dairy employees in Columbus WELLS DAIRIES COOPERATIVE 883. Cross-examination of Curry elicited his denial that Bross had on the occasion of his discharge mentioned rough handling by Curry of milk bottles and cases. He conceded that breakage of 4 or 5 quarts of milk during loading operations could be excessive, but denied that Copeland had ever cautioned him about rough handling during these operations. He insisted that he had received only one complaint from a customer during the month before his discharge and that when he pressed Bross, as he was being discharged, for the names of customers from whom he had allegedly received complaints, Bross did not reveal their names. He stated further that if there had been 4 or 5 customer complaints in the month of October this would not have been excessive as this was an "auditor's month." 7 He denied that he had ever gone over Copeland's head to take up matters with General Manager Cooper, or that he habitually had such dealings with Sales Department Supervisor Riley, while admitting a conversation a week or two before his discharge with Riley over a matter of bottle shortages erroneously charged to him. Curry acknowledged familiarity with the Respondent's rules for its salesmen including the requirements to charge proper amounts to customers and to credit all accounts as soon as trans- acted. He explained that in servicing 300 to 350 customers daily, he customarily made deliveries to about 15 customers before posting the necessary entries in his book. Sometimes, if he were running late, he would post only 2 or 3 times for all customers. Although he understood his posting procedures were not in accord with the company rule, it was nevertheless the way he was taught to post his books. Furthermore, he said, this practice was known to his supervisors. Questioned about whether he had complained to management about his loading time, Curry stated that his loading time had formerly been 4 a. m., but that at a certain time estimated as 3 to 5 months before his discharge his loading time was changed to 4:30 a. in. Because this resulted in late delivery to his customers, Curry requested that his loading time revert to 4 a. m. He took up this matter with Copeland and Bross, but his complaint was ignored. He conceded that he might have said something about this to the other salesmen. Asked whether upon notification, presumably by supervisors, as to customer complaints he took the position that he was "perfectly right and the customer was probably wrong," he agreed that in some instances this had been his attitude. He denied voicing complaints about having to distribute company literature to customers, or that he was ever reprimanded about anything having to do with company literature. Bross denied that Curry's union activities were a factor in his discharge. He flatly disclaimed knowledge of any organizational activities in the Respondent's plant before this event, or knowing that Curry was involved in them. He stated that he first learned of the Union's drive to organize the employees during the morning of November 4, several hours after Curry's discharge, and that he acquired this knowledge as a result of a telegram from the Union to the Respondent making representation demands. According to Bross, Curry was discharged by him and Copeland as a result of their joint decision arrived at after a lengthy conference on the afternoon of Novem- ber 3, 1953. Assertedly, this decision was the outgrowth of various provocations on Curry's part against Bross and Copeland over a period of 3 to 6 months which were climaxed by the receipt of about five complaints in the Respondent's office on November 2 and 3 from customers that they had been overcharged by Curry. This latter circumstance was assigned by Bross as the moving cause in the decision to discharge Curry. He stated that having determined to discharge Curry, he tried to contact him by telephone at his home but could not reach him. He therefore came to the plant the following morning at Curry's reporting time to inform him of his discharge, and gave him as reasons for this action his insubordination and unsatisfactory work. He testified that he mentioned to Curry the matter of the complaints from customers, but admitted that he did not reveal their names. He told him that his attitude toward his job, and towards Copeland and himself was intolerable; that for some time they had "stood up under it, but when it got to affecting his customers about his work and the way his work involved the Company, [they] could not put up with it any longer." He also pointed out to Curry that for a number of months he had been a "chronic griper." that he had made remarks about him and Copeland, that he had gone over their heads to Riley on matters he should have taken up with them, and that he had a belligerent attitude regardless of what they discussed with him 9 This apparently meant that during the month of October a note was appended to the Respondent's statements to customers advising them to notify the company accountants or the Respondent of errors in their accounts for that particular month 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To illustrate his condemnation of Curry's behavior, Bross testified to the follow- ing incidents . The Respondent had moved into its present plant quarters about February 1953, and loading operations at that time started at 4:30 a. m. Curry, he said, got the other men to join with him in objecting to such an early loading hour, so the time was changed to 5 a. m. Following that Curry began to complain that he was not getting out early enough and that he would lose customers. Bross then told him to decide upon his own loading time and he would arrange with the shipping department to accommodate him. Bross did not indicate whether the accommodation was made. He related that the Respondent had a procedure whereby the salesmen were required to fill out cards containing pertinent customer informa- tion such as changes in their addresses. In the last 2 or 3 months of Curry's employment Bross said he did not see a single card filled out by him and cautioned him about making notations particularly as to customer transfers from one route to another. Bross usually distributed advertising literature to the salesmen to be left by them with customers. Literature would be given to salesmen in amounts sufficient to supply their customers with perhaps a little left over. He noticed on inspection of Curry's truck when it returned at the end of the day that most of the literature was still there. He cautioned Curry about this a number of times. Bross observed that Curry was also careless in handling milk bottles and cases, and he had asked him to be more careful. He spoke to Curry about this approximately a month before his discharge after he had broken 5 bottles of chocolate milk in 1 day. Despite this admonition he saw no improvement in Curry's handling of equipment. Bross related that Curry's attitude toward sales and safety meetings was "that they were not too important, he would attend hem if it suited him and if he didn't feel like it, then he would not." He charged Curry with missing 1 or 2 safety meetings during a period of 7 or 8 months, and stated that Curry had missed 4 sales meetings in the 9-month period preceding September or October 1953. Bross had no attendance records for these meetings. He claimed to have spoken to Curry about his absences from these meetings each time he missed a meeting. As to disparaging remarks, Bross testified that Curry used to refer to him as a "big shot" in conversations with other employees, and that he had spoken to Curry about this in about August 1953. He also had spoken to him about a month or two before his discharge about going directly to Riley and bypassing him and Copeland. This incident involved a matter of the shipping department' s error over the empty bottles regarding which Curry had testified. Bross pointed out that Curry's direct contacts with Riley in which he went over his supervisors' heads were too numerous to recount. Concerning customer complaints, Bross testified that for 2 or 3 months before November he had been suspicious of Curry as he had been receiving such com- plaints regularly about him. This he asserted was unusual as customers normally adjust their complaints directly with their salesmen. When Bross brought these complaints to his attention, he claimed that Curry took the attitude "to Hell with the customers, they are trying to gyp me out of some milk." As an example of these complaints he related a report from a Lieutenant Sawyer involving an over- charge of $6.16. This matter appears to have come to Bross' attention in October 1953. He checked Curry's book for the preceding month and found that Curry had noted on the appropriate page "stop milk" and that no milk deliveries were made for September 24, 26, and 29. The customer was nevertheless charged with milk for all these days. Bross indicated that Curry had failed to prepare the card required by the Respondent to flag the customer's stop-milk notice, and that he was unable to find the customer card which the salesman was required to prepare. He went to the customer's house and spoke to a Mrs. Cook who lived there. She was unable to recall which milk deliveries were made by Curry on given days. Bross related another incident involving a Lieutenant Ritts in which Curry appears to have neglected to make out the necessary file cards showing that the customer had stopped deliveries. In this case also the customer was charged for milk after the date when the deliveries were to have stopped. Bross estimated there were at least a dozen such cases in Curry's books. He had no record, however, of Curry's alleged overcharges, except his last ones. These were from a Mrs. Willis, who called in on the 3rd (presumably November) to state that on the 10th (presumably October) she received 5 quarts of milk but was charged for 6 quarts of milk, a half pound of whipping cream, and a half pound of butter; from a Mr. Player who was charged with 6 quarts of milk but claimed to have received only 4 quarts; a Mrs. Herron and a Mrs. Hall received no milk on certain days pursuant to their instructions but were nevertheless charged with deliveries for those days. Mrs. Hall also complained that on another day she was charged with 4 quarts of milk but only received 3 quarts. With respect to the several complaints received in November, Bross stated that WELLS DAIRIES COOPERATIVE 885 although October is an "auditor's month" as Curry had testified, the Respondent did not usually receive more complaints from customers because of that circumstance. He testified that the Respondent's fiscal year ended on October 31 and that the statements for the month of October possibly included advice to customers to notify the company accountants or the Respondent of errors in their bills. To show that Curry's attitude had impaired his effectiveness in his job, Bross referred to a chocolate milk contest staged by the Respondent in July 1953. Out of 22 routes participating in the contest 12 or 13, including several smaller than Curry's, showed better results than his. In May 1953 there had been a buttermilk contest in which more than one-half the routes had done better than Curry's. Bross conceded that he had never told Curry that he would be discharged for what he was doing. This, he said, was unnecessary as Curry had been employed long enough to know that it was the Respondent's policy to discharge employees for such conduct. Carl Copeland, Curry's immediate supervisor, testified as to a record he had compiled of bottle breakage by Curry during the month of October 1953. This com- pilation showed a total of 41 bottles of dairy products valued at $10.11 broken by Curry. On 1 day in October, Curry had broken 6 bottles, and had in the same month broken 5 bottles on each of 2 other days. Copeland characterized this amount of breakage as excessive. By way of comparison, he testified that Curry's replace- ment, an inexperienced man, during November 1953 had broken only 23 bottles valued at $5.13. On only 1 day had this replacement broken as many as 4 bottles. The figures relative to Curry's breakages were admittedly prepared by Copeland from company records about a week before the hearing and it was then that he first ascertained how many bottles were actually broken by Curry in October 1953. He could not say how many bottles Curry had broken in any month before then. Asked whether he had cautioned or reprimanded Curry for excessive breakage, he replied that during his last month he had mentioned to him that he should be a little more careful in handling cases. He had never before spoken to him directly about excessive breakage, but the matter had been brought up in a general way at meetings of salesmen. He testified to his observation of Curry's loading opera- tions over the past few months during which he had broken an excessive quantity of bottles. Copeland, however, was unable to furnish information as to the record of broken bottles for any salesman in November or October 1953, other than the data which he had compiled for Curry and his replacement. He stated that no objective standard had been set by which it could be determined what amount of breakage in a month was so excessive as to warrant a reprimand . Whether a sales- man should be reprimanded for breaking bottles depends not only on the number of bottles broken but also on the manner in which he does his loading. All drivers break some bottles in each month, he indicated, but he has never had occasion to reprimand anyone but Curry for this. Copeland had once cautioned Curry about not having sufficient cases in his truck to carry empty bottles. This incident had occurred a few months before Curry's discharge. He testified that Curry had not distributed all the literature to customers which was periodically issued to him. He claimed to have cautioned him about this also a few months before the discharge. He stated without elaboration that Curry had once apologized to him for a disparaging remark. As to Curry's nonattendance of company meetings, Copeland testified that he was not sure, but would say he missed several sales meetings in the last year, and that he had once missed a safety meeting. He could not recall when the safety meeting was held. He never cautioned or reprimanded Curry for missing sales or safety meetings. With respect to testimony given by Curry at an unemployment compensation hearing before a referee of the Georgia Department of Labor,8 General Manager 8 The Respondent's offer in evidence of decisions by a referee of the State of Georgia Department of Labor, Employment Security Agency, denying the claims for unemploy- ment compensation filed by Curry and Doswell against the Respondent as a result of their discharges on the ground that each was discharged for cause was rejected by the Trial Examiner at the hearing. This ruling is in conformity with Board precedent hold- ing that such decisions are not binding upon it and hence are not relevant or material evidence in proceedings such as the instant case See Ace Handle Corporation, 100 NLRB 1279, 1282, Horn Manufacturing Company, 83 NLRB 1177, footnote 4; Union Screw Products, 78 NLRB 1107, 1125. The Trial Examiner did permit Respondent's witness to testify concerning admissions by both Curry and Doswell at these unemploy- ment compensation hearings, and such testimony has been considered with all other relevant evidence in connection with the findings made herein. 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cooper testified that Curry had admitted that "some of the bottle breakage and milk wastage was excessive for him," that he had been "disobedient to the super- visors in that he apologized to his immediate supervisor," and that he had failed to attend a sales meeting because he had overslept. With respect to the testimony by Bross concerning the overcharge to Lieutenant Sawyer, Curry testified in rebuttal that this customer had called the plant to terminate his account because of his transfer, and had been given the amount of his bill as of that date. This information was not passed on to Curry who was unaware of Lieutenant Sawyer's departure and had consequently left milk for him on Septem- ber 26, and 29, 1953, before he was informed by a Mrs. Cook at Sawyer's address that the Lieutenant had gone. Although Mrs. Cook had herself used the milk, Curry left the charge for it on Lieutenant Sawyer's bill and explained the situation to Copeland. As to why Bross could not find Lieutenant Sawyer's customer card when he looked for it, Curry testified that he had pulled it from the file when he learned that deliveries were to stop and he had put the card in Copeland's basket with an appropriate notation thereon. He does not know what hapened to the card thereafter. This he claimed is the method he usually followed in recording such information despite the fact that the Respondent had separate pink cards to be used by its salesmen for such purpose. Concerning the overcharge to Lieutenant Ritts as to which Bross had also testified, Curry stated that Mrs. Ritts had notified him to stop delivery because of her husband's transfer, and had also called in her notice to the plant about a week later. Curry had given her the amount of her bill when she gave him the stop notice and she paid for all milk which he previously had delivered. It seems from Curry's testimony, although this is not altogether clear from the record, that she subsequently told him to resume deliveries. Subsequently she left without informing Curry as to her new address. Curry said he reported the circumstances to his supervisor. He admitted he did not make out a customer card when Lieutenant Ritts first became his customer, but explained that this had been unnecessary as this customer was a transfer to his route, apparently from another route, and the customer's card should have been transferred to his file. He also conceded that he should have made out such a card. He acknowledged that he had failed to fill out the required pink card when the Ritts account was discontinued, but claimed that he had reported the necessary information to his supervisor as required of him at the time. Doswell had worked for the Respondent from the spring of 1947 until his dis- charge on November 4, 1953. For the last 5 or 6 years of his employment he had been a wholesale route salesmen. At the time of his discharge he was under the immediate supervision of Jack Sailors. Wholesale Sales Manager Otto S. Dyess was Sailors' direct superior. According to Doswell, Dyess discharged him in Sailors' presence because of "un- satisfactory work" and "excessive absenteeism." No explanation, he said, was given at the time concerning the manner in which his work had been unsatisfactory, nor, said Doswell, had there been any previous complaint to him about his work. Doswell related that there was no elaboration by Dyess about his absences other than the remark that Dyess had ascertained he was fishing when he was supposed to be absent because of illness. Concerning his absences during the year before his discharge, Doswell testified that his first prolonged absence occurred in the middle of September 1952 when he was hospitalized for a stomach operation and that he did not return to work until January 1, 1953. This absence was approved by Dyess and Sailors who had then told him to go ahead with the operation and not to worry about his job; that it would be waiting for him upon his return. A few days after he resumed work he was stricken with influenza and was out for a week. He worked for 2 or 3 days after he reported back but came down again with the same sickness. Subsequently he contacted pneumonia and was absent from work a couple of weeks. These absences in January and February 1953 were also sanctioned by Sailors. He was next absent during the summer of 1953 because of ptomaine poisoning, and again for 3 days in October 1953 because of an infection following a vaccination. These absences were also excused by Sailors. His last absence occurred on October 25, 1953. On this occasion he requested and received permission from Sailors to visit a sick sister. He returned from his trip on the following Wednesday and informed Sailors he would report for work the next morning. Sailors assertedly expressed surprise at his early return and stated that he had expected Doswell to be gone at least a week. On cross-examination Doswell denied that Dyess had spoken to him when he discharged him about using profanity or about failing to "call back" at retail stores WELLS DAIRIES COOPERATIVE 887 oa his route .9 He further denied that Dyess or Sailors had ever before mentioned anything to him about failing to call back at stores. As to his absences, he agreed that they were "excessive" during the latter part of 1952. Questioned about the fact that sales in his last year were lower than in the previous year Doswell asserted that according to what he had heard from certain other salesmen, sales on his route had not fallen off more than on others. Doswell conceded that he had been involved in three traffic accidents with his truck in the period of a month or two before his discharge. He testified in response to the General Counsel's question that these accidents, which appear to be minor, resulted in no complaints or direct criticism from his superiors. He admitted he did not himself clean his truck daily, but stated that this duty was performed by his helper pursuant to company instructions to the effect that the salesmen themselves were not to clean their trucks. In connection with the discussion in Stratford's Cafe between Doswell and Sailors previously adverted to in section III, A of this report, Doswell related that upon being questioned by the proprietor concerning the reason for his discharge he had replied in Sailors' presence that it was because lie had joined the Union, whereupon the proprietor turned to Sailors and asked, "What about that, Jack?" Doswell testified that Sailors replied, "That is right. I had to let our boy go. I felt mighty bad about it." Doswell testified that he then asked Sailors why he had not been discharged the night before rather than at the early hour of the morning when he had reported for work and Sailors replied, "I did not know anything about it until last night." Curry who, as noted, was also in the cafe at the time corroborated this account by Doswell. Dyess testified that on Friday, October 30, 1953, he had reached his decision to discharge Doswell, but did not inform him thereof until November 4, because Dos- well's supervisor, Sailors, was operating another man's route and was not relieved from his duty until the following Wednesday morning. Dyess denied that Doswell's union activities were a factor in his discharge, or that he was aware at the time of the Union's presence in the plant. According to Dyess he had stated to Doswell when he discharged him that this action was taken because of the continued use of profanity by Doswell in the office and the yard despite the fact that he had been warned against using such language,lo that his work was unsatisfactory, and that he had not carried out his supervisor's instructions. He also reminded Doswell he had warned him about his failure to call back on customers. Dyess related that Doswell had returned from his trip to Texas on the Wednesday before his discharge and that he had met him at the plant when he started for lunch. Doswell then informed him that he had returned late on the preceding night and had not reported for work on that day because he needed sleep. Dyess had remarked, "We were in a tight spot this morning. We had to put another supervisor on your route." With respect to the foregoing inci- dent Dyess testified on cross-examination that it did "not altogether" have anything to do with Doswell's discharge and that he had not mentioned it to Doswell on the morning of November 4. He did however regard it as part of Doswell's absentee record. Concerning his absenteeism, Dyess testified that he had once reprimanded Doswell on this account in March 1953. This reprimand had been occasioned by Doswell's absences because of his illnesses in January and February which, as Dyess recalled, resulted in absences of 30 days in both of these months. The Respondent only grants employees 6 days' sick leave per fiscal year, and his repri- mand to Doswell was in effect notice that if he was not physically able to carry out his job he would have to be replaced. Regarding Doswell's drop in sales, Dyess testified that he had criticized him for this reason less than a month before his discharge and had at the time called for an explanation. Asked whether sales of other men had also dropped Dyess replied that Doswell "was the worst off." He had reprimanded other salesmen when their sales were off, but had not discharged them for this reason. Regarding Doswell's alleged failure to call back at stores, Dyess testified that he had noticed about 2 or 3 weeks before Doswell's discharge that he was checking in from his route between 10:30 a. in. and 1:30 p. m., whereas other salesmen on 9 "Calling back" involved an afternoon trip to stores to see whether stocks of the Respondent's products had been depleted since the first delivery that day and had to be replenished If this were not done and the stores were to run out of the Respondent's products before the end of the day, the danger existed that a competitor would fill the needs of these stores for that day. io Dyess testified that when he informed Doswell of his discharge the latter said, "I know what it's all about, it's about that damn union." Dyess replied that the language he had just used was partly to blame for his discharge. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD similar routes were checking in from to 2 to 7 p. in. Dyess conceded that he does not see all the salesmen when they return from their routes, but was familiar with the time when Doswell returned because it was usually before he went to lunch. He does not know whether Doswell had been returning early before the 2- or 3-week period referred to, and did not mention the matter to him. He did talk with Sailors and then decided to investigate. Dyess did not relate the manner in which he con- ducted this investigation, but stated that he satisfied himself that of all the sales- men on whom he checked Doswell was the only one who failed to call back on customers. Dyess had never received complaints from any of Doswell's stores that he was not calling back. He could not recall that he had talked to the managers of any of these stores and did not think he had asked them whether Doswell was failing to call back. Questioned as to what he meant by Doswell's refusal to carry out his supervisor's instructions, Dyess answered that this involved his failure to call back at stores; also Doswell's faiure to clean his truck. As to this latter item Dyess claimed he had received a report on it from Sailors, but admitted that he had never reprimanded Doswell for this reason and had not mentioned it to him as a reason for his discharge. According to Sailors the decision to discharge Doswell was reached by him and Dyess on Friday, October 30, 1953. He had met with Dyess in the latter's office on that day to discuss the condition of Doswell's route. Sailors had brought up the matter of Doswell's decreased sales and his frequent absences from work. He could not say whether he or Dyess took the initiative in suggesting Doswell's dis- charge, but a consideration of his reduced sales and his early returns from his route led to their conclusion that he must be replaced. Sailors denied knowing at the time that Doswell belonged to the Union or having had any conversation with Dyess relative to Doswell's union membership. He further denied the remarks in Strat- ford's Cafe attributed to him by Doswell following the latter's discharge in which he allegedly expressed agreement with Doswell's comment that his discharge resulted from his union activity, and denied that this circumstance was a factor in the discharge. Sailors testified at first that to his knowledge Doswell had been absent 80 or 90 days during the 1953 fiscal year; that he had often substituted for him on his route during these absences; and that he had brought Doswell's absences to Dyess' attention shortly before his discharge although he did not direct Dyess to all of them. According to his recollection Doswell had been absent some days each month from January to October 1953. He testified that he did not have a daily attendance record, but promised to produce Doswell's "check-up sheets" from the Respondent's office which Sailors said would indicate the dates when Doswell was absent from work. At a later stage in his testimony, Sailors testified that these records showed a total of 121 days absences and produced a compilation therefrom, which was received in evidence, listing the following absences in the 1953 fiscal year: Days November 1952_____________ 25 May 1953 ------------------ December 1952_____________ 26 June 1953__________________ January 1953_______________ 19 July 1953__________________ February 1953______________ 10 August 1953 ________________ March 1953________________ 9 September 1953_____________ April 1953_________________ 8 October 1953_______________ Days 8 5 3 8 3 5 Excluding Doswell's 6-day vacation period in August, the compilation totals 123 days of absences during the period in question. It developed from Sailors' testi- mony, however, that the checkup sheets from which the foregoing compilation was prepared were not a sufficiently certain record of Doswell's absences to warrant reliance upon them as proof thereof. Actually, these sheets merely showed that on certain days the final checkup figures normally inserted thereon by the salesman upon completion of his route had been inserted on Doswell's sheets by others. Sailors claimed he had reasoned therefrom that this revealed Doswell's absences on these days. It turned out this was not necessarily so. Respondent thereupon with- drew its offer of the compilation as proof of absences for 121 complete days, and offered it merely to show that on the days designated therein Doswell's checkup sheets had been prepared by other persons. Sailors then fell back on his original estimate that Doswell's absences for fiscal year 1953 totalled 80 to 90 complete days. Sailors further testified that he had spoken to Doswell several times about his numerous absences, and that he had last reprimanded him concerning this matter in the latter part of June or early in July 1953, when Doswell had suffered his WELLS DAIRIES COOPERATIVE 889 attack of ptomaine poisoning. He claimed he was impelled to bring up this matter because other salesmen were complaining about Doswell 's absences. He claimed he had also reprimanded Doswell about October 15, 1953, for his failure to clean his truck, and further claimed that before then he had reprimanded him once or twice for the same reason. Although he could not state definitely when these other reprimands occurred he believed that there was such an occasion between 1 and 2 months before his discharge . While he had reprimanded other employees for failing to clean their trucks, only Doswell failed to heed such a reprimand. Once, Sailors said, he had himself washed Doswell's truck. This occurred about October 15 or 20, 1953. Sailors asserted that he had also reprimanded Doswell about his loss of business, and 'had raised this subject about 3 or 4 months before October 1953. Doswell had then explained that people were just not coming to town . Sailors produced data comparing sales by Doswell on his route for the months of May to October in 1952 and 1953. 11 Sales data covering the same periods for the 3 routes bordering on Doswell's route show that one had a slight increase in 1953 of less than V2 of 1 percent, another had an increase of about 10 percent, and the third had a decrease of about 2 percent. No comparisons were made with other wholesale routes although the Respondent had 22 such routes. While some of these other routes for which no data was presented had sustained sales losses for 1953 as compared with 1952, it was Sailors' recollection that they had not fallen off more than S or 6 hundred dollars and none had losses comparable to Doswell's. Doswell's route contained about 32 stops in 1952 of which 5 or 6 were grocery stores, 2 were mills, and the balance were cafes and movie theaters. Sailors was uncertain as to the number of customers in the route during 1953 and estimated them to be the same as in 1952 plus or minus three. None of the three routes which bordered on Doswell's route were supervised by Sailors. He testified that 1 of the bordering routes had 48 to 50 customers in both 1952 and 1953 consisting of 5 cafes, 1 mill, and grocery stores. He did not know the number of customers serviced by either of the other two routes bordering Doswell's, or the type of customers which were included in these routes. Although Sailors was of the opinion that the Respondent's current business on the whole was up, he could not remember whether in an earlier unemployment compensation hearing involving a claim by Doswell he had testified that he did not blame Doswell for his decrease in sales because it reflected the Company's current business status. He stated that he did not think that he had so testified . In his opinion Doswell's sales' loss resulted from "not looking after the products , not keeping it properly displayed and not looking after each customer." Concerning Doswell's failure to call back at customers, Sailors testified that about the middle of September 1953, he had noticed that Doswell was returning from his route "mighty early" at about 10:30 a. in. While he received no complaints from Doswell's customers that he was failing to call back, Sailors did receive calls from them that they were out of milk or butter. A call was received from one grocery store in about the second or third week of October that it was out of milk, a call came from another grocery store "somewhere within a month"; calls for butter (for making popcorn) came in several times "over a period of 3 or 4 months," the last call from a theater having been made in the latter part of September or the first part of October. Doswell, he said, was instructed by him to call at these theaters 3 times a week and was supposed to call at stores 2 or 3 times daily. Several times he reprimanded him for not doing so within a month or less of the date of his discharge. He also regarded all deliveries which he made pursuant to customer calls as having the effect of a reprimand to Doswell even though he did not reprimand him verbally. Sailors conceded that a call from a grocery store customer for replenishment of its milk supply could be attributable to a rush of business as well as to lack of attention by the salesman to its needs. However, he reasoned , repetitive calls from a customer for additional milk indicated inattention by the salesman. These are Doswell's comparative sales figures for 1952 and 1953. 1952 1953 May_________________ $9, 027 99 $8,781.47 June_________________ 9,686.77 9,099.89 July_________________ 10, 666, 64 9,680.31 Aug----------------- 11, 510. 65 9,960.18 Sept----------------- 10, 516. 77 9,019.92 Oct------------------ 11, 995.35 9, 214.58 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sailors further testified that be was present at a hearing before an unemployment compensation referee of the State of Georgia and heard Doswell admit that he had been excessively absent from work. General Manager Cooper testified similarly. ' In rebuttal Doswell denied that he had been finishing his work each day too soon or that he had ever been reprimanded for this reason or for failing to call back at his customers. His testimony at this point with respect to his "call back" practice is not clear, but it appears that he checked back at his store customers at most only once or twice a month on Saturdays, sometimes on Fridays, near the first of the month. Otherwise, he said, he left enough milk during his first stop both on the store counter and in the cooler at the rear of the store to insure an adequate supply for the day. If because of heavy sales the stores ran out of milk and called the plant for additional supplies, it was his responsibility to make the delivery provided he could be reached at his home. Otherwise it was up to the shipping department to make the delivery. He testified about an occasion 3 or 4 months before he was discharged when he was contacted at his home after 2 p. m. on a Saturday to deliver milk to a store and that he had made the delivery in his own car. Concerning calls from his theater customers for additional butter, he testified that this generally occurred on Sunday nights and that the Respondent had a special delivery truck to meet such demands. The theaters had limited storage capacities and he relied upon them to advise how much butter to leave. In explana- tion of his decreased sales in 1953, he testified that he had lost one of his grocery customers because of cancellation of its lease, and that he had lost a restaurant account because the Respondent would not extend credit. In addition, the reduc- tion in the number of soldiers stationed at Fort Benning in 1953 had resulted in a curtailment of business done by his cafe customers which in turn affected his sales to them. Some of these cafes, he pointed out, were largely dependent on business from personnel stationed at Fort Benning. One other circumstance relative to Doswell's discharge requires discussion. Gen- eral Manager Cooper testified that in 1953 the Respondent ordered physical exami- nations of all its employees for the first time. These examinations started in the fall and were not fully completed at the time of the hearing in January 1954. Apparently the examinations were conducted in compliance with the requirements of a local ordinance which necessitated annual issuance of health cards to employees of employers such as the Respondent who sell food products for human consump- tion. Doswell's serological report, dated October 14, 1953, and received by Cooper on October 15, 1953, revealed a positive Kahn reaction. Cooper thereupon con- tacted the office of the doctors who issued the report and spoke to a nurse who shared his opinion that in view of the public's attitude towards syphilis it would be inadvisable for the Respondent to retain in its employ any employee with a history of this disease. Cooper was uncertain of the date of this conversation. He thought at first that it had occurred within the week after he had received Doswell's report. Then he indicated it could have happened anywhere from 1 to 3 weeks later. At any rate, he said, it occurred before Doswell's discharge. He was certain Doswell was not discharged because of his medical history. On the other hand one employee with a positive syphilis report was discharged on this account on October 21, 1953. Two other employees with similar reports were discharged on December 5 and 7, 1953. Cooper pointed out that when Doswell's report was received the Respondent had not yet established a policy regarding retention of employees with syphilis histories. Subsequently, the Respondent did establish a firm policy of refusing to hire or retain in its employ any person with a history of this disease. Cooper believed this policy became operative in the early part of November 1 to 3 weeks after Doswell's discharge. Doswell, he indicated, would have been discharged pursuant to this policy had he not already been discharged for the reasons asserted by the Respondent in this proceeding. Cooper further testified that it is the respon- sibilitv of the Respondent's supervisors to see that the employees under them periodically obtained their health cards. In Doswell's case, Cooper said, it was Dyess' responsibility to make certain he had his card. Cooper stated that he had not told anyone in the Respondent's organization about Doswell's report. With reference to his syphilitic condition, Doswell testified that he had known of it for years before he was first employed by the Respondent and that it had been discovered upon examination by health authorities at that time He was then advised by the clinic nurse that his syphilis was not active and that treatment was consequently not necessary. A health card was issued to him. He related that he had retained his health card following his examination and report in October 1953. He received shots from the nurse in the examining doctor's office who indi- cated that he had received adequate curative treatment. Doswell said he reported WELLS DAIRIES COOPERATIVE 891 this to Cooper who told him to "go ahead," and suggest that he take up the matter with Sales Department Supervisor J. 0. Riley. Doswell did not thereafter speak to Riley about this subject. Both Curry and Doswell testified that 2 days after they were discharged they returned to the plant to speak to Riley about recommendations from him for employ- ment. Riley, they stated, was unwilling to furnish them written recommendations but told them that he would orally give "good" recommendations to prospective employers. Riley was not called to testify by the Respondent. 2. Findings as to the discharges of Curry and Doswell The General Counsel's evidence presents a strong prima facie case of unlawful discrimination against Curry and Doswell. Leading the formidable elements sup- porting the 8 (a) (3) allegations of the complaint are the uncontroverted facts that Curry and Doswell together inspired and led the union movement among the Respondent's employees, that they were simultaneously and precipitately discharged without any indication that such action was being contemplated, and that their discharges were effected within a few days after the start of the Union's activities at a time when the organizational drive was gaining momentum. These facts are given added meaning and point more definitely towards an unlawful motive when viewed against the background of coercive conduct herein found to be violative of the Act resorted to concurrently with the discharges by the Respondent's super- visors in their effort to impede the Union's progress. Knowledge by the Respond- ent of Curry's and Doswell's leadership of the Union's campaign is an indispensable ingredient of the General Counsel's case. The record contains adequate proof thereof. The courts and the Board have long held that an employer's knowledge of union activities by its employees is inferable where these activities are conducted in a small plant,12 particularly where as here there is evidence of probing by super- visors to obtain information concerning the union activities of employees. While in my opinion a plant the size of the Respondent's with a complement of 200 em- ployees is not so small as to warrant an inference of knowledge from this circum- stance alone, the fact is that Curry's and Doswell's union activities started and were initially concentrated among the Respondent's salesmen who, according to this record, were about 50 in number. In this connection, I have taken note of the Board's decision in the representation case involving the Respondent's employees, adverted to in section I of this report, in which the Board held, in accord with the Respondent's contention in that case, that its driver-salesmen (referred to as sales- men in the instant case) and their helpers 13 do not have a sufficient community of interest with other plant employees to warrant their inclusion in a plantwide unit with the other employees.14 Stated affirmatively, the Respondent's salesmen and their helpers are a distinct group with special interests clearly setting them apart from all other employees in the plant. It is reasonably inferable that the activities of the two outstanding proponents of the Union within this relatively small group came to the attention of the supervisors who headed it. In drawing this inference I have been particularly influenced by the delving curiosity of Respondent's super- visors over this group in the union activities of employees under them as evidenced by the instances of interrogation and surveillance found to have occurred at the time of the discharges. To overcome the force of the General Counsel's prima facie case, it was in- cumbent upon the Respondent to go forward with proof at least equally persuasive as that presented by the General Counsel negating the inference of unlawful conduct flowing therefrom. In my view the Respondent has failed to accomplish this ob- jective. My reasons for this conviction are set forth in the following analysis. Concerning Curry's discharge, it should be noted that the moving cause assigned by Bross for this action was the complaints about overcharges received from cus- tomers on November 2 and 3, 1953. In effect, these complaints were the straw that broke his tolerance of Curry's past provocations. In relating his experience with Curry over the months preceding his discharge Bross depicted himself as abid- u Quest-Shon Mark Brassiere Co., 80 NLRB 1149 ; enfd. 185 F. 2d 285 (C. A. 2) ; cert. denied 342 U. S. 812; Stokely Foods, Inc, 91 NLRB 1267; enfd. 193 F. 2d 736 (C. A 5). u The Board found that the Respondent employed 57 driver- salesmen and 20 to 23 helpers. The Respondent contended that these helpers were not its employees. u The Board found that "there is no interchange of work, and virtually no contact, be- tween the driver-salesmen and the helpers on the one hand, and the production and main- tenance employees, on the other." 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing with consummate patience his numerous faults, and willing even to suffer the personal indignities inflicted upon him by Curry. Assuming that Bross had fairly and accurately recounted these many failings, and that his forebearance of them in the hope that he would thereby make a better man of Curry, truly reflected his self-styled "kid gloves" and "love and affection" approach, the expectation is irre- sistible that the abandonment of his hope and patience came about as the result of some new misdeed of serious proportions. The circumstance which hardened his attitude toward Curry does not, however, achieve this expectation . Viewed singly or collectively, the complaints of November 2 and 3 do not impress me as being-of sufficient magnitude to have induced-the precipitate discharge at 4 a. m. on November 4 of an employee with Curry's- years of service, notwithstanding. the past derelictions attributed to him by Bross and Copeland. All that was newly involved at that moment was a matter of overcharges to 5 out of Curry's 600 to 650 customers for a few bottles of milk, a half pint of whipping cream, and a half pound of butter. In terms of money only trifling sums were involved requiring slight adjustments in the accounts of the few aggrieved customers. The swift and severe punishment meted out by Bross in the circumstances would have been abnormally harsh for the ordinary employer or supervisor. In view of the restraint and con- sideration which Bross had attributed to himself in his relations with Curry, it was completely unexpected and out of character. Strangely, while these customer complaints assertedly triggered Bross' action, and although he indulged in an elabo- ration of various derelictions when he told Curry why he was being discharged, Bross merely mentioned the matter of overcharges without disclosing the names of the complaining customers or discussing details, and this despite Curry's request at the time for such information. Thus, Curry's discharge was accomplished, accord- ing to Bross, for a principal reason as to which Curry was foreclosed, because of information denied him, from even attempting to satisfy Bross by explanation that he was blameless or that there might be extenuating circumstances to save him from his unforewarned discharge. In my view, this swift and severe action is incompatible with the explanation therefore advanced by Bross, and points toward a sudden desire to get rid of Curry as hastily as possible for the reasons I have drawn from the General Counsel's evidence. In reaching the foregoing conclusion I have not commented on the accuracy or validity of the faults charged by Bross and Copeland to Curry in the several months preceding his discharge. My analysis of the evidence regarding these matters con- vinces me that their appraisals of Curry's asserted derelictions and the account of their distressed reactions to them were for the most part exaggerated in order to support the theory relied upon in justification of his discharge; that while Curry may not have observed all of the requirements of his job and did deviate from some of the rules governing his work, these failings were largely condoned, or from all indications were not regarded so seriously as to warrant a belief that because of them Curry's tenure was imperiled. I am further satisfied some of the complained of acts were not committed. In assigning "insubordination" and "unsatisfactory" performance as reasons for Curry's discharge, Bross apparently meant these terms to apply to the same conduct. No evidence was presented to show a deliberate refusal to carry out a direct order from a superior. Bross relied on the other hand on Curry's asserted failure to carry out the Respondent's instructions and rules governing his duties as proof of both insubordination and unsatisfactory performance. With these criticisms Bross blended the accusation that Curry's poor attitude and indifference towards his work in the last few months before his discharge resulted in a deterioration of his route. Specifically, he testified that "in the last few months he was on the road (Curry's) route began to go down." I find the record lacking in the sort of evidence which would lend substance to this testimony. There is nothing to show that Curry had failed to live up to the outlook, if there were one, that his sales would increase, or that his sales had dropped through fault on his part. Except for the matter of the overcharges, heretofore discussed, there is no evidence of customer complaints re- sulting from Curry's inattention to duty or failure to render pleasing and efficient service. In fact the record contains no evidence at all, except as to the matter of the overcharges, to establish Bross' claim that Curry had "mistreated" his custom- ers. Bross did mention the May 1953 chocolate milk contest and the July 1953 buttermilk contest, 6 and 4 months respectively before the discharge, as examples of Curry's indifference to his duties as a salesman, but all that this testimony signi- fies is that some salesmen did better in these contests than Curry and that he in turn did better than others, and there is no indication that he was ever criticized for his performance in these contests. Significantly, the Respondent's brief places no reli- ance on this matter in support of the defense to this proceeding. WELLS DAIRIES COOPERATIVE 893 Regarding the matter of the compulsory sales and safety meetings, I find on the basis of Curry's credited testimony that he had missed only one safety meeting 3 or 4 months before his discharge, and that in 6 years he had only one unexcused absence from a sales meeting. I observe at this point that Curry impressed me as a frank and cooperative witness whose testimony I regard as generally reliable. Bross, by contrast, was a prolix witness with an inclination toward overstatement which generally detracts from the reliability of his testimony. I do not credit his version of these events, as to which he admittedly had no records , that Curry had missed 4 or 5 safety meetings in the 9 -month period before September or October 1953. Reliance on Curry's testimony as to his attendance of sales meetings is predicated also on Copeland's unsureness of the extent of Curry's absence there- from, and the fact that Copeland never cautioned or reprimanded him for absence from these meetings . I do not regard it as likely that Copeland would have had a feeble recollection of a matter viewed so critically in testimony by him and Bross, or that in this circumstance he would have permitted Curry's absences to escape without reprimand, if in fact his absences were as frequent as asserted. As to non- attendance of safety meetings, I have noted Copeland's contradiction of Bross and his agreement with Curry that he was aware of only one absence on his part from these meetings. Copeland could not even recall when this absence occurred so it is not probable that it influenced the decision to discharge Curry. As to criticism of Curry's breakage or handling of equipment, it is significant that the statistics which Copeland used to validate his criticism were compiled long after Curry's discharge and were not known by Copeland at the time of this event. While he was aware of the 3 occasions in the month preceding Curry's discharge when he had twice broken 5 bottles and once 6 bottles, these quantities do not loom large and evoked no more than a mild reminder from Copeland to Curry on Oc- tober 1, 1953, "to be a little more careful in handling the cases." While Copeland did claim that he had observed excessive breakage by Curry over a period of a few months, it is again noteworthy that he could present no specific data for this period. I believe that if Curry's breakages had impinged on the decision to discharge him, Copeland would have been better informed on the subject. Bross vaccilated so much over whether he had admonished Curry for careless handling of bottles that I completely disregard his testimony on this matter. Thus, he testified first that he had asked Curry to be more careful, next that he did not speak to Curry about breakages but that Copeland had done so, then that he had talked to him "in general about the breakage," and finally that he had spoken to Curry "the last time" about October 1, 1953, when Curry had broken about 5 bottles of chocolate milk. Curiously, while the Respondent had records of breakage by its salesmen on the reports made out by its shipping department, and although Bross asserted that his attention was directed to Curry's carelessness from his inspection of these re- ports, these records were not produced in evidence. It seems to me that the most convincing method by which Curry's record for breakage could have been established would have been through introduction in evidence of these shipping department re- ports. I take the Respondent's failure to do so as indicative of the fact that they would not have supported Bross' testimony as to what they contained. The Respondent's brief relies on Curry's admitted failure to post customer ac- counts in the Respondent's prescribed manner as a reason for his discharge. I do not believe it had anything to do with it. The record contained no evidence to show that Curry was ever admonished for his posting methods. His testimony that he posted accounts in the manner in which he was taught (presumably by a super- visor or an experienced employee) was unchallenged, and it would appear that he had followed this procedure without criticism in all the years of his service for the Respondent. It seems highly improbable that after all these years his posting methods became a compelling factor in the decision to discharge him. Actually, neither Bross nor Copeland testified that this was a motivating factor for the dis- charge, and I am satisfied that it was not considered by them as a reason for their action against Curry. Nor do I believe that failure to prepare the required customer and change-of- status cards influenced Curry's discharge. Curry candidly admitted he was at fault in not making out a new customer card in the case of Mrs. Ritts, and that he did not uniformly comply with the rule for reporting changes in customer status on the Company's pink cards specially provided for this purpose. Apart from Bross' unconvincing generalization that he did not see Curry fill out "a blank card in the last 2 or 3 months he was there," there was no evidence of specific instances, other than the Ritts case, to show that he did not make out customer cards. I credit Curry's testimony that he observed the Respondent's requirement as to the prepara- tion of such cards. While Bross testified that Curry "usually had to be cautioned" 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about not reporting transfers of customers from his route to others, presumably on the pink cards, it appears that Copeland had never questioned or criticized Curry for employing the method he used to convey such information. I do not believe that the supervisor directly concerned with Curry's deviation from the company rule would not have objected to this procedure if it had been seriously regarded by him. I am not persuaded that Curry's sudden discharge in the seventh year of his employment stemmed from his failure strictly to abide by this rule. Turning to the complaints against Curry which may be categorized as offensive conduct to superiors, there appears to have been only one incident involving provoca- tion of Copeland. As related above, this incident consisted merely of the criticism by Curry of lack of interest on his supervisor's part in not riding with him over his tornado-stricken route. Granting that Copeland's rebuke for this comment was merited, the incident occurred 7 months before the discharge and appeared there- after to be a closed matter. Bross' only reference to Curry's disparagement of him consisted of the "big shot" appellation by which he said Curry designated him in discussion with other employees, and he testified that he voiced his displeasure to Curry about this in "just a general conversation" about 3 months before the discharge. There is nothing in the record to show that Bross' friendly advice on this occasion to Curry as one of his "oldest men" not to run down his superiors went unheeded. As to the objection that Curry constantly bypassed his immediate superiors by taking, directly to Sales Department Supervisor Riley, matters which should have been channeled through Bross and Copeland, Bross related only one occasion when he was prompted to speak to Curry about this practice. This involved the erroneous charge of bottle shortages to Curry about which he admittedly had gone to Riley. Bross conceded that this incident which occurred a month or two before the discharge was not thereafter repeated. So far as Bross' description of Curry as a "chronic griper" is concerned, the only illustration offered by him to justify this characterization was the incident involving the change in Curry's loading time which occurred several months before the discharge. I deem Curry's version more logical and credible, but even accepting Bross' version I do not find valid basis therefrom for terming Curry a "chronic griper." Nor am I convinced from Bross' testimony that Curry always took the position when confronted with customer claims of overcharges that he was right and the customer wrong that this reflected improper belligerence. Curry conceded that in some instances he took the posi- tion that the customer was wrong, and for all the record shows the customers may have always been wrong. I do not perceive any merit to Bross' condemnation of Curry's staunch defense of his accounts without proof that he stubbornly or defi- antly maintained his position when confronted with evidence of his errors. I am not persuaded that these isolated incidents of alleged disrespect, disparagement, or improper attitude towards superiors which occurred one or more months before November 1953, and which appear to have been passed off in a friendly manner or with no comment or warning to indicate a continuing resentment, were operat- ing factors in causing Curry's discharge. Because Bross' and Copeland's testimony that Curry did not distribute company literature as required is not refuted, I find that Curry was remiss in failing to carry out this duty. I deem it normal and probable for a supervisor to point out to an employee his clear failure to perform his duty. Accordingly, I am satisfied, despite his denial, that Curry was cautioned about not distributing literature. Bross did not indicate when he had cautioned Curry about this matter, but Copeland believed he had done so a few months before the discharge. I also find, because Copeland's testimony in this respect was not denied, that he had once, a few months before Curry's discharge, cautioned him about not having sufficient empty cases in his truck to carry empty bottles. These reprimands occurring months before November 4, 1953, also do not impress me as operating factors for the dynamic action of that day. The circumstances relating to Doswell's discharge, as in Curry's case, also point convincingly toward the Respondent's hasty desire to get rid of him because of his activities as the other union leader in the plant. The notable coincidence of his discharge with the Union's burgeoning campaign becomes doubly striking upon consideration of the abrupt removal of Doswell by one set of supervisors while at the same time his fellow leader in the Union was being dealt out by other super- visors. The exceptional timing of this event has not been satisfactorily explained. Dyess' testimony that Doswell's notification came on the morning of November 4, 1953, because his supervisor, Sailors, was operating another man's route and was not available until then was contradicted by Sailors who denied that he had oper- ated another's route the day before the discharge. The fallacy of Dyess' explana- tion is clearly demonstrated by Sailors' admission th 't he had joined Doswell on WELLS DAIRIES COOPERATIVE 895 his route on November 3 on the occasion when he interrogated him concerning the Union. I find also from Curry 's credited testimony that Sailors, in answer to Dos- well's query in Stratford's Cafe, admitted that he had not known of the decision to discharge Doswell until the night before the morning of November 4. I there- fore reject testimony by both Dyess and Sailors that the decision to discharge Dos- well was reached by them during a conference on Friday , October 30, 1953, but was not put into force until November 4 because of Sailors ' unavailability before then, and also find that Sailors did not know of the decision to discharge Doswell until shortly before it was made effective at 4 a. in. on November 4. Thus, by the swift and decisive action of that hour the Respondent expelled from its plant both of the Union's instigators and leaders. Considering the speed with which Doswell 's removal was accomplished and the fact that his discharge so far as he was concerned was totally unanticipated, the assumption is reasonable that if this urgent procedure was compelled by legitimate reasons, some incident involving grievous misconduct must have occurred which merited application of immediate and severe discipline, or that a condition existed in which any delay in getting rid of Doswell would have been seriously detrimental to the Respondent's business interests. I find no basis in the record for belief that either of these considerations compelled the Respondent 's sudden action against Doswell. On the other hand, the timing of his discharge and its precipitate charac- ter are decidedly compatible with the view that it was part of the Respondent's unlawful conduct directed against the Union occurring immediately before and after Doswell's and Curry's discharges, including Sailors' interrogation of Doswell the day before his discharge , and the other acts of interrogation , coercive statements, and surveillance hereinabove found to have occurred within hours after the discharges. A consideration of the reasons relied upon by Dyess and Sailors for Doswell's discharge reinforces the foregoing conviction . First as to Dyess' assertion that Doswell's profanity was a factor influencing his discharge , with all due respect to Dyess' delicacy of language , I believe it highly unlikely that Doswell's alleged speech to Dyess on the occasion of his discharge , in which the strongest reference was to the "damn union," contained words which if used before in the course of his em- ployment would have jeopardized his job. Equally unpersuasive are the claims that Doswell's three traffic accidents and the failure to clean his truck were motivating factors. As to the accidents, there is not a shred of evidence to show that either Dyess or Sailors had ever been concerned about them So far as the record , tows Dyess had never spoken to Doswell about the accidents , and the complete absence from his testimony of reference to them strongly indicates that they did not influence his decision to discharge Doswell . Aside from Sailors' testimony that he prepared Doswell's accident reports and knew about the accidents, there is nothing from him to show that he had ever blamed Doswell for his involvement in them, or had ever critically discussed them with Doswell or others . Even General Manager Cooper failed to challenge Doswell 's testimony that he had not been critical of his involve- ment in the accidents . This mild official reaction to Doswell's accidents does not square with any argument that Doswell 's discharge about 2 months after his last accident was in any way related to them . Concerning the matter of cleaning the truck it is clear that Doswell did not himself perform this chore , but left it to his helper who apparently failed to do this job to Sailors' satisfaction , with the result that on 2 or 3 occasions he had reprimanded Doswell therefor and once, 2 or 3 weeks before the discharge , washed Doswell's truck himself. I am convinced that this circumstance could and probably did irritate Sailors. I do not believe , however, that it was regarded either by Sailors or Dyess as a reason for discharging Doswell. Neither mentioned this matter to Doswell when he was discharged, and it does not impress me as a sufficiently momentous grievance against an employee with 6 years' service to bring about his sudden and unforewarned discharge. Of more serious import were the other reasons assigned by Dyess for the discharge. Chief among them were the matters of Doswell's absences from work , his declining sales, and his failure to call back on customers . Dyess testified that he had repri- manded Doswell on only one occasion for excessive absenteeism and this occurred in March 1953 , at least 8 months before the discharge. According to Doswell's credited testimony his absences up to then were for reasons of health and were sanctioned by both Dyess and Sailors who encouraged him with the comforting assurance that his job would be waiting for him upon his physical recovery It would indeed be surprising for the supervisor who had shown such humane con- sideration to a sick employee to "reprimand" him for his absences upon return to work. Yet this is what Dyess claims he did. But assuming that Dyess had in the interest of the Respondent pointed out on that occasion in March 1953 that the reason for Doswell's extensive absences from work was inconsequential and all 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that mattered to the Respondent was the inconvenience to it resulting therefrom, the fact remains that this discussion took place 8 months before the discharge, and Dyess on no subsequent occasion mentioned Doswell's absences to him. I credit Doswell's testimony that all of his subsequent brief absences for illness and to visit his sick sister were with Sailors' permission. It seems utterly implausible that absences which were accepted by supervisors as justified, and which were excused by them at the time, should many months after the occurrence of the greatest part of them become a compelling reason for a discharge. In rejecting these absences as a reason for Doswell's discharge I have also considered the abortive effort of Sailors to enlarge upon Doswell's absentee record by resort to the checkup sheet entries. I construe this as a poorly conceived attempt to magnify Doswell's absences to bolster the defense to this proceeding, thus detracting from the bona fides of that defense and reflecting detrimentally on the general reliability of Sailors' testimony. In this connection I discredit Sailors' testimony that he had several times reprimanded Doswell for his absences. It may well have been as he also testified that he "talked" to Doswell about this matter, but mere discussion is not to be equated with repri- mands. In any event, Sailors conceded that he last talked to Doswell about his absences in June or July 1953, several months before the discharge, and I am not persuaded absent some intimation of warning in this discussion that Doswell's prior excused absences became a factor in his discharge. No doubt exists that Doswell's sales 6 months before his discharge and particu- larly in his last month, had significantly decreased in comparison with correspond- ing periods in the preceding year. The question for decision, however, is whether this circumstance induced his discharge. Dyess testified that he had criticized Doswell within a month before his discharge because his sales were off. He gave him no indication however that his tenure was in the balance because of this circum- stance. All that Dyess required on this occasion was an explanation for Doswell's trouble. He did not testify that whatever explanation he may then have received failed to satisfy him. Nor does there appear to have been any word of warning by him that Doswell's falling sales might result in a discharge. In their account of the evolution of their decision to discharge Doswell in the course of the October 30 conference no thought had previously been given by Dyess and Sailors to such action. Thus, it appears that not until that date were Doswell 's sales regarded by his supe- riors as presenting a situation which called for his prompt dismissal. In this cir- cumstance, I would ordinarily find it difficult to believe that they formed a resolute determination on that occasion to discharge Doswell without warning. My con- viction that this did not occur, however, is not entirely dependent on such reasoning as I have already found from Sailors' admission that he did not know of the decision to discharge Doswell until the night of November 3 In finding that Doswell's discharge was not agreed upon by Dyess and Sailors on October 30, following their discussion of his fallen sales, I have considered the fact that the decrease in Doswell's October 1953 sales from his October 1952 sales was greater than in preceding months. I fail, however, to appreciate the special significance which the Respondent attaches to the comparison between 1952 and 1953 sales figures. Such a naked comparison can well be misleading. It leaves out of account, for example, the fact that Doswell's October 1953 sales were greater than his sales in the preceding month, a circumstance which would ordinarily be regarded as showing improved results. It does not explain why in September 1953 the Respondent did not react to Doswell's results as it claims to have done in October, despite the fact that his September sales dropped more sharply from the previous month's level than in any other month from May to October 1953. Nor does such a naked comparison permit consideration of Doswell's explanation of the drop in his 1953 business, as compared with 1952 sales, although his explana- tion carries a rational appeal which the Respondent did not directly attack. Such evidence that the Respondent did present to confute Doswell's defense of his sales record also involves an uncertain statistical comparison which cannot serve its in- tended purpose. Thus, Sailors presented a comparison between Doswell' s sales and the sales for the 3 routes which bordered on his without a showing that the 3 bordering routes were comparable to Doswell's in number and types of customers. Such meager information as Sailors possessed on this essential subject affirmatively demonstrated the danger and futility of relying on this comparison. Thus while Doswell's route included only 5 or 6 grocery stores with the balance of his approxi- mately 32 customers consisting of cafes, mills, and movie theaters, bordering route No. 8 consisted of about 43 grocery stores, 5 cafes, and 1 mill. Obviously, cur- tailment of the size of the Fort Benning military establishment upon whose person- nel Doswell's cafe customers had depended for business could cause a substantial drop in his sales to these customers, whereas this factor might not significantly affect total sales for route No. 8 which had far more store customers than cafes. WELLS DAIRIES COOPERATIVE 897 The same could well have been true of the other two routes incorporated in Sailors' statistical comparison . Sailors professed ignorance of this necessary information and it was nowhere else supplied by the record . No reliance may therefore be placed on these statistics . Moreover, because the foregoing statistical comparisons are such palpably unreliable and invalid measures of Doswell's performance, I do not believe that Dyess or Sailors were influenced by them in deciding to discharge Doswell. Finally, I have considered the testimony by Sailors and Dyess to the effect that Doswell's failure to call back daily at his customers motivated his discharge. Al- though I find that Doswell did not make daily callbacks, and that he did in this respect expose himself to discipline , 1 am not persuaded that his discharge sprang therefrom. In the circumstances of this case, and with emphasis on my finding that Doswell's discharge was not decided upon at the October 30 conference and that Sailors was unaware of this decision before the night of November 3, it would require clear cut evidence to prove that Doswell's violation of the callback re- quirement contributed to his discharge . Some evidence of a specific warning from his supervisor conveying a clear implication of resort to disciplinary measures for not heeding the warning would have satisfied me that Doswell 's callback practice was so seriously regarded that it operated as a cause in his discharge . The record does not present such evidence. Dyess seems not to have mentioned the matter of callbacks to Doswell at all. While he spoke of an investigation by which he determined that Doswell was the only salesman not making callbacks , he appears to have done none of the things which such an investigation would normally entail, such as contacting the stores serviced by Doswell to find out from the store man- agers whether Doswell was failing to call back and how his failure in this respect affected sales of the Respondent's products . I do not believe that Dyess conducted an investigation in the true sense of this term . While Sailors claimed to have reprimanded Doswell several times for not complying with instructions to call back he could relate only two instances when stores required replenishment of the Re- spondent's products, and further acknowledged that these calls could have resulted as well from a rush of business for which the salesman would not be responsible as from the salesman's inattention to his duties. This is not consistent with Sailors' claim of several reprimands automatically flowing from such calls from customers. I credit Doswell's denial of these reprimands from Sailors'. Sailors also conceded that there were no complaints from customers that Doswell was failing to call back. Although he critically referred to occasions when Doswell 's theater customers made calls for butter, no violation of the callback requirement appears to have been involved, especially in view of Dyess' testimony limiting callbacks to grocery stores. In any event, Doswell's explanation of the manner in which he serviced his theater customers convinces me that Sailors had no valid basis for reprimanding him there- for, and that Doswell's discharge was not related to this circumstance. In sum, as I view the evidence with respect to Curry's and Doswell's discharges I find that their employment records portray occasional imperfections in perform- ance, deviations from working rules, and brushes with superiors not uncommon in enduring working relationships . Had the Respondent for any of these reasons terminated their employment , it would with full legal impunity have been privileged to do so, for it is not to be doubted that an employer is free to discharge his employee for any reason not proscribed by the Act, or for no reason. I find, however, that these were not Respondent's reasons for the discharges , but that the actions against Curry and Doswell resulted from their activities in behalf of the Union. This was violative of the Act. The impression is unavoidable that until the advent of the Union in the Respondent 's plant under the joint leadership of Curry and Doswell, their complained of acts or delinquencies were either tolerated without comment, or if regarded as objectionable evoked mild criticism or casual comment with no intimation whatever that at some future time they would con- stitute the basis for the abrupt discharges which the Respondent asserts resulted from them. The sense underlying this appraisal of the Respondent's motives for the discharges is cogently revealed in language of a recent decision of the United States Fifth Circuit Court of Appeals . In Magnolia Petroleum Co. v. N. L. R. B., 200 F. 2d 148, 149, a case involving issues comparable to those present in the instant proceeding, the court discussed the employer 's real reasons for the discharge of an employee and said: A careful examination of the evidence for ourselves leaves us in no doubt: that there is evidence supporting the view . . . that Duncan was, to some ex- tent, unruly and a trouble maker; and that if the petitioner had discharged him for those reasons or for no reason at all, provided the discharge was not 338207-55-vol 110-58 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for, or connected with, union activities, the fact that he belonged to the union would not have prevented his discharge or entitled him to reinstatement. There is other evidence, though, which not only supports, but we think estab- lishes as correct, the view the Board took; that, until the union issue arose, these complained of acts of his were all condoned and would have continued to be condoned, and that the straw that broke the back of petitioner's tolerance and condonation was the union activity in the plant and Duncan's remark about the union stopping the fifteen hour day. We are in no doubt that this remark whether merely impetuous and impromptu, or springing from surly and deep- seated resentment, was what fanned the smoldering fuse of resentment in Johnson's mind against both Duncan and the union into the flash of the explo- sion which resulted in Duncan's discharge. In the court's language, I find that the straw that broke the back of the Respondent's tolerance and condonation of Curry's and Doswell's complained of acts and de- linquencies and set off the explosion which resulted in their discharges was their union activities. Their discharges for this reason were violative of Section 8 (a) (3) and 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. It has been found that the Respondent discriminated in regard to the hire and tenure of employment of Charles T. Curry and Chester F. Doswell. It will be recommended that the Respondent be ordered to offer to Charles T. Curry immedi- ate and full reinstatement to his former or substantially equivalent position without prejudice to seniority or other rights and privileges. See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. Although it has also been found that the Respondent discriminated in regard to the tenure of employment of Chester T. Doswell, I do not recommend that the Respondent be ordered to reinstate him to his former or substantially equivalent employment, be- cause I am satisfied, in accord with the testimony of General Manager Cooper, that the Respondent has in force a policy against hiring or retaining in its employ per- sons with a history of syphilis, and that this policy would have resulted in Dos- well's discharge upon its institution had he not been discharged before then. In crediting Cooper's testimony on this matter, I have considered the fact that the Respondent was aware of Doswell's medical history from the time he was first em- ployed, that he did obtain a municipal health card despite his history, that his con- dition was apparently inactive and in a noncommunicable stage, and that he was in possession of a health card when he was discharged. I am satisfied, however, apart from my favorable impression of Cooper as a truthful witness, that the Respondent's policy as explained by him carries such logical appeal as a matter of business interest, that I conclude that the policy was adopted and made effective as related by him. It will further be recommended that the Respondent make Curry and Doswell whole for any loss of pay suffered by reason of the discrimination against them. As to Curry, his loss of pay, based upon earnings which he normally would have earned from November 4, 1953, the date of the discrimination against him, to the date of the offer of reinstatement, less net earnings, shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289; N. L. R. B. v. Seven-Up Bottling Company of Miami, 344 U. S. 344. It is also recommended that the Respondent shall make Doswell whole for all loss of earn- ings sustained by him from November 4, 1953, the date of the discrimination against him, until the date when the foregoing policy was adopted which would have resulted in his lawful discharge because of his medical history. Because General Manager Cooper was uncertain as to the date when this policy became effective, having testified that its operative date was in the early part of November 1953, 1 to 3 weeks after Doswell's discharge, it cannot on the basis of the present record be determined when the Respondent's liability for back pay to Doswell ceased. Accordingly, the determination of this question shall be left to the compliance stage of this case. WELLS DAIRIES COOPERATIVE 899 Because the Respondent infringed fundamental rights guaranteed by the Act, the commission of other unfair labor practices may thereby reasonably be anticipated. It will therefore be recommended that the Respondent cease and desist from in any manner infringing upon the rights guaranteed its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Retail, Wholesale and Department Store Union, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating with respect to the hire and tenure of employment of Charles T. Curry and Chester F. Doswell, thereby discouraging the free exercise of rights guaranteed in Section 7 of the Act and discouraging membership and activity in the above-mentioned labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 3. 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 com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Appendix 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 Rela- tions Act we hereby notify our employees that: WE WILL NOT discourage membership in Retail, Wholesale and Department Store Union, CIO, or in any other labor organization of our employees by discriminating in any manner in regard to hire, tenure, or any term or condi- tion of employment. WE WILL offer to Charles T. Curry immediate and full reinstatement to his former or substantially equivalent position, without prejudice to any seniority or other rights and privileges, and we will make whole Charles T. Curry and Chester F. Doswell for any loss of pay suffered as a result of the discrimination against them. WE WILL NOT coerce employees in the exercise of their right to engage in or to refrain from engaging in union activities by interrogating them as to their union activities, making statements in opposition to their union activities coupled with threats of reprisal against them for participating in such activities, and engaging in surveillance of their union activities. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named 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 engaging in any or all 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 in conformity with Section 8 (a) (3) of the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization except to the extent above stated. WELLS DAIRIES COOPERATIVE, Employer. Dated---------------- By---------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date herein, and must not be altered, defaced, or covered by any other material.