Waldensian Bakeries, Inc.

WALDENSIAN BAKERIES, INC. 1137 agents or countermen,2 office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 2 The Employer urges the inclusion of rental agents, otherwise referred to as counter- men, as part of the unit . The Petitioner opposes their inclusion The Employer's Cleveland, Ohio, branch involved herein handles both long- and short-term leasing of trucks and long-term leasing of automobiles . The operation consists of a garage where the mechanics and helpers are engaged in the repair and maintenance of vehicles, a lot for storage , and a service area where servicemen check, change , and repair tires, change oil, lubricate and supply gas, wash and clean , and generally prepare vehicles and any additional equipment for delivery to customers . Servicemen also deliver vehicles and any equipment to the customer on the premises or at the customer 's location , and, accom- panied by a mechanic , deliver replacements for ]eased trucks which break down. Occa- sionally a mechanic will perform some of the service duties and similarly a serviceman may install a battery or adjust brakes. The rental agents work behind a counter in a structure housing the office and adjacent to the garage and service area. They take telephone as well as personal orders from customers for equipment and vehicles , inform the customer of the type available , prepare the necessary rental agreements , obtain the required information , and arrange that the proper vehicle is serviced and ready for delivery at the agreed time. Although rental agents may occasionally deliver equipment or clean a vehicle for delivery during rush periods, their primary duties are in the nature of office clerical employees as distinguished from job functions of the mechanics and servicemen who are engaged in manual labor. Accordingly, we shall exclude rental agents from the appropriate unit. The bookkeeper is also excluded as an office employee A utility man handles the duties of a rental agent for the first hour each morning but is engaged for the remaining hours either as a service- man or as a mechanic's helper. As a major portion of his time is devoted to work per- formed by employees in the unit , the utility man is included. Waldensian Bakeries, Inc. and Teamsters Local Union No. 61, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America . Case No. 11-CA-1708. August 22, 1961 DECISION AND ORDER On March 28, 1961, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and is engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report at- tached thereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint, and recommended that these particular allegations be dismissed. Thereafter, the Respondent filed exceptions to the Inter- mediate Report with a supporting brief. 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 McCulloch and Members Rodgers and Fanning]. 132 NLRB No. 97. 1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Interme- diate 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 the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Waldensian Bak- eries, Inc., Valdese, North Carolina, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discharging any employee because he was responsible or be- lieved to be responsible for employees acting in concert to seek a wage increase or to engage in any other protected concerted activity for their mutual aid and protection. (b) Reprimanding and threatening employees with job transfers, discharges or other economic reprisals for having acted in concert to seek a wage increase, or for engaging in any other protected concerted activity for their mutual aid or protection. (c) Interrogating employees to ascertain who was responsible for their conduct in engaging in protected concerted activity for their mu- tual aid or protection, in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a) (1) of the Act. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to engage in or refrain from engaging in protected concerted activity for the purpose of their mutual aid or protection. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Lucius Randall immediate and full reinstatement to his former or to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of his dis- charge, in the manner set forth in the section of the Intermediate Re- port entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due un- der the terms of this Order. (c) Post at its office in Valdese and Charlotte, North Carolina, copies of the notice attached to the Intermediate Report marked "Ap- WALDENSIAN BAKERIES, INC. 1139 pendix A." 1 Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by the Company's representative, be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Eleventh Region, in writ- ing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that Respondent violated Section 8(a) (3) of the Act. 1 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, ithere 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." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF • THE CASE Upon charges filed by Teamsters Local Union No. 61, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, the General Counsel of the National Labor Relations Board, by the Regional Director for the Eleventh Region (Winston-Salem, North Carolina), issued his complaint, dated Jan- uary 4, 1961, against Waldensian Bakeries, Inc., herein called the Respondent. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleges, in substance, that Respondent (1) discharged Lucius E. Randall on September 12, 1960, because he engaged in concerted activities with other employees for the pur- pose of collective bargaining and other mutual aid and protection; (2) engaged in specified acts of interference, restraint, and coercion; and (3) has thereby violated Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. In its duly filed answer, Respondent admits the allegation with respect to Respondent's operations and that Randall was discharged but denies, gen- erally, the unfair labor practice allegations. Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin at Hickory, North Carolina, on January 31, 1961. The General Counsel and the Re- spondent appeared and were represented at the hearing, and were afforded full opportunity to be heard, to examine and cross-examine -witnesses, to present oral argument, and to file briefs. Respondent's motion to dismiss the. complaint, made before the close of the hearing and upon which I reserved ruling, is denied in accord- ance with the findings and conclusions hereinafter made. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Waldensian Bakeries, Inc., a North Carolina corporation with its plant located in Valdese, North Carolina, is engaged in the production and sale of bread and other baked goods. During the past year, Respondent received at its North Carolina plant materials, valued in excess of $50,000, from points outside the State of North Caro- lina; during the same period, Respondent sold and shipped from its North Carolina plant materials, valued in excess of $50,000, directly to points outside the State of North Carolina. Upon the above admitted facts, I find.that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 614913-62-vol. 132-73 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IL THE CHARGING PARTY The parties stipulated, and I find, that Teamsters Local Union No. 61, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, the Charging Party herein, is a labor organization within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES Respondent employed about 12 relay drivers under the supervision of Earl B. Searcy, Jr., herein called Searcy, who was in charge of the transport division and was an admitted supervisor within the meaning of the Act. Lucius Randall had been em- ployed by Respondent as a relay driver since April 1955. On Saturday, September 3, 1960, Randall and five other relay drivers got together in a group and spoke to Searcy about a raise. During the next few days, Searcy interviewed four of these drivers, individually, in connection with the September 3 incident. On September 12, 1960, Randall was discharged. The next day, Searcy also spoke to the sixth relay driver of the group. The issues in this proceeding are (1) whether Randall was discharged because of his concerted activities in connection with the group's request for a wage increase, and (2) whether, during the individual interviews with the drivers, Searcy engaged in conduct which constituted interference, restraint, and coercion within the meaning of Section 8 (a)( I) of the Act. A. The issue as to whether Respondent violated the act by the discharge of Lucius Randall 1. Arrangements to talk to Searcy as a group During the summer of 1960, Randall asked Searcy for a raise. Searcy stated that he would see what he could do about it. When Randall spoke again about the raise to Searcy about a month later, Searcy replied that he had not heard anything yet. Other drivers thought that it might do some good to get together and talk to Searcy in a group. Randall agreed to join such a group and thereafter spoke to some of the drivers about it. Thus, he asked Alvin Wellmon one night if he wanted to go ask for a raise. Wellmon replied that he did not think it would be any use. Randall stated that they would go and see and that the meeting would be on Saturday. Ran- dall also told James Hutchins that the rest of the boys were going to get together and ask for a raise, and that he would like to have Hutchins go with them. Randall went to see Harper Harris, who was on vacation that week and was working at a neighbor's home. He told Harris that the rest of the boys had gotten together and were going to see Mr. Searcy about a raise on Saturday morning. Harris replied that he would go if the rest of them were going. The findings in the preceding paragraphs are based on the credited and uncon- tradicted testimony of Randall, Wellmon, Hutchins, and Harris, four of the six drivers who comprised the group which met with Searcy. 2. Group of six drivers meets with Searcy on Saturday, September 3 On Saturday morning, September 3, the group of six drivers 1 met Searcy on the loading platform. Randall was the first one to speak up and told Searcy that the boys got together and wanted to talk to him about a raise.2 Mr. Searcy agreed to listen to them. They all went into the warehouse, where the six drivers grouped themselves around Searcy, who was sitting. There is no serious dispute as to what was said in the warehouse. Mr. Searcy asked each one in the group what he had to say. When it came to Randall's turn, he merely stated that he felt that he ought to be making more than $1.36 an hour. Harper Harris did most of the talking and explained the reasons why he should have a raise. When Harris finished, Searcy asked if anyone else had anything to say. No one did. Harris then stated that Searcy ought to be able to let them know something within 2 weeks. The men then left. I Daniel Leger, Alvin Wellmon, Connolly Smith, James Hutchins, Lucius Randall, and Harper Harris z This finding Is based on the credited testimony of Randall , Leger, Smith, and Harris. Wellmon testified that Randall said that the men wanted to talk to Searcy but he did not remember whether Randall mentioned the subject matter. Hutchins merely testified that Randall told Searcy they wanted to talk to him. He was not asked whether Randall mentioned the subject matter. Searcy testified that he did not exactly remember what Randall said first. WALDENSIAN BAKERIES, INC. 1141 3. Searcy interviews drivers , individually During the next week, Searcy called Leger, Wellmon, Smith, and Hutchins, in- dividually, into his office. Searcy contacted Leger at his home because he was on vacation that week. Searcy asked Leger why they had "come up and humiliated him and hurt his feel- ings about asking for a raise." Leger replied that ,it was neither his intentions nor the intentions of the rest of the drivers to humiliate and hurt his feelings, but that they just wanted a raise. Searcy asked Leger if he liked working for him and if he liked his job. Leger stated that he liked his job and enjoyed working there . Searcy asked if Leger would like to go back to work on his old job inside . Leger replied in the negative, adding that he was happy to be outside as a relay driver. Searcy then asked if Leger knew who was the "ramrod or leader" of the group which had come and asked for the raise. Leger stated that he did not know. In the interview with Wellmon, Searcy stated that he "ought to let Harris go now" and that he did not know what Harris meant about "that two weeks business." Well- mon stated that Harris did not have anything more to do with it than the rest of them, and that they just thought they could get a raise that way. Searcy then said that he did not mind them coming to him one at a time but that he did not like them all coming to him at one time and "hit him like that." As Wellmon started to leave, Searcy stated that he thought "something should be done about this" and asked Wellmon what he thought . When Wellmon replied that the best thing to do was to forget it, Searcy stated, "I guess so." In the interview with Smith, Searcy stated that the men had hurt his feelings by "ganging up" on him and that he thought he had a better bunch of boys working for him than to "gang up on him ." Smith replied that he did not look at it that way and that they just thought they would try to get him to help them get a raise. Searcy repeated that he thought he had a better bunch of boys than to "gang up on him," and asked who the leader was who started it . Smith stated that he did not know of any leader, that they all just got together and decided to go in and ask his help in getting a raise, and that he did not look at it as "ganging up on him." Searcy said that something was going to have to be done about "ganging up on him" like they did, adding that "I guess all of you know that you can be replaced." Smith replied that he knew that. In the interview with Hutchins, Searcy wanted to know why he was in there ask- ing for a raise since he had only been working as a driver about 3 or 4 weeks. Hutchins replied that "I didn't want to come but the boys wanted to come so I came with them." The findings in the preceding paragraphs are based on the credited and uncontra- dicted testimony of Leger, Wellmon , Smith, and Hutchins. Searcy did not deny having made the statements or having asked the questions hereinabove set forth. 4. The discharge of Randall on Monday, September 12 As Randall was preparing to make his regular run to Charleston at a quarter to 3 on Monday afternoon, September 12, he was called into the office by Searcy . Searcy told Randall that he seemed to be dissatisfied working there and that he better look for another job. When Randall asked when this would become effective , Searcy stated, "as of now," and handed Randall two checks, dated September 10. One check was for the preceding week, and the other was for Sunday and Monday. Randall stated that "just to set the records clear I wasn't the one that got all of this up. I was just with the group." Randall returned to Searcy's office the next day to get his separation papers. The separation papers gave as the reason for his termination that he "did not seem satis- fied with his work." In reply to Randall's question as to what kind of recommenda- tion Searcy could give him, Searcy stated that "the only thing I can say is that it seemed you were dissatisfied." 5. Searcy interviews Harper Harris , the last member of the group Before leaving the office, Randall told Searcy that Harper Harris was worried about himself and was waiting to see Searcy.' Searcy told Randall to send Harris in. Harris came into the office and stated that Searcy had called the other members of the group into his office and had talked to them , that Searcy had then called Randall in and had discharged him, that Harris figured he would also be discharged, and that he therefore wanted to find out what "the score is." Searcy replied that he had thought about letting Harris go because of the "way you spoke up and talked." Harris stated that he did not think he had done anything wrong, that he had just 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked for a raise, and that if he had thought something was going to be wrong he would not have gone in there. After about 15 minutes of further discussion, Searcy finally stated that he did not intend to fire Harris. The findings in the preceding paragraph are based on Harris' credited testimony, which is not inconsistent with that of Searcy. 6. Respondent's asserted defenses to the discharge At the opening of the hearing, counsel for Respondent stated that Randall was discharged because he "was completely incompatible with his job" and "was never satisfied," and that the alleged concerted activity had nothing to do with it. Searcy testified that Randall was discharged "because of the attitude, that he was not happy with his work," that "he had shown a dissatisfied attitude for some years ... actu- ally from practically the time he was employed" and that this attitude got worse during the last year. Searcy then proceeded to give the following examples of Randall's dissatisfaction during the last year: . Searcy testified that one of the things that was so "dissatisfying" to Randall was the fact that there were no "recaps" available at the Charlotte terminal. A "recap" is a piece of paper which indicates the types of bread or cake and the quantity which goes to each route, and is used instead of the individual orders. Searcy testified that Randall complained about this lack every week for a period of 6 months, and that about a year before his discharge the "recap" system was instituted at the Charlotte terminal by employing a part-time girl full time. On cross-examination, Searcy ad- mitted that the Charlotte location was Respondent's only area of that size that did not have "recaps," that the use of "recaps" is "all right" and "has its advantages," and that he would have instituted the "recap" system himself if he had thought of it before Randall mentioned it. Harry Gibson, the Charlotte terminal manager, also admitted that the "recap" system is "working all right" and he did not think it should be eliminated. Searcy testified that Randall was then "dissatisfied" because the duplicate of the order was not torn apart on the perforated line, and that he complained about that for a few months until they got the lady to start tearing them apart in the Charlotte office. They began doing this "some months" before his discharge. On cross- examination, Searcy testified that he was "not sure" whether the orders are torn apart in Respondent's other locations, but he admitted that tearing the orders apart does cut down on the time required to get the orders up. Searcy further testified that Randall had also complained for about 3 or 4 months because there was no drinking fountain at the Charlotte warehouse, and that they finally installed an electric drinking fountain there sometime in August. On cross- examination, Searcy testified that there were 15 employees coming and going at the Charlotte warehouse and admitted that he thought it was a good idea to put a drink- ing fountain in that terminal. Terminal Manager Gibson admitted having heard "some" similar complaint "occasionally" from the other employees and that he him- self had suggested to Searcy once or twice about getting a water fountain. Searcy further testified that Randall complained "for some few weeks or a month or so" about it being too hot and the need for a fan, and that he had a large floor fan installed in the Charlotte warehouse late in August. On cross-examination Searcy admitted that at the same time he also bought six fans for use in Respondent's Valdese plant. Randall had a run from Valdese to Charlotte. After he unloaded at the Charlotte terminal, he would wait for the Stateville relay driver to come through and would help him unload before coming back to Valdese. About a week before Randall's discharge, Searcy told Randall that they would have to cut down the time he spent at the Charlotte warehouse, and that thereafter on Mondays and Tuesdays he should return from Charlotte immediately upon unloading. Searcy admitted that Randall did comply with Searcy's instructions in this respect. Searcy testified that sometime after the beginning of Randall's last full week of employment, Searcy was informed by Foreman Waldrop that Randall had told him that Searcy had cut some hours off Randall's time and that Randall would arrange to get those -hours back in one way or another even if he had to stay in Charlotte to do so. Searcy further testified that he thereupon decided that he had better talk- to management and that he reported what had gone on at a meeting held on Friday night, September 9, and attended by General Manager John Rostan, Jr., Vice Presi- dent Price Rostan, and Comptroller ahd•Director Rutherford. Searcy further testi- fied that the decision to discharge Randall was' made at that meeting by General Manager Rostan, who told Searcy to replace Randall. WALDENSIAN BAKERIES, INC. 1143 However, on cross-examination Searcy admitted that he was present on Decem- ber 2, 1960, when Mr. Ball, a representative of the General Counsel, met with General Manager Rostan and Comptroller and Director Rutherford to discuss the reason for Randall's discharge, that at that time General Manager Rostan told Ball that Randall was discharged because it had been reported that he was having an affair seeing a lady at the Charlotte terminal, and that Searcy did not at that time dispute Manager Rostan's reason. Terminal Manager Gibson admitted that he was asked by Rutherford about Randall's girl friend about "a month or so" before Randall's discharge. Searcy admitted that at the meeting at which General Manager Rostan told him to fire Randall "this lady thing business was mentioned," but again testified that "the real reason why he (Randall) was fired was that Lucius was not happy with his work and could not be satisfied." Respondent did not call General Manager Rostan, the very person who admittedly made the decision to discharge Randall, as a witness nor explain its failure to do so. Under these circumstances the inference is warranted that his testimony would not have been favorable to Respond- ent's position .3 Randall had been employed by Respondent as a relay driver for over 5 years. At the time of his discharge, he had seniority in point of service over about nine of Respondent's other drivers. Respondent's corrective measures undertaken in re- sponse to Randall's "complaints" would lead one to believe that either Randall was the most indispensible employee or that the "complaints," which a more enlightened management might have regarded as in the nature of suggestions for improved effi- ciency and working conditions, were meritorious and the corrective measures bene- ficial to both management and the employees. It is obvious from the foregoing that the latter situation was the case. The "recap" system admittedly was a more effi- cient method of operation, and Searcy admitted that he himself would have insti- tuted it if he had thought of it before Randall mentioned it. In fact, it was a sufficiently meritorious idea to warrant employing a part-time lady full time. Yet, this was stressed as one of the chief examples of Randall's dissatisfaction, although it admittedly occurred about a year before his discharge. The same is true with respect to Randall's other alleged "complaints," which admittedly existed for some time prior to his discharge. Thus, Searcy admitted that tearing the orders apart cut down on the time required to get the orders up; he also admitted that it was a good idea to put a drinking fountain in the Charlotte terminal. Presumably, Searcy thought it was also a good idea to install a fan in the summertime, because at the same time he also bought six fans for use at the Valdese plant. Other matters about which Randall spoke to management were not classified by Respondent as "complaints," presumably because they were solely for the benefit of management. Thus, Terminal Manager Gibson admitted that Randall had mentioned the fact that the safe was being left open at night as a result of which precautions were taken to see that it was no longer left open; he also admitted that Randall had mentioned about the warehouseman taking bread out and giving it away as a result of which an investigation was made and this practice was eliminated. Searcy admitted having had occasional complaints from other employees but claimed that Randall was the worst offender in this respect.4 Yet, although Randall's alleged deficiencies in this respect had admittedly manifested itself since he was first employed and had become worse during the last year, be was never at any time given any warning or inkling that his conduct in this respect might be the cause for his discharge. Searcy admittedly also regarded Randall's request for a wage increase as a "complaint," and testified that the last time Randall complained about not being satisfied with his pay was at the group meeting on September 3. Randall was summarily discharged on Monday, September 12, in the middle of a pay period, without any prior warning or notice. The reason he was given by Searcy was that he did not seem satisfied with his work. On December 2, after the charge in the instant proceeding had been filed, Manager Rostan told a representative of the General Counsel, in the presence of Searcy and Rutherford, that Randall was dis- charged because of a report that he was having an affair with a lady at the Charlotte terminal, a report which had come to Respondent's attention about a month earlier. At the hearing in the instant proceeding, Searcy again testified that Randall was dis- s Interstate Circuit, Inc v. US, 306 U.S. 208, 226; N L.R B. v Homedale Tractor & Equipment Company, 211 F. 2d 309, 315 (C.A. 9) ; Spartanburg Sportswear Company, 116 NLRB 1914, 1926. 4 Employee Wellmon testified that be had complained to Searcy about the "recaps getting messed up" and had made "strong" complaints for about 6 months about not getting along with Harper Harris , as a result of which he was changed to a different route. Smith testified that "to my knowledge we were all complaining at times." 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged because he was not happy with his work and had shown a "dissatisfied atti- tude" for some years, which had gotten worse during the last year. General Man- ager Rostan, the man who admittedly made the decision to discharge Randall and who therefore was in the best position to testify in regard to it, was not called as a witness to explain Respondent's shifting positions. Upon consideration of all the foregoing and the entire record as a whole, I am convinced and find that the Respondent 's asserted reasons for the discharge of Ran- dall were seized upon as pretexts or afterthoughts and were not the true motivating cause for his discharge. 7. Concluding findings Searcy admitted that he was "somewhat " upset about six men coming in at one time to talk to him about a pay raise on Saturday, September 3. On the following Monday, he admittedly reported the fact about the group coming in to seek a raise at a meeting attended by General Manager John Rostan , Jr., Comptroller Ruther- ford, Vice President A. Price Rostan , and Earl Searcy, Sr. During the next few days, Searcy singled out four of the group employees whom he called into his office for individual interviews . Randall and Harper Harris were the two who were not called in this manner. During the individual interviews , Searcy accused the men of "humiliating" and "hurting" his feelings by coming to him in a group and asking for a raise, stated that be did not mind them coming to him one at a time but that he did not like them coining to him and "hit him like that " at one time, accused the men of "hurting" his feelings by "ganging up on him," stated that he thought he had a better bunch of boys than to "gang up on him ," and tried to ascertain who was the "ramrod or leader" of the group who started it. In these interviews Searcy also stated that something had to be done about "ganging up on him" like they did and impliedly warned that the men could be transferred or replaced for such conduct. Searcy may have regarded Harper Harris as the chief spokesman of the group because Harris did most of the talking. However, his remarks and interrogation during the individual interviews, despite Harris' conduct, demonstrate first , that he was trying to find out which employee was the one who was responsible for instigat- ing or promoting the idea of having the employees approach Searcy for a wage in- crease in a group, and second, that he did not regard Harris as having played that role merely from the fact that he did most of the talking. On the other hand, he knew that in the past Randall , by his persistence, had been successful in getting Respondent to effect improvements in operational methods and working conditions, as previously found. He also knew that Randall had already spoken to him about a raise twice during the summer. And when the group approached him on the loading platform on Saturday morning, it was Randall who spoke up first and told Searcy that the boys had gotten together and wanted to talk to him about a wage increase, as previously found . It therefore would not have been unreasonable for Searcy to have concluded that Randall was the one who was responsible for the group action . I find that he did so conclude and that he reported his belief at the management meeting of Friday, September 9, when the decision to discharge Randall was made by General Manager Rostan . Without any prior warning or notice, Ran- dall, who had been in Respondent's employ as a driver longer than almost all the other drivers, was then summarily discharged in the middle of a pay period on the very next workday on the pretext that he seemed to be dissatisfied working there, as previously found. At the discharge interview , Searcy did not deny Randall's im- plied accusation that he was being discharged because of Searcy 's belief that Randall was the one who "got all of this up," referring to the group action in seeking a wage increase. Thereafter, Respondent took shifting positions with respect to the reason for Randall's discharge. And the failure of General Manager Rostan to testify at the hearing, the man who admittedly made the decision to discharge Randall and therefore was in the best position to testify as to the true reason for the discharge, leads me to conclude that his testimony would have been adverse to the Respondent's position. Upon consideration of the foregoing and the entire record as a whole, I am con- vinced and find that Randall who was discharged because of the belief that he was the one who was responsible for getting the employees to approach Searcy for a wage increase at one time in a group. By taking group action to seek a wage in- crease, the employees were engaging in a protected concerted activity for their mu- tual aid and protection, a right guaranteed to them by Section 7 of the Act. The discharge of Randall because of a belief that he instigated or promoted such pro- tected activity interfered with , restrained, and coerced the employees in the exercise of their Section 7 rights and therefore violated Section 8 (a) (1) of the Act. WALDENSIAN BAKERIES, INC . 1145 B. The issue as to whether Respondent engaged in other acts of interference, restraint, and coercion The complaint, as amended at the hearing, alleges that Searcy engaged in unlawful conduct by interrogating employees concerning their concerted activities, reprimand- ing and threatening employees with discharge, and job transfers for engaging in concerted activities for their mutual aid and protection. As previously found, in the individual interviews with employees Leger, Wellmon, and Smith, Searcy accused the men of "humiliating" and "hurting" his feelings by coming to him in a group and asking for a raise, stated that he did not mind them coming to him one at a time but that he did not like them coming to him and "hit him like that" at one time, accused the men of hurting his feelings by "ganging up on him," stated that he thought he had a better bunch of boys than to "gang up on him," and inquired who was the "ramrod or leader" of the group who started it. It is thus clear, and I find, that Searcy was reprimanding the employees for having engaged in this type of concerted activity and was trying to ascertain who was the one who had instigated or promoted it. In this context, Searcy's inquiry of employee Leger as to whether he liked his job or whether he would like to go back to work on his old job, inside, his statement to employee Wellmon that "something should be done about this," and his statement to employee Smith that something was going to have to be done about "ganging up on him" like they did, followed by his rhetorical query that "I guess all of you know that you can be replaced," constituted implied threats of economic reprisals in the form of job transfers or discharges for having acted in concert as a group in seeking to get a wage increase. As Section 7 of the Act guarantees to employees the right to engage in concerted activities for their mutual aid and protection, Searcy's reprimands, attempts to ascer- tain the instigator or leader, and threats of economic reprisals, interfered with, re- strained, and coerced the employees in the exercise of this right. I therefore find that by the above-described conduct of Searcy, Respondent violated Section 8 (a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its operations of Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a),(l) of the Act by discharging Lucius Randall, I will recommend that it be ordered to offer him immediate and full reinstatement to his former or substantially equivalent employment, without preju- dice to his seniority and other rights and privileges, and to make him whole for any loss of earnings he may have suffered by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his dis- charge to the date of said offer of reinstatement, less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. I will also recommend that Respondent make available to the Board, upon request, payroll records to facilitate the determination fo the amount due under this recommended remedy. Upon the basis of the foregoing findings of fact and upon the entire record in the case, iI make the following: CONCLUSIONS OF LAW 1. By discharging Lucius Randall because it believed him to be responsible for the conduct of the employees in acting in concert to seek a wage increase, and by engag- ing in the conduct set forth in section B, supra, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a),(3) of the Act. [Recommendations omitted from publication.] 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, you are notified that: WE WILL NOT discharge any employee because he was responsible or believed to be responsible for employees acting in concert to seek a wage increase or to engage in any other protected concerted activity for their mutual aid or protection. WE WILL NOT reprimand nor threaten employees with job transfers, discharges, or other economic reprisals for having acted in concert to seek a wage increase or for engaging in any other protected concerted activity for their mutual aid or protection. WE WILL NOT interrogate employees to ascertain who was responsible for their conduct in engaging in protected concerted activity for their mutual aid or protection, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a) (1) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to engage or refrain from engaging in protected concerted activities for the purpose of their mutual aid or protection. WE WILL offer to Lucius Randall immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of his discharge. WALDENSIAN BAKERIES, 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. Willard's Shop Rite Markets, Inc. and Retail Grocery and Food Clerks Local No. 876, Retail Clerks International Association, AFL-CIO. Case No. 7-CA-29388. August 02, 1961 SUPPLEMENTAL DECISION AND ORDER On February 23, 1961, Trial Examiner Henry S. Sahm issued his Supplemental Intermediate Report in the above-entitled proceeding,' finding that the Respondent had not engaged in the unfair labor prac- tices alleged in the complaint and recommending that the complaint be dismissed in its entirety as set forth in the copy of the Supplemental Intermediate Report attached hereto. Thereafter, the General Coun- sel filed exceptions to the Supplemental Intermediate Report and a supporting brief, and the Respondent subsequently filed a brief in reply to that of the General Counsel and in support of the Supplemental Intermediate Report. I The Trial Examiner's original Intermediate Report recommending dismissal of the complaint for jurisdictional reasons was issued on April 18, 1960. Thereafter, on August 16, 1960, the Board remanded the case to the Trial Examiner for the preparation and issuance of the instant Supplemental Report. See Widlard's Shop Rite Markets, Inc., 128 NLRB 710. 132 NLRB No. 101.