Diamond Ginger Ale, Inc.

DIAMOND GINGER ALE, INCORPORATED 1173 right to work at the Kingston Steam Plant, Kingston, Tennessee ," but does not set forth any commerce data On the basis of the above, the Board is of the opinion that insufficient data have been submitted, as required by Section 102 99(a) (5) and (6) of its Rules and Regulations, to enable it to give an advisory opinion as to whether the commerce operations of the employers involved are such that it would or would not assert jurisdiction Said Section 102 99 (a) (5) and (6) read as follows SEC 102 99 Contents of petition for an advisory opimon-(a) A petition for an advisory opinion, when filed by a party to a proceeding before an agency or court of a State or Territory, shall allege the following . (5) The general nature of the business involved in the pro- ceeding (6) The commerce data relating to the operations of such business...." [The Board dismissed the petition ] Diamond Ginger Ale, Incorporated and International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 677. Case No. 1-CA-2773 De- cember 29, 1959 DECISION AND ORDER On August 26, 1959, Trial Examiner Thomas F Maher issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief Respondent filed a brief in support of the Intermediate Report Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman. Leedom and Members Rodgers and Jenkins] 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 Inter- mediate Report, the. exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- 125 NLRB No 122. 535828--60-vol. 125-75 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mendations of the Trial Examiner, with certain modifications as in- dicated below.' [The Board dismissed the complaint.] 1 We agree with the Trial Examiner that the General Counsel failed to establish that Altieri was discriminatorily discharged. We rest this conclusion on the ground that there was no showing that the Respondent had knowledge of Altieri's interest in, and activity on behalf of, the Union. We have reached that conclusion without consideration of, or reliance on, the Wiese Plow Welding Co., Inc., 123 NLRB 616, case. Accordingly, we neither pass upon nor adopt the Trial Examiner's treatment of that case. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed on February 13, 1959, by International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 677, herein referred to as the Union, the General Counsel of the National Labor Rela- tions Board issued a complaint dated May 13, 1953, against Diamond Ginger Ale, Incorporated, herein referred to as the Respondent, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. In its duly filed answer Respondent, while admitting certain allegations of the complaint, denies the commission of any unfair labor practices. Pursuant to notice a hearing was held before me at Waterbury, Connecticut, on June 9 and 10, 1959. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argu- ment, and to file briefs. Counsel waived both oral argument at the conclusion of the testimony and the filing of briefs. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Diamond Ginger Ale, Incorporated, is a Connecticut corporation engaged in the manufacture, sale, and distribution and carbonated soft drinks and related prod- ucts, with its office and principal place of business in Waterbury, Connecticut. The Respondent annually purchases and receives from points outside the State of Con- necticut raw. materials valued at more than $50,000. It is admitted and I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES The issues raised by the pleadings and developed by the evidence are (a) whether Respondent discharged Daniel Altieri, Jr., for lack of work or because of his interest in and activity on behalf of the Union; and (b) whether Respondent, through its president and treasurer, Daniel J. Leary, warned and threatened its employees not to join or assist the Union. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Altieri's discharge Interest in the Union developed among Respondent's drivers sometime early in January 1959, and Daniel Altieri, Jr., employed as a driver with Respondent since June 1956, became active in behalf of the Union's organizational drive. Altieri's activity in this regard appears, however, to have been confined to talking privately and individually with the other drivers and attempting to enlist their membership in the Union, although he himself had not yet joined. Thus, following a company meeting of drivers, it was Alteri who called the drivers together as they were pre DIAMOND GINGER ALE, INCORPORATED 1175 paring to go out on their trucks, determined "to see if Dan Leary had discouraged any of them from signing authorization cards." On January 28, 1959, and again on February 2, Respondent called meetings of its drivers at which the usual subjects of safety, customer relations, and the effect- ing of economies were presented to the men by President-Treasurer Leary. At the February 2 meeting George Greaney, in charge of Respondent's sales and deliveries, was also present and spoke to the men. These two meetings did not differ from the usual driver meetings, however, except in two respects. They were called without the customary several days' notice, but by announcement before checking out on the drivers' morning run, and they were not held, as was the general custom, on Friday mornings. During the course of the January 28 meeting an unidentified driver opened a discussion concerning the Union. President Leary took occasion at this point to express his objections to the unionization of the drivers, stating his belief that the Teamsters Union was not good for the men, that its leaders were gangsters, and that if the men had any trouble or problems they should bring them to him.' It ap- pears that Leary's expression of his views on these occasions was inspired by in- formation he had previously received from Greaney, and from union circulars that Greaney had received in the mail during the past several months and had referred to Leary. Copies of the most recent of these circulars had, in fact, been placed upon Leary's desk immediately prior to the January 28 driver meeting. At the February 2 meeting Respondent announced that because of a decrease in business, an economic situation that prevails in the soft drink business during the mid-winter season, a cutback in the driver complement would be necessary. Earlier, Greaney, who was charged with the responsibility of effecting economic retrench- ments of this sort, decided that he was two drivers overstrength. At this point his task of economizing was eased by driver Martin's request for a 3-month layoff. At the close of the February 2 meeting Greaney called driver Altieri aside and, as part of the retrenchment policy that Respondent had instituted, discharged him for stated reasons that are in dispute and which will be considered in detail hereafter. Altieri has since been rehired by the Respondent, having reported for work on May 25, and he is presently engaged in his usual driving duties. B. Respondent's explanation of Altieri's discharge The reasons assigned by Respondent for Altieri's discharge are clouded with considerable contradiction and doubt. Much testimony was elicited, for example, on the state of the business during the mid-winter months when soft drink consump- tion was at its annual low ebb. It was also established that in an effort to retain its experienced drivers during these slack months Respondent adopted the expedient of "doubling up"; that is, using an idle driver as a helper on another truck. Yet in the face of this, on January 12, Respondent hired Stanley Teach,2 presumably as a part-time driver; but Teach worked thereafter on a schedule that, for all intents and purposes, would be considered full time. Such a background makes it most difficult to determine what Respondent spe- cifically considered to be the reason for Altieri's discharge. Greaney testified cred- ibly that at the time he discharged Altieri he told him it was for his misconduct; yet he also testified that the necessity for a discharge was prompted by economic reasons and Altieri was the one selected because of his alleged misconduct. Indeed, Respondent insists in its answer to the complaint, and at frequent intervals through- out the hearing by statement of its counsel and testimony of its officials, that the reason for Altieri's discharge was lack of work, that two drivers had to be laid off, and that Altieri was selected as one of the two because of three specific incidents of alleged misconduct which I shall detail hereafter. Furthermore Altieri stated that when he appealed Greaney's discharge to President Leary, Leary told him that "we're running in the red and we have to tighten up on our operating expenses and, I This finding is based on the credited testimony of drivers Rigon, Sullivan, and Teach. Because I have found the testimony of Leary replete with instances of un- certainty, evasion, and self-contradiction, I do not credit such of his testimony as con- flicts with or is uncorroborated by the credited testimony of other witnesses. 2 Teach's selection for hire at this time resulted from a solicitation made to Greaney in Teach's behalf but apparently without his knowledge. Thereafter, still not having specifically applied for a job, he was summoned by telephone and immediately assigned driving duties. 1 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he said, its not because I dislike you that you got to be the goat of this whole damn mess." Altieri's further testimony 3 concerning this conversation serves to cor- roborate the economic basis assigned by Respondent for his selection. For, in reply to a question specifically directed to the context in which Leary's statement was made, Altieri stated that between the time Leary discussed the Company's economic difficulties and the time he told Altieri he was "the goat" Leary "made no mention of the union." Actually what Altieri had done that had so displeased Respondent and had provided it its basis of selecting him as one of the two to be laid off may be classified among the routine occupational blunders and pecadillos. Thus, on one occasion Altieri, while acting as a helper for another driver, Sullivan, returned late with him after an afternoon and evening of card playing, and some drinking, when actually they should have returned to the garage some 3 or 4 hours earlier. Although all the deliveries had been made Sullivan was reprimanded for this late return, the unloading of empty cases at the plant garage being impeded.4 On a second occasion, Friday, January 23, Altieri's morning departure on a run to Bridgeport, 30 miles distant, was delayed several hours for personal reasons, and as a result he failed to complete his deliveries. After reporting this failure to Greaney at the end of the day, he returned to the Waterbury garage and, upon his own suggestion and without compensation, completed the deliveries on the following day, Saturday, his day off. Greaney testified that he did not reprimand Altieri for this. On a third occasion, Friday, January 30, and the incident which, according to Greaney, "was the last straw," Altieri did not return from a trip to Stanford, Con- necticut, until 8:45 p.m. In the process of parking his truck he was alleged to have backed it into the auto of a woman who "thought [the driver] might have. been a little under the weather." The damage appears to have been slight,5 and Altieri was neither confronted nor otherwise identified by the owner of the car, nor even requested by Respondent to file the usual accident report. The foregoing incidents, Respondent claims, were the basis for Altieri's selection as one of the two drivers who would be laid off because of the decline in business. And but for Greaney's credited testimony there might be said to be a ring of consistency to the reasons thus advanced. But when asked by Respondent's counsel if Altieri would have been retained under such conditions, even if work were avail- able, he stated that Altieri would still have been laid off.6 And finally, in a period of business decline Respondent hired Stanley Teach for what amounted to full-time employment, and within 3 days after Altieri's discharge assigned him Altieri's Danbury route. Upon the foregoing, from the record as a whole, and from my observation of the witnesses, it is evident that in their testimony as to the circumstances of Altieri's discharge no witness was entirely frank as to what motivated the discharge and as to the reasons assigned for it. My analysis of the conflict and confusion persuades me, however, that this obvious evasion by every witness has done nothing more than raise a question of which reason came first: the lack of work, or the miscon- 8I do not, upon my observation of Altieri as a witness, credit such of his testimony as conflicts with or is uncorroborated by the credited testimony of other witnesses. I do, however, credit his testimony concerning his conversation with Leary, constituting as it does admissions contrary to the position taken by him, and by the General Counsel, that his discharge was for union considerations and not for reasons of economic necessity. 4It was company practice to hire an unloading crew for part-time work between the hours of 5 and 9 p.m. Unless drivers returned to their trucks at a reasonable hour the unloading crew would be required to work overtime, or the unloading of the trucks would perforce be deferred until morning when the loading crew would inherit the job. S Greaney testified that the driver "backed up and kind of bumped .. . her front fender," involving a repair bill of $28. Greaney testified : Q. (By Mr. Weisman.) You had three incidents within 3 weeks which concerned Altieri and have stated that he was discharged primarily for lack of work ; now, then, supposing you had been very busy, even though he had done all these things that you had found complaint about, would you say now whether or not he would have been retained on the job after these three incidents? A. Would he have been retained after these three incidents? Q. If there was plenty of work for him to do rather than being laid off? A. That's a hard one to answer. I'm inclined to say, no, he would not be re- tained. I would have to use the other alternative, misconduct. DIAMOND GINGER ALE, INCORPORATED 1177 duct. Out of the welter of fact before me I find that Respondent, dissatisfied with Altieri, seized upon lack of work as the basis for laying him off and used his conduct to fortify its choice. C. Concluding findings Having found as I have that Altieri was discharged for lack of work but that the basis for his selection for discharge was, to say the least, tenuous, it behooves me to consider Respondent's motive in thus selecting him. At the outset it is important to note that it is not our function to assess and pass judgment upon every discharge effected by an employer. For it has long been established that an employer may discharge an employee for any reason he chooses, or for no reason whatever, so long as it is not for a reason proscribed by the Act? It is not enough, therefore, for the General Counsel to rebut the Respondent's claim that his business was suffering an economic decline, or to prove that Altieri's offenses were not the sort that normally warranted disciplinary action, or to show how Respondent had completely contradicted itself at every step along the way, from the time Altieri's discharge had been contemplated until the last witness had been heard at the hearing. Over and above this, and notwithstanding the suspicious character of the circumstances, it must be shown affirmatively that the Respondent discharged Altieri for reasons not permitted by the Act-in this case for reason of his membership in or activity in behalf of the Union.8 Essential to such a showing, moreover, is the Employer's knowledge of the fact that his employee was a member of the Union or was actively engaged in its behalf, or both. For it would defy logic to say that an employer could discriminate against his employee because of union activity when the employer never knew of the employee's union membership or activity. A thorough reading of all the testimony in the record of this case reveals no single fact, nor indeed remote indication, that either of Respondent's two responsible officials, Leary or Greaney, knew of Altieri's union affiliation or of his activities directed towards organizing Respondent's driver employees .9 Notwithstanding the peculiar circumstances under which Altieri's employment was terminated I cannot substitute my suspicions, however lively, for legal evidence that Respondent had this essential knowledge in its possession. I am fully aware, of course, that all the transactions herein occurred within the compact confines of a comparatively small business operation. The Board has held, however, that "the mere fact that Respondent's plant is of a small size, does not permit a finding that Respondent had knowledge of the union activities of spe- cific employees, absent supporting evidence that the union activities were carried on in such a manner, or at times that in the normal course of events, Respondent must have noticed them." 10 Upon careful review of all the testimony in this record I find that there is no indication that Altieri's activities were so open, frequent, or noticeable as to have brought them to Respondent's notice "in the normal course of events." Nor do I consider the Board's recent holding with respect to a substitute for direct evidence of employer knowledge of his employees' union membership or activities to be germane to the issue presented for decision here. In Wiese Plow Welding Co., Inc. (123 NLRB 616), it was held that direct knowledge of an em- ployee's concerted or union activities is not a sine qua non for finding that he had been discharged because of such activities. In the context of the case before it the Board enumerated factors whose composite would establish employer knowledge: the size of the plant, plus (1) the fact that the employee recently spoke in favor of the Union to other employees, (2) the employer's knowledge of that employee's union activity at a previous place of employment, (3) the timing of the discharge, which took place as soon as union activities became apparent, (4) the fact that the olily two men, in that case, who had been active in behalf of the Union were discharged, and (5) the absence of warning of discharge such as had been given in previous instances. 7 N.L.R.B. v. Standard Coil Products Co., Inc., 224 F. 2d 465, 470 (C.A. 1). 8 N.L.R.B. v. Stan.da.rd Coil Products Co., Inc., supra. 8In the absence of direct testimony as to Respondent's knowledge of Altieri's union membership or activity I must, indeed, give considerable weight to Greaney's denial of such knowledge when specifically questioned concerning it upon cross-examination. 10 Hadley Manufacturing Corporation, 108 NLRB 1641, 1050. 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If we were to superimpose the facts and circumstances of the instant case upon the criteria for inference of employer knowledge established by the Board in Wiese Plow, only in two respects would there be any resemblance . In each case a small plant was involved ; and in each case the dischargee "spoke in favor of the Union to other employees during the last week of his employment ." 11 In all other respects the Wiese Plow criteria have no relevance here. Thus, knowledge of Altieri's previous union membership , if any, was not shown ; Greaney testified credibly that he had long been aware of the Union's activity , having been receiving, or been aware of, union circulars for 2 or 3 months; driver Martin , who was laid off without a hearing, was not shown to be a spirited union protagonist , and no one so claimed; and there is no evidence of what notice , if any, had been given in instances of past discharges. I find, therefore, that not only has General Counsel failed to supply and direct evidence of the employer's knowledge of Altieri's union membership or activity, or both, but there is further lacking in this record , considered as a whole, those elements which meet the criteria recently established by the Board for the drawing of an inference of such knowledge . Accordingly , in the absence of a necessary element in the General Counsel 's proof of his case, I shall recommend that the complaint be dismissed insofar as it alleges the discriminatory discharge of Daniel Altieri, Jr. The complaint further alleges that Respondent , by the remarks made by President Leary on January 28, interfered with , restrained , and coerced its employees by warning them to refrain from assisting , becoming members of , or remaining members of the Union and by threatening them with discharge or reprisal if they did so. Of the five drivers testifying as to what occurred at this January 28 driver meeting, four of them, Sullivan and Rigon in behalf of Respondent , and Altieri and Teach in behalf of the General Counsel , testified that Leary stated that he did not think that the Teamsters was a good union for the men , that its leaders were gangsters, and that if they were dissatisfied with conditions they should feel free to see him.I2 As the opinions of President Leary, described by the foregoing witnesses, are those shared by a considerable body of the population and are reiterated daily in the press and through other media of communication I see no warrant in singling out such statements as were concededly made here to find that , because made in a context of remarks to employees , they would thereby constitute interference, restraint, and coercion.13 Accordingly, I shall recommend that so must of the complaint as alleges that Respondent has interfered with, restrained , and coerced its employees in the exercise of their statutory rights be dismissed. 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. The Union is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of the Act. 3. The Respondent has not engaged in unfair labor practices as alleged in the complaint. [Recommendations omitted from publication.] 11 The latter criteria cannot be applied, however, to the facts of this case . For to prove the Respondent's knowledge of Altieri 's union activities , or any other activities , for that matter, by the employee's conversations with others , out of Respondent's sight and hear- ing, must either beg the question completely , or bestow upon Messrs. Leary and Creaney qualities of clairvoyance not otherwise disclosed by the record. 12 Only driver Martin testified differently , to the effect that Leary stated that if they Union came in the Company would have to shut its doors because it could not pay the wages. As I found Martin to be vague , confused , and evasive in his testimony , I do not credit such of his testimony as conflicts with or is uncorroborated by the testimony of other witnesses. 13 "Some twenty years ago when the war over unionization of industry was at the critical stage, employees might well and with good reason have feared to reveal their union sentiment and might well have been swayed one way or another by an employer's statement as to his position on the subject . Now, labor and Industry speak with equal dignity and it requires something more than mere suspicion to read coercion into an employer 's speech which , upon its face, is in all respects within the proprieties." N.L.R.B. v. Roberts Bros., 225 F. 2d 58 , 60 (C.A. 9).