Shamrock Foods, Inc.

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the stand. As the record shows that this manager hires and dis- -charges employees, we find in agreement with the Employer that he is a supervisor and exclude him. In Case No. 2-RC-10412, Petitioner seeks a unit of employees at the Beaumart Gift Shop located in Grand Central terminal, New York City. Local 1115-C was permitted to intervene. The parties disagreed as to the status of the manager, whom the Petitioner would include and the Employer exclude. The evidence shows that the man- ager here hires and discharges and responsibly directs employees. We shall therefore exclude the manager' as a supervisor within the -meaning of the Act. The following employees of the Employer constitute units appro- priate for the purposes of collective bargaining within the meaning .of Section 9(b) of the National Labor Relations Act, as amended: (1) All employees of the Employer's cigar and newsstand located -at the Lexington Hotel, Lexington Avenue and 48th Street, New York City, but excluding the manager, professional employees, watch- men, guards, and all supervisors as defined in the Act. (2) All employees of the Employer at the newsstand located at 'Crame's Park and Hunt's Point Road, Bronx, New York, excluding the manager, professional employees, watchmen, guards, and all supervisors as defined in the Act. (3) All employees of the Employer in the Beaumart Gift Shop 'located at Grand Central terminal, New York City, excluding the manager, professional employees, watchmen, guards, and all super- visors as defined in the Act. [The Board dismissed the petition in Case No. 2-RC-10409.] [Text of Direction of Elections omitted from publication.] 'See footnote 6, supra, where the Board held that, as to those managers who had -authority to hire and discharge and exercised responsible direction , these were super- 'visors within the meaning of the Act and excluded them. .Shamrock Foods, Inc. and Chauffeurs, Teamsters and Helpers Local Union No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case No. 9-CA-1757. May 2, 1960 DECISION AND ORDER On January 12,1960, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and 127 NLRB No 70. SHAMROCK FOODS, INC. 523 take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Members Rodgers, Jenkins, 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER Upon the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Shamrock Foods, Inc., Charleston, West Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in -Chauffeurs, Teamsters and Help- ers Local Union No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, by discharging or refusing to reinstate any of its em- ployees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. (b) Interrogating employees in regard to their union activities, affiliations, or sympathies in a manner constituting interference, re- straint, or coercion violative of Section 8(a) (1) of the Act. (c) Soliciting and assisting employees to sign papers requesting the withdrawal of their names from the Union, threatening to con- dition, and conditioning, further employment upon the signing of such withdrawal statements, and threatening employees with the closing of the plant or other economic reprisals before Respondent would have a union in the plant. (d) In any other manner interfering with, restraining, or coercing 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 any other concerted activities for the purpose of collective bargaining or other mutual aid or pro- l In finding that the Respondent had knowledge of the union activities of the four complainants , Member Rodgers does not rely in any respect on the factor of smallness of the plant referred to in the Intermediate Report . Cf. Member Rodgers' dissenting opinion in Bituminous Material & Supply Co., 124 NLRB 1007; see also Diamond Ginger Ale, Incorporated, 125 NLRB 1173. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tection, or to refrain from any or 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 Denver Stevens, Jr., Joseph W. Lane, Clyde R. Ellison, and Kennith Lee Holstein for any loss of pay each may have suffered because of the discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) In the event of resumption of operations, offer to each of the above-named employees immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. (d) In the event operations are resumed, post at its plant in Charleston, West Virginia, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by it immedi- ately upon receipt thereof, and be maintained by it for a period of 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 2In 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." 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 you that : WE WILL NOT discourage membership in Chauffeurs, Teamsters and Helpers Local Union No. 175, International Brotherhood of SHAMROCK FOODS, INC. 525 Teamsters, Chauffeurs, Warehousemen & Helpers of America, or in any other labor organization, by discharging or refusing to reinstate any employees, or in any other manner discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees regarding their union activities, affiliations, or sympathies in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) .of the Act. WE WILL NOT solicit or assist employees to sign papers request- ing the withdrawal of their names from a union; nor threaten to condition, nor condition, further employment upon the signing of such withdrawal statements; nor threaten employees with the closing of the plant or other economic reprisals before we will have a union in the plant. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form, join, or assist the above-named or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. WE WILL make whole Denver Stevens, Jr., Joseph W. Lane, Clyde R. Ellison, and Kennith Lee Holstein for any loss of pay each may have suffered by reason of the discrimination against him. WE WILL, upon resumption of operations, offer to each of the above-named employees immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. All our employees are free to become or remain or refrain from becoming or remaining members of the above-named Union, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. SHAMROCK FOODS, 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. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Chauffeurs, Teamsters and Helpers Local Union No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued his complaint, dated August 21, 1959, against Shamrock Foods, Inc., herein called the Respondent. With respect to the unfair labor practices, the complaint alleges, in substance, that Respondent (1) engaged in specified acts of interference, restraint, and coercion; (2) discharged four named employees on specified dates and thereafter refused to reemploy them because of their union and concerted activities; and (3) by the foregoing conduct engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. In its duly filed answer, Respondent admits the facts alleged as to the nature of its operations and the discharge of the four employees named in the complaint but generally denies all unfair labor practices allegations. Pursuant to due notice, a hearing was held on November 2 and 3, 1959, at Charleston, West Virginia. All parties were represented at the hearing and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to present oral argument at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. After the close of the hearing, the Respondent filed a brief which I have fully considered. Upon the entire record 1 in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Shamrock Foods, Inc., a West Virginia corporation, was engaged, at all times material herein, in the wholesale distribution of numerous food products, including potato chips, candies, pork rinds, and popcorn, at its plant, warehouse, and office located in Charleston, West Virginia. During the 12 months preceding the issuance of the complaint, which was a representative period, Respondent purchased goods, valued in excess of $50,000, which were shipped to its plant at Charleston, West Virginia, directly from points located outside the State of West Virginia. Upon the above admitted facts, I find that, at all times material herein, Respondent was engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent stipulated at the hearing, and I find, that Chauffeurs, Teamsters and Helpers Local Union No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On Saturday morning, February 28, 1959, five of Respondent's employees signed union membership application and authorization cards. During the period from February 28 to March 3, 1959, the employment relationship of four of these card signers was terminated. On March 3, 1959, the fifth card signer signed a statement, dictated by Respondent's vice president and general manager; requesting the with- drawal of his name from the union card which he had signed. The issues litigated in this proceeding are whether the Respondent discharged the four employees because of their union and concerted activities and had engaged in other acts of interference, restraint, and coercion, all violative of Section 8(a)(1) and (3) of the Act. 11 hereby note and correct the following inconsequential but obvious errors in the typewritten transcript of the testimony : Page 4, line 4, "Oral" is corrected to read "All" ; page 33, line 8, "it's" Is corrected to read "as" ; page 94, line 8, "1959" is corrected to read "1958" ; page 133, line 12 , "March 17" Is corrected to read "March 7" ; page 145, line 19, "order" is corrected to read "audit" ; page 146, line 25, "trouble " is corrected to read "total" ; page 305, line 23, "committed " is corrected to read "permitted" SHAMROCK FOODS, INC. 527 A. Discrimination in hire and tenure of employment 1. Commencement of employee self-organization; five employees signed union cards; Respondent operated a small plant where it manufactured pototo chips, popcorn, and bacon rinds. William Walton, the cook, Mr. Hayes, his assistant, and seven women worked in the plant. In addition, Respondent employed eight driver-route salesmen who sold Respondent's products from Respondent's trucks at wholesale to stores, restaurants, and other establishments. Robert Peden was Respondent's vice president and general plant manager. His brother, William Peden, was Re- spondent's president. One evening in February 1959, Joseph W. Lane, one of Respondent's driver-route salesmen, had a blowout while on his route. As a result of the manner in which he parked his truck while he went to telephone General Manager Peden, he received a traffic ticket which resulted in a $17 fine. Lane paid the fine out of his collections from customers and the amount was deducted from his pay the following week. As a result of Respondent's refusal to pay this fine,2 Lane and four other driver-route salesmen of Respondent, Denver F. Stevens, Jr., Clyde Ellison, Kennith Holstein, and Larry Garten, got together to discuss the situation and decided to contact the Union. Thereafter, Lane went to see Frank A. Rebhan, secretary-treasurer of the Union, and received a number of membership application cards which also authorized the Union to act as the collective-bargaining representative of the signers. About 7 a.m. on Saturday, February 28, 1959, the five above-named driver-route salesmen, met at Thabet's Grill, about one block from Respondent's plant, and all signed the union membership application and authorization cards. The signed cards were re- turned to Lane who later turned them over to Rebhan. Lane and Stevens also solicited other employees to sign these union membership, application and authorization cards. Thus, Stevens credibly testified, without con- tradiction, that they told William Walton, the cook, and Hayes, his assistant, that the drivers had signed union papers to join the Union and asked them if they would sign. Lane credibly testified, without contradiction, that they also asked Jackson, another driver-route salesman, to sign a card. However, no other employees of- Respondent signed cards. 2. Respondent discharges four of the card signers Denver F. Stevens, Jr.-On Saturday, September 28, Stevens returned to the plant- from his route about 11 a m. As this was inventory day, Stevens was in the process, of straightening out his truck for inventory, when Manager Robert Peden came over- and tapped him on the shoulder. Peden handed Stevens his check, and said, "You have had it " Stevens asked what Peden meant by that remark. Peden replied, "You have had it . . . you have brought it on yourself," and walked away. Stevens, followed Peden into the office and inquired about his vacation pay. Peden stated, "You don't deserve any. . .. I am not going to give you any." Stevens then went over to William Peden, who was Robert Peden's brother and president of Respondent, and asked about his vacation pay. William Peden stated that he did not handle- these matters and that Stevens would have to talk to Bob Peden about it Stevens, went back and again asked Robert Peden for his vacation money, which was refused. In the ensuing argument, strong language was used by both men.3 2 Lane 'testified that Robert Peden had promised to pay the fine and had told him to pay it out of his collections from customers Robert Peden denied having made such a promise and testified that he told Lane that if Respondent paid this fine they would have, to pay it for everyone. I find it unnecessary to resolve this conflict, as such a resolution is not material to a determination of the relevant issues E The findings in this paragraph are based on the credited testimony of Stevens and Joseph Lane who beard part of the conversation Robert Peden testified that when he discharged Stevens, he said, "Here is your check, your work has been unsatisfactory I am taking the truck over myself I am taking the route over " He did not deny having- made the other statements attributed to him by Stevens and Lane. Moreover, William Peden testified that he was present when his brother discharged Stevens but did not testify in corroboration of his brother's testimony, although lie admitted that Stevens "did say something about his vacation pay." Furthermore, Robert Peden admitted that Larry Garten was the one who immediately took over Steven's route Robert Peden did not impress me as a candid and forthright witness. Under all the circumstances, in- cluding the demeanor of the witnesses, I do not credit Robert Peden's version of what he said when he discharged Stevens ,528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joseph W. Lane-On Monday, March 2, Lane returned to the plant from his iroute about 5 p.m. Robert Peden asked Lane to make out a list of his customers .on his Thursday and Friday runs. When Lane handed Robert Peden his list, the latter asked his brother for the checkbook, wrote out a check, and paid Lane off in lull, telling him that "that was all." In response to Lane's inquiry as to why he was being discharged, Robert Peden stated that Lane's work was unsatisfactory and that it was for the same reason that Stevens was discharged 4 Clyde Ellison-On Tuesday evening, March 3, Ellison returned to the plant from his route and began straightening out his truck. Robert Peden asked Ellison if he had signed the same paper that Joe Lane and Denver Stevens had signed. Ellison understood that Peden was referring to the union membership application cards, and replied that he had signed. Peden then asked if Ellison wanted to go in front of a notary to get his name off that paper. When Ellison hesitated, Peden added, "Clyde . that Union is no good . . . we are not going to have no Union . . . before I will join the Union, I will buy a lock and lock the doors." Peden then offered to lake Ellison before a notary to let him get his name off that paper if he wanted to continue to work there, and asked Ellison if he would sign such a paper. When Elli- son replied in the negative, Peden told him to check out and discharged him.5 Kennith Holstein-After returning to the plant from his route on Tuesday evening, March 3, Holstein was in the process of cleaning his truck and loading it up for the next day's work when he overheard the conversation between Robert Peden and Elli- son, hereinabove set forth. As Peden was passing Holstein's truck to go to the of- fice, Holstein asked him "what it was all about." Peden replied that he would tell him later. Holstein then stated that if it was about a union paper, he had signed ,one too. Peden then asked Holstein if he wanted "to go to a notary public and sign a paper?" When Holstein replied in the negative, Peden told him to check out. Holstein understood that as a discharge and therefore asked about his pay. Peden told Holstein to come back the following Saturday to get his pay. Saturday was the regular payday.6 3. Respondent gets the fifth card signer to sign a statement withdrawing from the Union On the evening of March 3, after the discharge of Ellison and Holstein , Robert Peden came over to Larry A. Garten while the latter was getting ready to load his itruck, and asked if Garten had signed one of those union cards . Garten answered ,that he had signed a union card. Peden then stated that if Garten wanted to con- 4 The findings in this paragraph are based on the credible and uncontradicted testimony of Lane c The findings in this paragraph are based on the credible testimony of Ellison and 'Kennith Holstein, who was nearby and overheard the conversation. Robert Peden ad- rinitted that he discharged Ellison on the evening of March 3. He denied having made the statements attributed to him by Ellison and Holstein, and testified that he told Ellison that "we are going to have to lay you off for several reasons, your work, com- plants, and you are not getting out and getting no new businest." Robert Peden did not impress me as a candid and forthright witness. At times he was evasive, and at other times displayed a reluctance to disclose facts which might be regarded as harmful to Respondent's position. This was particularly demonstrated by his testimony relating to the incident in which Larry Garten signed a union withdrawal paper before a notary public, as set forth in detail infra. Upon the basis of the entire record, including my observation of the demeanor of the witnesses while testifying under oath, I do not credit Robert Peden' s denials and testimony as to what he told Ellison at the time of his discharge. 6 The findings in this paragraph are based on the credible testimony of Holstein. Robert Peden denied that he and Holstein made the statements set forth in the text. He denied discharging Holstein and testified that when Holstein learned on the evening of March 3 that "I discharged Mr. Ellison," Holstein stated that he would quit too and asked to be checked in. Peden further testified that he told Holstein "Well, that's your privilege," checked Holstein in, and told him to come back Saturday to pick up his check. Holstein denied telling Robert Peden that he was quitting. I have already 'found Robert Peden not to be a credible witness. Moreover, in a letter addressed to the Board's Regional Director and dated August 14, 1959, relating to the Union's unfair labor practice charges, Presi- dent William Peden stated, "After discharging Lane Monday, March 2, 1959, we 'then decided on March 3, the next day, to discharge Kennith Holstein and Clyde R Ellison, which we did on March 3, 1959." And in its answer to the complaint, dated August 28, 1959, and signed by W H. Peden, president, Respondent "admits that it discharged the four employees named in Section 6(a) of said complaint." SHAMROCK FOODS, INC. 529 tinue to work there, he would have to withdraw his name from the Union, and asked if Garten wanted to sign a paper to get released from the Union. Feeling that he needed the job because his wife was expecting a baby, Garten replied in the affirma- tive. They went into the office where Robert Peden telephoned to his brother, William, and asked his brother what to do. William dictated to Robert over the telephone a statement requesting the Union to withdraw the signer's name from the union list which he had recently signed at Thabet's Grill at South Charleston, West Virginia. As William was dictating this statement to Robert, the latter in turn re- peated it to Garten who, at Robert's instructions, wrote it down on a piece of paper in Robert's presence. William Peden then telephoned to the South Charleston police station and asked Sergeant Erwin if he was a notary. When Erwin replied in the affirmative, William Peden stated that he had a paper which he wanted notarized and would bring "the fellow" over. William then informed his brother, Robert, that there was a notary at the South Charleston police station. Robert Peden then drove Garten to the South Charleston police station where Garten copied the statement on another piece of paper which he signed before the notary. At Robert Peden's instructions, Garten addressed an envelope to the Union with the Respondent's return address in the upper left-hand corner. Garten returned the notarized statement with the addressed en- velope to Robert Peden, who later mailed it by registered mail. The statement was received by the Union's secretary-treasurer about March 12. Garten continued to work for the Respondent until about April 12, when he voluntarily quit .7 4. The Respondent's defense William and Robert Peden testified that the Respondent's profit and loss state- ment for 1958 was completed about February 20, 1959; that this statement still showed a net loss despite an increase in gross sales over the preceding year; that they therefore felt that some of their eight driver-route salesmen were not account- ing for all their merchandise or cash receipts; that they were suspicious of Stevens, Lane, Ellison, and Holstein in this respect; and that because of this suspicion they decided at that time to discharge these four salesmen. Robert Peden further testified that at the same time they also decided that they would not effect the discharges until they had first made arrangements for replacements, and that was why on February 20, 1959, they evolved the time schedule of discharging Stevens on February 28, Lane on March 2, Ellison on March 3, and Holstein about 2 weeks later. In addi- tion, Respondent asserted a variety of specific reasons for the selection of each of the four men for discharge, including drinking on the job, low sales record, not getting new business, customer complaints, and the elimination of Lane's route. Admittedly, suspicion of shortages in merchandise or cash receipts was not men- tioned to any of the men as the reason for their discharge. Nor, as previously found, were any of the other alleged specific reasons mentioned to the respective employees at the time of their discharge. Moreover, in a letter addressed to the Board's Regional Director on March 7, 1959, and signed by President William Peden, Respondent lists six reasons for the discharge of Stevens, but does not mention any suspicions of shortages in merchandise or cash receipts as one of the reasons. And Respondent's report to the unemployment compensation commission as to the reason for Lane's separation, also does not mention suspicion of shortages in merchandise 7 The findings in this section are based on the credible testimony of Garten, Erwin, and Rebhan, the admissions of Robert and William Peden, and the reasonable inferences to be drawn from the foregoing. Robert Peden denied having made the statements to Garten, set forth in the text, or having directed Garten to address the envelope to the Union, or having received the notarized statement or mailed it to the Union. Robert Peden testified that Garten came to him and stated that he had signed up for the Union but had reconsidered and wanted to withdraw, and asked for assistance in this respect. Robert Peden further testified that he told his brother, William, about it on the telephone and was told that "we can't do nothing about that." William Peden did not corroborate Robert in this respect. He further testified that the idea of a "notary" was first brought up by Garten. Garten denied having made the statements attributed to him by Robert Peden. I have already found Robert Peden not to be a credible witness. His test mony with respect to this incident is evasive, at times self-contradictory, at other times in- consistent with that of his brother, William, and in general discloses a lack of candor and a reluctance to disclose the true facts. Under all the circumstances, including the admissions of Robert and William as to the part they played in this incident, I neither credit Robert Peden's denials nor his testimony which is contrary to the findings set forth in the text 560940-61-vol 127-35 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or cash receipts, or the alleged discontinuance of Lane's route. While the Re- spondent claimed that the time schedule for affecting the discharge of these four men was adopted about February 20, 1959, so that arrangements for replacements could be made before the discharges, Robert Peden further testified that Holstein voluntarily quit on March 3 before he was scheduled for discharge. However, in another letter to the Board's Regional Director, dated August 14, 1959, President Peden states that "after discharging Lane Monday, March 2, 1959, we then decided on March 3, the next day, to discharge Kennith Holstein and Clyde R. Ellison, which we did on March 3, 1959." [Emphasis supplied.] And, as previously found, Holstein was in fact discharged on March 3. Moreover, William Peden testified that three of the replacements, Gerrit, Burford, and Estep, were not hired until a week or two after the discharges, and that there was a short period "in between that we didn't have someone out there servicing all our routes." With respect to Respondent's assertion that Lane was discharged because his route was eliminated, Larry Garten credibly testified that he took over Lane's route for about 9 weeks after the discharges. Although the specific alleged shortcomings of Stevens, Lane, and Ellison were claimed to have existed for a long time prior to their discharge, all three credibly testified, and I find, that no complaints had ever been made to them individually either about any shortcomings or derelictions or about their sales records.8 Admittedly, none were given any prior warning or inkling of their impending discharge, which, Respondent claims, was decided upon about February 20, 1959. Moreover, Respondent neither adduced nor offered any probative evi- dence to show that the sales records of the discharged employees was any worse than that of the four driver-route salesmen, who were retained. Indeed, Stevens credibly testified, without contradiction, that his sales volume showed an increase of about $200 during the last 3 months of his employment, and that he had obtained new sales places. Furthermore, only 2 days before Stevens' discharge, Robert Peden asked Stevens if he intended to take a vacation or to take pay in lieu thereof When Stevens replied that he would take his vacation and planned to go to Florida with his father-in-law, Peden stated "that was perfectly alright with him but take it before August 17." 9 And, according to the credible and undenied testimony of Ellison, only 2 weeks after the discharges Ellison and his father were in Robert Peden's office when Peden offered to reemploy Ellison at an increased wage scale if he would withdraw his name from the Union.io Finally, the statements made by Robert Peden at the time of the discharge of Ellison and Holstein, and the statements to Garten immediately thereafter in connection with his signing a paper withdrawing his name from the Union, completely refute the reasons asserted by Respondent for the discharges. In view of all the foregoing, and upon consideration of the entire record as a whole, I am convinced and find that the reasons asserted by Respondent were not the true motivating causes for the discharges. 5. Concluding findings On Saturday morning, February 28, 1959, five of Respondent's driver-route sales- men, including the four dischargees, signed union membership application and 8 I do not credit Robert Peden's contrary testimony in this respect. 90n direct examination, Robert Peden denied having had such a conversation, and testified that he told all the salesmen at a meeting in December that all those employed 1 year or more would be eligible for a vacation . On cross-examination , he admitted that Stevens might have discussed his vacation with him after the December sales meeting. On redirect examination , he denied having had any conversation with Stevens in the month of February 1959 about vacations, and testified, in response to leading questions by Respondent's counsel, that if such a conversation occurred , it was during the period between December and the end of January. Under all the circumstances, and for the reasons previously mentioned , I do not credit Robert Peden's contrary testimony. 10 Ellison testified to two conversations with Robert Peden about a week or two after his discharge ; one, when Peden came to Ellison's home and asked Ellison about going back to work, and the other, the following day in Peden's office where Peden made the offer of reemployment set forth in the text. Robert Peden testified before the above testimony of Ellison was adduced. On cross-examination, in response to a question by the General Counsel as to whether at any time after Ellison's discharge Peden ever went out to Ellison's place and asked him to come back to work, Peden testified, "Never." Ellison's testimony with respect to the second conversation in Peden's office thus stands undenied. In any event, for reasons already set forth, I do not credit Robert Peden's testimony which may conflict with that of Ellison. SHAMROCK FOODS, INC. 531 authorization cards. Stevens and Lane also unsuccessfully solicited William Walton, employed at the plant as a cook for about 20 years, his assistant, Hayes, and Jack- son, a driver-route salesman, who was an old-time employee. Within the next few working days, four of the card signers were summarily discharged without any prior warning, three of them in the middle of the workweek and without replacements having been obtained Stevens was given the cryptic statement that he had brought it on himself, and was denied any vacation pay although he had been employed about 1 year. Lane was told that he was being discharged for the same reason as Stevens. Ellison was first asked if he had signed the same paper as Stevens and Lane. When Ellison replied in the affirmative, Robert Peden stated that he would lock the doors before he would have a union, and that Ellison would have to get his name off that paper if he wanted to continue to work there Only when Ellison refused Peden's offer to sign a union withdrawal paper before a notary, was he discharged. When Holstein volunteered that he had also signed a union card, Peden asked if he would go before a notary public to sign a withdrawal paper. When Holstein refused, he also was discharged. At the same time, Robert Peden asked Larry Garten, the fifth card signer, if he had also signed a union card. Garten replied in the affirmative. When Peden told Garten that he would have to sign a paper withdrawing his name from the Union if he wanted to continue to work there, Garten agreed to do so Thereupon, Robert Peden telephoned to his brother, William Peden, who dictated the withdrawal statement to Robert, who in turn dictated it to Garten. William then made arrangements with the notary public in the South Charleston police station and relayed this information to his brother, Robert, who drove Garten to the police station where the withdrawal paper was signed and notarized and subsequently mailed to the Union by Robert Peden. A few weeks later, Robert Peden offered to reemploy Ellison at an increased rate, if he would withdraw his name from the Union. Thereafter, Respondent asserted a number of varying reasons which were seized upon as pretexts or afterthoughts in an effort to justify the discharges. I find no merit in Respondent's contention that the Pedens had no knowledge of the union activity of the four men prior to the discharges. It is not denied that the withdrawal statement, which William Peden dictated over the telephone for Garten to sign, referred to the paper which Garten "recently signed at Thabet's Grill." In the absence of any explanation, this indicates Peden's knowledge of the signing of the cards at Thabet's Grill on Saturday morning, February 28 In view of this statement, the small size of the plant," the statements made by Robert Peden at the time of the discharges, the timing and manner in which the discharges were effected, the fact that no noncard signer was discharged or threatened with discharge, and all the surrounding circumstances, I am convinced and find that William and Robert Peden were aware of the union activity and the signing of union cards by the employees before their discharge 12 Upon the basis of the entire record considered as a whole, I find that the Respond- ent discharged and refused to reemploy Denver F. Stevens, Jr., Joseph W Lane, Clyde Ellison, and Kennith Holstein because of their union activity and signing of union membership application and authorization cards, and, in the case of Ellison and Holstein, also because of their refusal to sign statements withdrawing their names from the union list. By such conduct, the Respondent has discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the Union in violation of Section 8(a) (3) and (1) of the Act. B. Interference, restraint, and coercion I find that by interrogating employees as to whether they had signed union papers or cards, by telling an employee that Respondent was not going to have a union and would buy a lock and lock the doors before it would have a union, by asking employees if they wished to sign a paper before a notary to withdraw from the Union, by telling employees that they would have to sign a paper to withdraw from the Union if they wished to continue to work for Respondent, by dictating to an employee a statement requesting that his name be withdrawn from the union list and transporting said employee to a notary public to have his signature to such a statement notarized and thereafter mailing the signed statement to the Union, and by offering to reemploy one of the discriminatees if he would withdraw his name from the Union, the Respondent has interfered with, restrained, and coerced 11 See, e g , Bituminous Material & Supply Co., 124 NLRB 1007 In view of this finding, I deem it unnecessary to determine whether William Walton was a supervisor within the meaning of the Act, as the General Counsel contended 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees in the exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 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 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 thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the. Act. I have found that Respondent discriminated with respect to the hire and tenure of employment of Denver Stevens, Jr., Joseph W. Lane, Clyde R. Ellison, and Kennith Holstein The record shows that Respondent sold its business on September 14, 1959, but continues to own real estate and to exist as a solvent corporation. I will therefore recommend that Respondent make whole each of the above-named employees for any loss of earnings each may have suffered by reason of the Respond- ent's discrimination against him, by payment to each of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to September 14, 1959, less his net earnings during said periods, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. I find no merit in Respondent's contention that no backpay should be awarded in any event to Ellison and Lane because William Peden's audit of their accounts, undertaken and completed after the discharges, showed shortages for the period from July 1, 1959, to the date of their discharge and because at the time of his discharge Ellison signed a check for $13.20, owing to Respondent, which was re- turned by the bank with the notation, "unable to locate" account I find the facts to be as follows with respect to the check incident. At 1 he time of his discharge, Ellison owed Respondent $13.20, after deducting his pay for the 2 days he worked that week. Ellison stated that he did not have the money and asked Robert Peden what to do about it. Robert Peden stated that he would write out a check for that amount, have Ellison sign it, and Peden would hold the check until Ellison brought the money in. Ellison agreed to this arrangement Peden then took one of his wife's check blanks, which was drawn on the Charleston National Bank, filled it out for the amount of $13.20, and had Ellison sign it. At at subse- quent time Peden wrote on the check the notation "for money short" and deposited the check although he admittedly did not know whether Ellison had an account at that bank 13 With respect to the audit of the accounts of Ellison and Lane, the record does not convince me that William Peden's audit is conclusive as to any liability of Ellison and Lane for the alleged shortages. Thus, the bonding company refused to accept the audit as conclusive and denied Respondent's claim with respect to Lane and was still investigating the claim with respect to Ellison. Both Lane and Ellison denied liability for the alleged shortages. Nor, presumably. did Respondent itself attach too much weight to the results of this audit, or to the check incident con- cerning Ellison. Thus, it made no effort to institute any proceedings against Lane and Ellison. ,On the contrary, as previously found, Robert Peden offered to reemploy Ellison at an increased wage scale a few weeks after his discharge, but on condition that Ellison withdraw his name from the union list. 18 The findings In this paragraph are based on the credible testimony of Holstein and Ellison and admissions of Robert Peden The latter testified that the notation "for money short" was written on the check before Ellison signed It. He admitted that the notation appears in different ink from that of the rest of the check but claims that his pen ran out of ink and that a different pen was used , and testified that the entire check was made out with one pen which Peden then handed to Ellison for his signature. Peden further testi- fied that Ellison promised to bring the money in a day or two and that, when Ellison failed to keep his promise, he deposited the check. He could not explain why, in view of his admission that he never knew whether Ellison had an account at the Charleston National Bank, he used a check drawn on that bank. Under all the circumstances, and for the reasons previously given, I do not credit Robert Peden's contrary testimony. UNITED HATTERS, CAP AND MILLINERY WORKERS, ETC . 533 I will also recommend that, in the event the Respondent resumes operations, it offer to each of the above-named employees immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges, and that it post in its plant copies of the notice attached hereto marked "Appendix A." In view of the nature of the unfair labor practices, there exists the danger of the commission of other unfair labor practices proscribed by the Act. I will accordingly recommend that Respondent cease and desist from in any other manner infringing upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, 1 make the following: CONCLUSIONS OF LAW 1. Chauffeurs, Teamsters and Helpers Local Union No. 175, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Denver Stevens, Jr., Joseph W. Lane, Clyde R. Ellison, and Kennith Lee Holstein, thereby discouraging membership in the above -named labor organization , Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By the foregoing conduct, by interrogating employees as to whether they had signed union papers or cards, by telling an employee that Respondent was not going to have a union and would buy a lock and lock the doors before it would have a union, by asking employees if they wished to sign a paper before a notary to withdraw from the Union, by telling employees that they would have to sign a paper to withdraw from the Union if they wished to continue to work for Respond- ent, by dictating to an employee a statement requesting that his name be withdrawn from the union list and transporting said employee to a notary public to have his signature to such a statement notarized and thereafter mailing the signed statement to the Union , and by offering to reemploy one of the discriminatees if he would sign a paper withdrawing from the Union, the Respondent has interfered with, restrained, and coerced the employees in the exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(a):(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] United Hatters, Cap and Millinery Workers International Union, AFL-CIO and Korber Hats, Inc. Case No . 1-CB-530. May °L, 1960 DECISION AND ORDER On July 28, 1959, Trial Examiner Max Al. Goldman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. 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 Bean and Jenkins]. The Trial Examiner concluded that the Respondent had restrained 127 NLRB No. 75.