Michigan Wineries, Inc.

MICHIGAN WINERIES, INC. 463 CONCLUSIONS OF LAW 1. Yale Upholstering Company, Inc., the Respondent herein, is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 149, United Furniture Workers of America, AFL-CIO, and the "shop committees" of October 9 and 29, 1958, are labor organizations within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed at Respondent's New Haven plant, exclusive of professional employees, clerical employees, guards, foremen, and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Local 149, United Furniture Workers of America, AFL-CIO, has been at all times since October 1956, and is, the exclusive representative of all the employees in the aforestated appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By assisting, dominating, and interfering with the formation and administration of the "shop committees" and by contributing support to them, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8(a)(2) of the Act. 6 Local 149, United Furniture Workers of America, AFL-CIO, on October 9, 1958, was, and at all times thereafter has been, the exclusive representative of all employees in the above-described appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 7. By refusing to bargain collectively with said labor organization as the exclusive representative of its employees in an appropriate unit in the mode and manner described above, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 8. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, by refusing to bargain collectively with said labor organization on questions of wages, hours, and other conditions of employment, by initiating, sponsoring, and contributing to the support of the "shop committees" of October 9 and 29, 1958, and by soliciting employees to with- draw from the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Michigan Wineries, Inc. and Joseph Castiglia and Herman De- Shane. Case No. 7-CA-266. April 28, 1960 DECISION AND ORDER On December 22, 1959, Trial Examiner John C. Fischer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. 127 NLRB No. 63. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the additions and modifica- tions set forth below. The Trial Examiner found that the Respondent violated Section 8 (a) (1) of the Act by laying off certain employees. No exception was taken to this finding, and we adopt it. However, the Trial Examiner failed to recommend backpay for the laid-off employees, and the General Counsel excepts to such failure. We find merit in this exception. As the Board has held,' an award of backpay is appro- priate to remedy discrimination in violation of Section 8 (a) (1), as well as of 8 (a) (3), and we therefore find that the effectuation of the policies of the Act requires that the laid-off employees be awarded backpay. We shall therefore order that the Respondent make whole each of the laid-off employees for any loss of pay he may have suffered by reason of his unlawful layoff or layoffs during the period from the date of each layoff to the date of his actual recall from such layoff, by payment to him of a sum of money equal to that which he would normally have earned as wages during such period, less his net earn- ings during that period (Crossett Lumber Company, 8 NLRB 440), said backpay to be computed on a quarterly basis in the manner estab- lished by the Board in F. W. Woolworth Company, 90 NLRB 289. We shall also order that the Respondent preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll and other records necessary to enable the Board to analyze and compute the amounts of backpay due. ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Michigan Wineries, Inc., Paw Paw, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Interrogating its employees concerning their union member- ships, sympathies, or activities in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (b) Threatening employees with reprisals for engaging in, and promising them benefits for refraining from engaging in, union activities. (c) Threatening to lay off, and laying off, employees for wearing union pins, thereby discouraging membership in Local No. 7, Interna- 1 United States Cold Storage Corporation , 96 NLRB 1108, 1112. MICHIGAN WINERIES, INC. 465 tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Local No. 7, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 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 as guaranteed in Section 7 of the Act, or to refrain from any and all 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, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Make whole each of the laid-off employees for any loss of pay he may have suffered by reason of his unlawful layoff or layoffs in the manner set forth in the Decision herein. (b) Post at its plant at Paw Paw, Michigan, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Seventh Region (Detroit, Michigan), shall, after being duly signed by the Respondent's author- ized representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of 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. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (d) Notify the Regional Director for the Seventh Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed, insofar as it alleges that the Respondent violated Section 8(a) (3) of the Act by discharging Joseph Castiglia and Herman DeShane. Ilia 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 "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 560940-61-vol. 127-31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their union memberships, sympathies, or activities. WE WILL NOT threaten our employees with reprisals for engag- ing in, or promise them benefits for refraining from engaging in, union activities. WE WILL NOT threaten to lay off, or lay off, employees for wear- ing union pins, thereby discouraging membership in Local No. 7, International Brotherhood ofoTeamsters, Chauffeurs, Warehouse- men and Helpers of America. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist Local No. 7, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guar- anteed in Section 7 of the Act, or to refrain from any and all 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, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. All our employees are free to become or remain, or to refrain from becofYling or remaining, members of the above-named Union or any other labor organization, except to the extent that this right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. MICHIGAN WINERIES, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. MICHIGAN WINERIES, INC. INTERMEDIATE REPORT 467 STATEMENT OF THE CASE This proceeding was brought under Section 10(b) of the National Labor Relations Act as amended (61 Stat. 136), and litigated at Paw Paw, Michigan, July 7 to 9, 1959, pursuant to due notice , with all parties represented and participating in the hearing. The complaint, which was issued on April 20, 1959, by the General Counsel of the National Labor Relations Board and which was based on charges filed on January 30, 1959, by Joseph Castiglia and Herman DeShane, alleged that Respondent has since December 28, 1958, interfered with, restrained , and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act, and the Respondent Company discriminatorily terminated the employment of Joseph Castig- lia and Herman DeShane on January 3, 1959, because they had joined or assisted the Union or engaged in other concerted activities for the purpose of collective bargain- ing or other mutual aid and protection , all in violation of Section 8 (a) (1) and (3) of the Act. Respondent answered on May 5, 1959, denying that it had engaged in unfair labor practices as alleged. A hearing was held on July 7, 8, and 9, 1959, at Paw Paw, Michigan, before John C. Fischer, the duly appointed Trial Examiner. Full opportunity to be heard, to examine and cross-examine witnesses , and to pro- duce evidence, give oral argument, and submit written briefs was afforded all parties. Certain motions made during the trial, and upon which definitive rulings were withheld, are disposed of in light of the findings and conclusions hereinafter. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Respondent Company is now and at all times material herein has been a Michigan corporation with its principal office and place of business at Paw Paw, Michigan, where it is engaged in the manufacture of wines and related products. During the calendar year 1958, which is a representative period of all times herein material, Respondent, in the course and conduct of its business operations , sold and shipped in interstate commerce from its plant at Paw Paw, Michigan, to points outside the State of Michigan goods and products valued in excess of $50,000. It is admitted and I find that Respondent Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local No. 7, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as the Union or Teamsters , is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES This case arose as a result of and during the organization of Respondent Com- pany's employees by Local No . 7 of Teamsters Union. Jack M. Brand, an organizer and business representative of Teamsters , secured the signed application cards of 9 of Respondent's 17 to 20 regular employees between December 19 and 24, 1958, and held the first organizational meeting at the home of one of the applicants on December 26, 1958. At this meeting Respondent 's employees Dudley Johnson, Wilson Ellis, Herman DeShane, Wilbur Buchanan , Joseph Castiglia, Ernest Forbes, Delmer Gossett , Donald Stewart , and Robert Orestrovich signed a petition to the Teamsters in which they authorized Local 7 to represent them for purposes of collective bargaining with the Company . They claimed to constitute a majority of Respondent's employees . Based upon the list of regular employees on the payroll as of March 5, 1959 (General Counsel's Exhibit No. 27) and testimony of record, the complement of Respondent's staff, excluding management officials, was 17, of which 4 were female None of the women employees appeared to have signed Teamsters application cards, nor was there any evidence adduced as to whether they were to be members of the Local when organized. The record indi- cates that the 100 or more temporary employees hired during the rush or "pressing season" were not to be included. (Previously, in 1957, Teamsters had attempted to unionize the Company, but had lost the election nine to seven , on June 28, 1957, Case No 7-RC-3512, unpublished.) Next, on December 29, Secretary-Treasurer Zimmerman of Teamsters Local 7 sent a telegram to the founder , treasurer, and chief stock-owner of the Company, 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John Turner, informing him that the Local represented a majority of the employees and requesting a meeting at his earliest convenience . Also the telegram stated: "We are notifying you of this fact [majority representation] so there will be no discrimi- nation or intimidation of any of your employees ." This message was telephoned to Respondent's office by Western Union and the contents given to Mr . Turner by one of the office girls . It was subsequently delivered through the mails. Upon receipt of the contents of the message, Mr. Turner proceeded that evening to visit four of the employees at their homes and interrogate them about the Union. In response to Respondent Counsel Edwards ' question : "Why did you decide to go to talk to the boys?" Turner aswered : "Well, I had no knowledge of anyone being dissatisfied or any union , and Mr. Brand [union organizer] there had told me pre- vious times he had a majority of the help, and when the time came he didn't have it, and I went to see if this [organizing] had taken place." Turner testified that he first went to the home of veteran employee James Allen, upon whose information he felt he could depend, thence to Buchanan's, thence to DeShane's, and then to Stewart's home, and talked with each. Turner first called upon Allen, the maintenance helper and father-in-law to Forbes, "one of the instigators of the union ." Allen testified under subpena by General Counsel . He was an old friend of Turner, and he had run every operation on the entire line. His cogent testimony was: "Well he just came in and asked me if I knew anything about the union , and I told him only what I heard because they kept everything from me. . Forbes, my son-in-law, and I named off the different ones that I knew or thought I knew had signed up ." Allen named the nine signa- tories. Queried as to what Turner said when given this information : "[He] just thanked me and went on, told me not to sign , and asked me if I knew anything about it, if I had signed and I said `No,' and he said `Don't."' At this time, on the word of his faithful confidant , Allen, Turner knew that they had a majority. It was not necessary for him to further interrogate employees. Also, his son-in-law, Warner, company president, testified on cross-examination : "We had the same names prior to his [Turner's] talking to them." Apparently, they had secured the names and report of the meeting after the telegram from some friendly source. Wilbur Buchanan testified he had a conversation at his house with Turner around 7:30 p.m. in his kitchen. His cogent testimony was: Well, we went to the kitchen and sat down at our table and he asked me-Mr. Turner asked me-if I knew anything about the election , the union. I told him I did , so he said "Well, who started the union ?" and I told him Dudley Johnson and Eddie Forbes, and then I went ahead and told him all of the employees had signed up for it , so then as our conversation got along I told him "You might as well know that I signed it also," and he said "Supposing I don't accept the union?" I said "Well, it would probably be if we get the majority of the votes it will be a picket line, but it will be up to the union then." So then he said "If that's what the boys want they are entitled-that is their privilege." He also said the Board of Directors advised him he couldn't pay any more money because-well, I guess that was all they could afford to pay, so that was about the end of our conversation. He left. Q. Did you name all of the employees who had signed the application-for- membership cards to Mr. Turner? A. Yes. Q. What names did you give to him? A. I gave Dudley Johnson, Eddie Forbes, Herm DeShane, Ernest-Donald Stewart, myself, Wilbur Buchanan, Joseph Castiglia, Delmer Gossett. Herman DeShane, the next employee visited and talked to on the street in front of his house by Turner, testified as to the conversation: Well, he came to me and wanted to know about the union activities. He wanted to know who had signed, and I told him eight or nine, and he said "Did you sign?" and I said "No" because I figured that was my personal business, and he said "Well, if eight or nine signed pretty nearly everybody signed it, didn't they?" and I said "I wouldn't know because I don't know everybody in the plant," and I didn't, and he said "Well, if you haven't signed, don't sign," and turned around and went away . That was the end of our conversation. DeShane was the sole employee to lie about joining the Union. Donald Stewart was the last man visited that evening by Turner . He stated that this was the only occasion on which Turner visited his home . In describing the conversation he testified: I believe it began with Mr. Turner mentioning that I had some nice children. He emphasized a new baby we had then being a nice baby . He turned to me MICHIGAN WINERIES, INC. 469 and asked me if I knew anything about the union, and I told him "Yes." Mr. Turner asked me if I had signed a card, and in return I said "Yes." Mr. Turner then asked if Herman DeShane had signed a card, and, knowing that he had, I told him "Yes, he did." In reply to that Mr. Turner said "Well, he told me he didn't." He asked me-Mr. Turner, that is-asked me if I knew who signed those cards, and I told him "Yes." He asked me how many had signed the cards and I answered that the biggest percentage of employees had signed the cards, and at that I believe Mr. Turner excused himself and left, after my in- viting him for supper. Turner refused the invitation but Stewart explained: "I did it to be polite because we were ready to sit down when he came in." Turner affirmed that his purpose was to find out if the boys were dissatisfied and what they were dissatisfied about, and he was interested, secondarily, in finding out whether the Union had a majority, according to his testimony. Turner flatly denied that Allen, Buchanan, DeShane, and Stewart told him who had signed cards in re- sponse to his interrogation. Rather, he contended that they never told him the names of those who signed, but told him the names of those who attended the first union meeting on December 26 and told him that five or six had signed up. The Trial Examiner concluded that Turner's memory was faulty, perhaps due to age, and accepted the forthright testimony of the four employees. The accepted testimony set out above constitutes a pattern of illegal interrogation under Section 8(a)(1) tending to interfere with, restrain, and coerce employees in the exercise of protected rights guaranteed by Section 7 of the Act. Promises to raise the wages of certain employees during an organizing effort and prior to a Board election, announcing that the board of directors would not increase the wage scale, and posing the question that the Company might accept a union, constitute promises of benefits and threats of reprisal violative of Section 8(a)(1) of the Act. Respondent relied on the Board's doctrine enunciated in Blue Flash Express, Inc., 109 NLRB 591, which, within certain limits and under certain conditions, permits interrogation of employees in order for an employer, in good faith, to determine whether a union represents a majority of its employees. The instant case does not fall within the protected area of that ruling. In the Blue Flash Express case, supra, the Board overruled Standard-Coosa- Thatcher I and reversed the holding, rather consistently rejected by the courts,2 that interrogation of employees as to their union activity or membership was unlawful per se. In Blue Flash the employer received a claim from the union that it repre- sented a majority and a demand for recognition, interrogated each of its employees for the purpose of establishing the truth of the claim and framing its answer to the union. The employees were told that they need fear no reprisal. The Board majority held that such interrogation, conducted for a proper purpose and under proper safe- guards, was not a violation of the Act. It noted that the Respondent communicated its purpose to the employees, assured them no reprisal would take place, and that the questioning took place in -a background free of employer hostility to union organization. The Board, however, expressly disclaimed establishing a rule that interrogation must be accompanied by other unfair labor practices before it could constitute a violation of the Act. The new test was stated: In our view, the test is whether, under all circumstances, the interrogation reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act. It added this caveat to employers who might seek to amplify the scope of decision: Therefore, any employer who engages in interrogation does so with notice that he risks a finding of unfair labor practices if the circumstances are such that his interrogation restrains or interferes with employees in the exercise of their rights under the Act. The rule which we adopt will require the Trial Examiners and the Board to carefully weigh and evaluate the evidence in such case, but that is what we believe the statute requires us to do. The only alternatives, both of which we reject, are either to find all interrogation per se unlawful, or to find that interrogation under all circumstances is permissible under the statute. The majority went on to note that under a per se rule' casual, friendly, or isolated instances of interrogation by a minor supervisor would subject the employer to a 'Standard-Coosa-Thatcher Company, 85 NLRB 1358. See N.L.R B. v. Protein Blenders, Inc., 215 F. 2d 749 (C.A. 8) and cases cited. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finding that he had committed an unfair labor practice and the possible consequences under contempt proceedings. The intimation was clear that in such cases a violation would not be found. The Blue Flash decision is a clear and lucid statement of the law on interrogation, and its caveat as to what it does not permit is equally as important as its exemptions. Nowhere in that decision is there any implication that the Board did not continue to recognize that interrogation inherently involved restraint.3 What it did recognize was what the courts had been pointing out: that legitimate interests of an employer might be in conflict with the right of employees to be free from this type of restraint and that in those cases it was the obligation of the Board to balance the conflict and reach an equitable verdict. This conflict is resolved in favor of the employer when he has a proper reason for making the inquiry, the atmosphere is free from antecedent hostility and animus toward the union, and the employees are assured reprisals will not be effected. Discharge of Castiglia The complaint alleged that Respondent discriminatorily disc;iarged Joseph Cas- tiglia on January 3, 1959, because he had joined or assisted the Union. Castiglia was hired to operate the bottle-labeling machine in November 1957 by Company President Warner at $1.40 per hour with the agreement that within 30 days he would be raised to $1.50. Castiglia was employed as the replacement for another operator who had been transferred to another machine. However, he was not granted the raise until after 60 days' service. Dissatisfaction with his performance by manage- ment became manifest within the first month. Castiglia testified that he was given only 2 days' plant training and that after the second or third day he was on his own without any instructions except having watched other men run the machine, and be- ing helped on one occasion by filling machine operator Stewart. One-half hour overtime was required to get the machine ready to run in the morning, and half an hour servicing and cleaning after the regular shift would leave was necessary and overtime was a regular practice. About 11/2 months after he started on the job, Castiglia was called down for too much overtime. His testimony in this connection was: "Mr. Monroe came up to me one night and said we were putting in too much overtime, and I told him I couldn't do all of that in the amount of time they wanted me to do it in. There are over three hundred fittings on the machine to be greased, and it can't be done while the machine is running. I never came in on a Saturday to do it. I just didn't have enough time to do the things I was supposed to do." Castiglia quoted his supervisor, Monroe, as saying: "Well if it can't be done it just can't be done." Mr. Warner, company president who hired him, then complained to Castiglia that he was "taking a little too long." Castiglia's testimony was: "I said, I can't do it in any shorter time, and he [Warner] said, `All of the rest of the fellows are complaining that you are putting in too much overtime.' . I said, If any of the other fellows want this job they can have it.' " He stated they then put Dudley Johnson on for a week to help him out. He also stated that none of them ever criticized him for slow production but he admitted "Mr. Monroe said it could be done." The Trial Examiner finds, on the contrary, that Castiglia was sub- jected to criticism, warning, and possible discipline, but concluded that manage- ment had no one with whom to replace for nearly a year until a competent man applied for the job, one who was equipped with the necessary mechanical know how to perform satisfactorily on this new machine. That man was George F Jacher who replaced Castiglia. Supervisor Monroe, who had operated every machine in the plant, credibly testi- fied that the decision to let Castiglia go was made the latter part of August 1959 by Warner and himself. The reason was that: "We weren't getting out the production we should have on a comparatively new piece of machinery." Monroe explained that at that season they had to stockpile their goods because the production line was closed down until the grape harvest was over and that the Company had a stock on hand to sell their customers at a higher price. (Obviously, this would have been the ideal time to get rid of an unsatisfactory labeling-machine operator.) Warner agreed with Monroe, asked him if he had anyone in mind, and being informed in the negative told him to keep looking, quoting Warner: "This is as good a time as any to make the change and through the next five or six weeks of [grape] pressing time we can find a capable man." Later, in September, Walker and Monroe ap- proached Wilson Ellis and Delmer Gossett about taking over the labeling-machine. O That the employees in Blue Flash regarded the interrogation as coercive may be in- ferred from the fact that each of them denied affiliation although a majority had signed cards. MICHIGAN WINERIES, INC. 471 The explanation by Monroe was: "Well, Wilson Ellis, he thought it over for a couple of days and figured that he was not qualified for it [Ellis could neither read nor write] and he was happy with the job that he was doing, and Delmer Gossett he figured it over for a week or so and I told him to take his time because we were in no hurry and he give me an answer a week or so later that he guessed he wouldn't try it." Monroe further testified that they continued looking for a qualified man on the outside and had several prospects but figured they would be no better off at this particular time, there being no production-line operation, and they "let things ride," still looking further. Monroe credibly testified that he discussed with Castiglia his performance on the job through the course of the period Castiglia was on the labeler. Early in October 1958, President Warner caught Castiglia sleeping on the job while they were pressing grapes. When asked, "How come he was asleep on the job" and told "We might just as well have nobody out there, as a fellow out there sleep- ing," Castiglia's credibly reported answer was that he had been up all day and hadn't lead any sleep, having been to town to do some business, and he was tired. Wilson Ellis, who favorably impressed the Trial Examiner as being a very substantial and dependable citizen, although untutored and able only to write his name, was quoted, uncontradictedly, by Monroe, telling him, Monroe, around April 1958 as refusing to work with Castiglia because "he had an indifferent attitude. He just wouldn't do it the way the work was supposed to be done." Ellis credibly described that Castiglia's inept operation caused the women packers to work much harder. Ellis' commendable attitude was: "If I can't do a company a decent days work-I would rather not even work." (Ellis was a staunch union adherent.) There is ample other evidence in the record, similar to these excerpts, which demonstrate Castiglia to have been a careless and inefficient operator of the labeling machine, which, if recited, would be merely cumulative. The Trial Examiner has carefully studied and considered the elaborate charts or graphs submitted by Gen- eral Counsel and Respondent's counsel as exhibits, which charts summarize the pro- duction records of cases of grapejuice and wine produced from January 1, 1958, to June 30, 1959; and also the voluminous and comprehensive time and earnings statis- tical data. He also has considered the arguments of respective counsel and the testimony anent these exhibits and has accorded them the weight they deserve in light of the entire record. He finds them neither dispositive of the question of Cas- tiglia's alleged discriminatory discharge nor a compelling factor as to why he should be retained. Particularly, the summary of bottling records shows that overall pro- duction increased over that period of 18 months. The time and earnings records will be adverted to later in this report. On or about December 9, 1958, 10 days before the union organizing drive began at Michigan Winery, George F. Jacher left his business in Gaylord, Michigan, and drove to Paw Paw in search of more profitable employment. Jacher had been a partner in a pump business in Gaylord, Michigan. He and his partner had liquidated their concern and Jacher and his wife had decided to return to their hometown and birthplace, Paw Paw, where their parents lived. He and his father-in-law arrived on that evening, opened the house, stayed there that night and the next morning, the 10th, Jacher drove to Lawton, testifying: "I had a note at the bank, the Lawton Bank, and I went to pay this note off. I paid the note off and I happened to run into Jim Warner on the street, and I told him at the time we was coming back to Paw Paw, and I asked him on the street-it wasn't at the bank-if there was any open- ings at his plant, with the idea of coming down here. I was also seeking where I could find a job. Our decision was made. We was coming aback to Paw Paw and, ,of course, I was going to look around for employment and I happened to run into Jim Warner on the street and I asked him and he said there was possibilities and for me to come down the following morning to the office." Reporting at Warner's office on the 11th, Jacher described the events: "Well, we talked about-he talked to me about the possibility of hiring a new man for the labeler because they was having trouble of some kind, which at the time I didn't know, so we talked about it a little bit, and I went out and looked it over but I didn't give Jim a final decision, whether I would take the job. He offered me the job on the labeler. . After I talked with Mr. Warner I went out and looked a few other jobs over and went back to my old place of employment. I went back there and asked about possibilities of getting back, and I checked with Pure Oil Company, talked to one of the salesmen, and also talked to one of the salesmen, service men from Standard Oil Company out of Grand Rapids and that weekend I went back to Gaylord. . I told my wife about Michigan Wineries and about these other offers I had and we come to-the conclusion then that I would try this job at Michigan Wineries, so we made the decision and the following week we come back, dad and I come back on Monday, and I gave Jim the word on Tuesday [the 16th] that I would take the job on the 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labeler." Queried by Counsel Edwards as to what he then did, Jacher stated: "Well, I went out and had to find a place to live in town. Of course, I could have lived with my in-laws or I could have went out to my folks but I thought with all of the furniture we had everything and I would have to find me a place to rent here in town, and I looked at quite a few apartments after I had accepted the job at Michigan Wineries. I looked at quite a few apartments and I had taken this one from Wayne Horger, at the present address I live at, and I have a check dated here in my pocket as of December 17th which I paid in advance for the house I am living in now." This Trial Examiner would be hard pressed to recall, from his experience, a more forthright recital of actual events by a sincere and honest witness in his successful attempt to secure sorely needed employment in the dead of winter-just before Christmas-than this portion of the case history of George Jacher. He had, previously, in 1950 or 1951, worked for Michigan Wineries, and like others, knew of the difficulty in operating the labeling machine; nevertheless, he took the job, and, as borne out in the record, competently performed, in contrast to Castiglia. Without burdening this report unduly, the -following excerpts of descriptive and explanatory testimony are quoted. Consideration of the foregoing and following evidence, substantiated by careful perusal of the entire record, negatives the ques- tion of Respondent's discharge because of union animus on January 3, 1959, of Castiglia. Jacher's hire was accomplished before the Respondent or others had any knowledge of the subsequent advent of the Union and it is upon this basis and for these reasons that the Trial Examiner will recommend to the Board that the allega- tion in the complaint that Respondent terminated the employment of Joseph Castiglia for the reason that he joined or assisted the Union or engaged in other concerted activities be dismissed. Jacher's move to Paw Paw after liquidating his business in Gaylord was com- plicated by the fact that his wife was under contract to January 1, 1959, to teach at the Vanderbilt High School in secondary education. In response to Counsel Edwards' questions: My wife and I went to Vanderbilt and saw the superintendent of schools there, which is Mr. Runyon, and my wife and I tried to get my wife released from her contract as of January 1st. After talking with the superintendent he said he would try to release her from the contract by January 1st if he could find a substitute or another teacher to take her place. Otherwise, she would have to stay there until the end of the first semester, which was approximately January 18th. Q. You started to work at Michigan Wineries on what date then? A. The first Monday after New Years. Q. What job did you start on? A. I started in on the labeler. Q. Have you some mechanical experience, Mr. Jacher? A. Yes, I have had-in our business up north we were in repair service, and we serviced different pumps for the different companies throughout the northern part of Michigan. We had a seventy-five mile radius from Gaylord and also some territory in the upper peninsula. Q. (By Miss Edwards.) When you started working on the labeler the first week in January did you have any difficulties with it? A. Yes, I did. Q. What difficulties did you have? A. Well, not knowing the machine and the functions of the machine I was working rather hard to see what was causing the difficulty. Q. Did anyone in the plant work with you? A. Yes, Mr. Jim Allen worked two, and part of the third day, and he was called out then to do some other work and from then on I was on my own along with some help I received from Don Stewart. When I got in trouble he did assist me to keep the thing going the best we could at the time. Q. What kind of trouble do you mean? A. Well, there was-we had some label trouble. There was parts trouble which had to be repaired that had been worn. They had to be exchanged for new parts to get the thing back in mechanical operation. The General Counsel has not established by a preponderance of the evidence on the-entire record that the Respondent discriminatorily discharged Joseph Castiglia because of his having engaged in protected union activities within the meaning of Section 8(a) (3) of the Act. Accordingly, it will be recommended that this count in the complaint be dismissed. MICHIGAN WINERIES, INC. 473 Discharge of Herman DeShane DeShane testified that he applied for the job with the Respondent on the basis of a conversation that he had with winery employee Webb Kinney in September 1958, when the two were doing some private painting for John Turner . He stated that he had known Turner since 1915. He testified, "Well, we more or less have been buddies. We played cards together , lived in a small community together. I have hunted with him for years. I have been to his home on parties, and I say I worked up at Mr. Turner's house with him when this incident came up. . At the time we worked on Mr. Turner's home Mr. Kinney said he was going to retire, and he said `Why don't you see them about the job?' We were talking about jobs, different jobs. I had worked with him on paint jobs. And I said `Well, that would make me a good, steady job,' and that I would see him. He said 'I will let you know just as soon as I quit.' " Queried by counsel as to whether he was thereafter advised that Kinney was quitting the employ of the Company , he stated, "After that time his brother died, and he went to the funeral , and when he came home from the fu- neral . . . along the latter part of October, as near as I can recollect . . . 1958. He told me that he had been to the winery and he left word with the girls that he had turned in his time, he had quit , and it was all right for me to go and see about the job." He was then asked whether or not he had talked with Mr. Warner or Mr. Turner and when: "That was in October. I was working at the winery one morning and I said 'how about me having Mr. Kinney 's job after the season is over?' He said `Well, I don't know whether Webb has quit or not.' He said 'I will see him and I will let you know,' and I think it was the next day or that night or something-it was at night, I know that, because Jim came over there at night . . . Mr. Warner came to the winery, and I spoke to him on the same subject, asked him if I could have Mr. Kinney's job. . . I explained to him that Webb had told me be had quit. He told me at that time he didn't know whether Webby had quit or not, but he would find out , and if he had quit he didn't see any reason why I couldn't have the job." DeShane stated that he talked to Mr. Warner and asked if it would be all right if he went deer hunting and after he came back , come to see Warner. He stated that after the deer season, Warner told him to come to work on Monday morning of the first week in December . DeShane went to work on the line , feeding the line with empty bottles to the wine and grapejuice filler and spent his extra time painting floors and unloading trucks and boxcars. DeShane did various jobs between the first week of December and the time when he was discharged on January 3. ' It will be recalled that DeShane was one of the four visited by Turner and interro- gated as to what he knew about the union organization and whether he had signed a card. At that time he denied that he had signed a card but Turner was aware of the fact that DeShane had signed for the Union. The evidence in the record will show that whereas Turner and Kinney were lifetime friends and cardplaying companions at the pool hall, DeShane did not enjoy that privilege, although he played cards with Kinney and they were of the same age bracket-middle sixties. DeShane testified that when Warner discharged him, he said that Kinney wanted his job back. Kinney testified that he had been working for the winery for several years, "I would say ten, about ten years." He testified that he left Michigan Wineries October 13, 1958, to attend the funeral of his brother in Florida. He specifically stated that he had not been considering retirement before that time. He specifically denied that he had discussed retirement with DeShane. Q. (By Miss Edwards.) Did you hear him say that you had told him when you left Michigan Wineries you would tell him so he could get your job? A. I didn't hear him. Q. Well, if I tell you Mr. DeShane made that statement or words to that effect, would you say that statement was true? A. No, I never told nobody. Q. You never told anybody? A. I never told nobody. Q. What did you tell the office when you went to leave for your brother's funeral? A. I told her I wouldn't be back for a while . I was going to try and doctor. Q. Had you been in ill health?' A. Oh, yes, since last July. Q. And you have been under a doctor's care since last July? A. Yes. Q. And you are still under a doctor's care? A. Yes, Doctor Steele. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Queried by Counsel Edwards as to whether he reapplied for employment imme- diately after his return from his brother's funeral, he said he did not and gave the reason, `:Well, I didn't feel able. I wasn't feeling good." He then recited that immediately thereafter he had another brother die in November and upon his return he decided about the first of the year, January 1959, that he wanted to work part time. Queried by Counsel Edwards: Q. What was the circumstance of your making application to return to work? A. I didn't make no application. I just seen Mr. Turner down at the pool room and told him I wanted to come back part time and work a while. Q. Do you recall when that was? A. I would say around the first of the year or maybe the last of December. I can't just say for sure. Kinney stated that he went to work, probably on Monday, January 4, in a part-time capacity, "putting on glass on the line." He stated he did not know what Herman DeShane was doing. The record shows that Kinney quit the day after the union election, which was April 1. Queried by Counsel Edwards: Q. Are you permanently laid off or are you on a leave of absence again? A. Well, I just never went back. I had to go have X-rays. I have never went back. Q. Do you have any agreement that you can return if your health becomes better? A. I-suppose I could. . . . I would say yes, if I wanted to. I would say yes, to be truthful. Queried by General Counsel Kullcis: Q. Now, Mr. DeShane has testified that at the time you and he were working on some private project for Mr. Turner for which he paid you that you told him you were planning on retiring? A. No, I never told nobody. Q. Did you tell that to your wife? A. I talked it over with my wife. Q. When did you start talking to your wife about retiring? A. Oh, late in the fall, after we come back from Florida. It appears that Kiney reached the age of 65 in August 1958, and that he applied for social security benefits, as he recalled, in December. Counsel Kulkis cross- examined him in this connection: Q. Would it refresh your memory if I told you I visited you at your home sometime in March or thereabouts and talked to you in your home? A. No, .I wouldn't remember. It could be. Q. We sat in your living room and talked. You recall telling me then you applied for social security in October? A. Well, I wouldn't say now October -I don't think in October. The records will show. I couldn't just say when. Kinney stated that "I hadn't applied when I quit in October, when I went to the funeral. 1 hadn't applied then." He stated that he applied after he, came back but he could not say whether the month was November or December, but he'knew the last day that he worked was October 13 in the forenoon, and that he had been working steadily prior to that time. Kinney made the statement based on his long friendship with Turner that he would do anything reasonable for Turner. The Trial Examiner concluded after carefully observing Kinney and listening to his sincere testimony that he was a witness of integrity and one who would not lie. Certainly in his condition of precarious health and at his age, he would be less likely to prevaricate than would one who was disgruntled and had a motive to subserve by being untruthful. On the contrary, DeShane did not impress the Trial Examiner as being one of impeccable veracity. The fact that DeShane lied about signing the union card is understandable, but Kinney's denial that he told anyone of his. intention to retire until he matured his social security appears the more reasonable to the Trial Examiner. Accordingly, Kinney's testimony is accepted at full value and DeShane's version discredited in the testimonial conflict. Turner stated that he had known Kinney all his life and that he had been in poor health for the last several months and there were days when he couldn't work, that he had been a very good hand and his work was appreciated. Turner said he saw MICHIGAN WINERIES, INC. 475 Kinney as often as 2 or 3 nights a week when he played cards with him and some 25 or 30 "of the boys." Turner stated that Kinney told him in October 1958 that if his health didn't change, he would have to lay off until he got better and then he wanted to come back to work. Turner stated that he would take him back as he would any other employee who had been with him as long as Kinney. Turner testified that he gave Kinney his job back when he asked for it and for that reason discharged DeShane. The Trial Examiner accepts this corroboration of Kinney's statement of the reason why he was rehired. Kinney needed to buy some new tires, automobile licenses, and make other expenditures which he would have been unable to do on social security benefits. It was only reasonable and proper that Turner would reinstate his old friend in a business which he, Turner, owned outright. The Trial Examiner is not impressed with the argument of General Counsel that Turner's reason for discharging DeShane and substituting Kinney was to destroy the Union's majority. This obviously was not a good reason because although Turner knew that in 1957 the election had been lost by the narrow margin of 9 to 7 against the Union, in the December 1958 union campaign 9 out of 17 regular employees had already signed up for the Union and Turner knew it. Further, four of these em- ployees were women and Supervisor Monroe was a fifth. Of the regular male em- ployees, there were only 12 men to be considered, 9 of whom had already signed for the Union. Monroe's vote was challenged and thrown out before the election on April 1. The Trial Examiner concludes that although Turner was nettled and discomforted by his employees turning to the Union, he nevertheless was a realist enough to admit he was beaten and that there was nothing he could do about the situation. The Trial Examiner accepts these explanations and concludes that DeShane was not discriminatorily discharged for his union activity as alleged in the complaint. Accordingly, it will be recommended' that this allegation be dismissed. The Layoffs There is considerable testimony with reference to certain layoffs of employees which occurred prior to the election. The General Counsel also introduced wage and timesheets covering the periods between January 1, 1959, and June 1959. Some 2,500 figures are set down in General Counsel's Exhibits Nos. 12 through 26. Gen- eral Counsel also submitted an exhibit dealing with earnings and hours during this period on employee Wilson Ellis. These figures have all been carefully considered by the Trial Examiner but he,concludes that they are only a part of the record deal- ing with the question as to whether or not Turner occasioned these layoffs because of being displeased at the wearing of union buttons by his employees. Respective counsel dealt with each one of the employees involved and attempted to support their positions by their interpretation of these data. The Trial Examiner concluded on a study of the entire record and the testimonies of the various witnesses that some of the layoffs were unnecessary and were directed by Turner to harass union employees who had displeased him by flaunting their union memberships. Such harassment of employees engaged in protected activities con- stitutes interference within the meaning of Section 8(a)(1) and it will be recom- mended that a cease and desist order be directed to Respondent to refrain from such antiunion tactics. 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 the operations of the Respondent described , in section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of the Act by acts of interference , restraint, and coercion, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Local No. 7, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America is w labor organization ,within. the meaning of Section 2(5) of the Act. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 3. 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.] Grunwald-Marx, Inc. and Amalgamated Clothing Workers of America, AFL-CIO. Case No. 931-CA-3663. April 29, 1960 DECISION AND ORDER On January 15, 1960, Trial Examiner David F. Doyle 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 and the Charging Union filed exceptions to the Intermediate Report together with supporting briefs, and the Respondent filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made 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 the case, and finds merit in some of the General Counsel's and the Charging Union's exceptions. Accordingly, the Board adopts the findings of the Trial Examiner only to the extent that they are consistent with this Decision and Order. The complaint alleges that the Respondent violated Section 8(a) (1) of the Act by threatening that it would never sign a ,union contract. The Trial Examiner found that such statement was made but that it was protected by Section 8(c) of the Act and was therefore not a violation. The record shows the following facts : In the summer of 1959, the Charging Union tried to organize the employees of the Respondent. The Union distributed pamphlets to the employees explaining the benefits which the employees could expect if the Union became the employees' bargaining representative. A day or two after each such distribution, Fred Grunwald, the president of the Respondent, called 127 NLRB No. 58.