Miller Road Dairy

MILLER ROAD DAIRY, A CO-PARTNERSHIP . 217 or tenure of employment or any term or condition of employment against any em- ployee because of membership in or activity on behalf of any labor organization. T rrAN METAL MANUFACTURING CO., 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. Frederick O. Glass, Joseph E. Glass, Maurice Glass, and Roswell C. Glass, d/b/a Miller Road Dairy, a Co-partnership and Local 332, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Ind. Case No. 7-CA- 3180. January 12, 1962 DECISION AND ORDER On October 5, 1961, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from and take certain affirmative action as set forth in the Intermedi- ate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, the Respondents filed exceptions to the Inter- mediate 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 case to a three-member panel [Chairman McCulloch and Members Rodgers 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 the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER The Board adopts the Recommended Order of the Trial Examiner with the modification of section 2(g) to read : "Notify said Regional i As no exceptions were filed to the Trial Examiner's ultimate conclusion that the Respondents did not engage in unfair labor practices within the meaning of Section 8(a) (5) of the Act by refusing to bargain collectively with the Union , we adopt that conclusion pro forma and deem it unnecessary to pass upon his subsidiary finding that the requested unit limited to wholesale drivers alone was inappropriate for collective bargaining Nor do we pass upon the Trial Examiner's other subsidiary finding that James Hanna , a bulk-tank driver, was not an independent contractor but an employee in the unit in which the Union sought representation. 135 NLRB No. 36. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith."' IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges a violation of Section 8(a) (5) of the Act. 2 In the notice attached to the Intermediate Report marked "Appendix A," the words "Decision and Order" are hereby substituted for the words "The Recommendations of a Trial Examiner." In the event that this Order is enforced by a decree of a United States Court of Appeals , the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136 ; 73 Stat. 519), was heard in Flint, Michigan, on August 8, 9, and 10, 1961 , pursuant to due notice. The complaint , issued on June 29, 1961 , by the General Counsel of the National Labor Relations Board and based on charges duly filed and served , alleged in substance that Respondents had engaged in unfair labor practices proscribed by Section 8(a)(1), (3 ), and (5) of the Act by ( 1) numerous specified acts of interference , restraint, and coercion in April and May 1961 (i.e., interrogations , threats, inducements to form a company union, promises of benefits ); (2) discriminatorily discharging Delano Fahr on April 27 , refusing to reinstate certain employee strikers upon their unconditional offers to return to work, and imposing conditions upon the reinstatement of others; and (3) refusing, on April 27 and since , to bargain with the Local 332 as the repre- sentative of a majority of the employees in an appropriate unit. Under Respondents' answer denying the unfair labor practices and the evidence as adduced at the hearing , the chief issues in the case were whether the Union repre- sented a majority of the employees in an appropriate unit and whether Fahr's dis- charge and Respondents' handling of the reinstatement of the strikers constituted discrimination within the meaning of Section 8(a)(3). Other issues concerned the commission of the alleged Section 8 (a) (1) conduct. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS ; THE LABOR ORGANIZATION INVOLVED I find on facts alleged in the complaint and admitted by answer that Respondent copartners, who are engaged at their milk processing plant in Flint, Michigan, in the wholesale distribution of milk and related products , are engaged in interstate commerce within the meaning of the Act (by direct purchases and shipments from extrastate points of goods and supplies valued in excess of $50,000 annually), and that the Charging Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Introduction; main events Respondents operate a small, family-owned milk processing plant, which de- veloped from a small dairy run by the father , Roswell C . Glass. He and his sons,. Frederick , Joseph, and Maurice (Pete) compose the partnership known as Miller Road Dairy, of which Frederick Glass has been for several years the managing partner or general manager. Respondents employed some eight plant (inside) employees, two tank-truck drivers, nine wholesale route drivers, and some two or three regular helpers. Organizational activity began suddenly on April 26 among the wholesale route drivers, when six of the nine signed applications for membership in Local 332. The Union made no attempt to extend the organization to plant employees or even to the bulk drivers and helpers, confining its recognition claims to a unit composed solely of wholesale route drivers. Its request for recognition and for bargaining, made to Respondents on the morning of April 27, was rejected and was followed immediately by most of the alleged Section 8 (a)( I) conduct and by the discharge of Delano Fahr. MILLER ROAD DAIRY, A CO-PARTNERSHIP 219 On April 28 Respondents refused the Union's request that Fahr be reinstated, and the six union members (Fahr, Richard Dell, Frederick Hunt, Phillip Rosser, Richard Hartman, and Robert Kilbourne ) immediately struck in protest , forming a picket line which was maintained until May 12 , when letters requesting reinstatement were signed. On May 15 , Respondents reinstated Dell and Hartman as new employees. The other strikers have not been reinstated. Consideration of the case may appropriately begin with the refusal-to-bargain issues, since it was the Union 's demand for recognition which sparked the conduct which forms the subject matter of this proceeding. B. The refusal to bargain 1. The appropriate unit Opposing the General Counsel's claim for a unit limited to the wholesale route drivers, Respondents contend for a unit covering all nonsupervisory employees (except restaurant employees, as to whom the record is silent), including plant employees, the regular helpers to the route drivers, and the tank-truck drivers. Alternatively, Respondents contend that the helpers and the tank-truck drivers must in any event be included in an appropriate unit with the other drivers. I reject Respondents' claim of an overall unit on the basis of Ballentine Packing Co., Inc., 132 NLRB 923, and cases there cited, including The Valley of Virginia Cooperative Milk Producers Association, 127 NLRB 785. In Ballentine, Teamsters sought a unit limited to truckdrivers and their helpers; Meat Cutters sought a pro- duction and maintenance unit, excluding truckdrivers; and the employer sought a single plantwide unit. The Board pointed out that it had traditionally established truckdrivers as a separate appropriate unit in the absence of a bargaining history where a union seeks to represent the truckdrivers separately and where no other labor organization seeks to represent them in a unit of larger scope. As the present case falls squarely within the ambit of that holding, Respondents' evidence that the pattern of bargaining with milk producers in the area was almost exclusively on the basis of an overall unit was wide of the mark. Respondents' alternative contention requires consideration of their operations and of the question whether one of the bulk drivers was an employee or an independ- ent contractor. All plant employees and all drivers and helpers were under the supervision of Joseph Glass. Under him, Jesse Moss supervised the plant employees and Simeon (Dub) Lynn supervised the route drivers and their helpers. The bulk drivers, Clarence Johnson and James Hanna, worked directly under Joseph Glass' super- vision, hauling milk from the farm suppliers . Though each had regular routes, they were sometimes sent elsewhere by Glass, who exercised exactly the same type of supervision and control over Hanna (the alleged independent contractor) as he did over Johnson. All suppliers dealt directly with Respondents; the bulk drivers simply hauled milk from farms as directed by Glass. Johnson also sometimes filled in as a wholesale route driver when a regular driver was absent, and on heavy days he sometimes hauled extra milk from the plant to route drivers whose supply was depleted. Johnson was paid on a salary basis (as were the wholesale drivers), and there was no question under the evidence but that he was an employee.' Though the General Counsel adduced evidence that Johnson was the brother of Mrs. Roswell Glass and an uncle of the three sons, he makes no contention in his brief that Johnson should be excluded on the basis of that relation- ship. As no evidence was offered that Johnson enjoyed any special status which allied him with management, I find that the relationship was not sufficiently close as to require exclusion from the unit. Hanna had worked for Respondents for some 7 years, starting at age 16. He began driving a tank truck in 1956, and some time thereafter acquired, with Re- spondents' assistance, a truck of his own, which bears both his own name and that of Miller Road Dairy . There is no written contract or lease agreement . Hanna is paid by the hundredweight for the milk which he hauls, and he pays his own social security and withholding taxes. Respondents do all of his bookkeeping without charge, and they charge to him all payments which they make for his gasoline, licenses, and other such expenses. The account is balanced monthly, with Hanna receiving a check for any balance to his credit Respondents have paid at their "A union representative testified at the hearing that both tank-truck drivers were excluded from the unit because of a belief that both were independent contractors, but conceded that if they were employees they might appropriately be included in the unit. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD own expense to have the truck repainted and relettered, and for some,2 months before the hearing Hanna used, without charge, Respondents' truck because his own had broken down. There was no evidence that Hanna hauled, or was free to haul, for third persons or that he held himself out as a carrier for hire. It may reasonably be inferred from the nature of his relationship with Respondents that he did none of those things. Hanna's status is to be determined by viewing the total situation as shown by the facts in this case. U.S. v. Silk, 331 U.S. 704, 716. "[The agency] and the courts will find that degrees of control, opportunities for profit or loss, investment in facilities, permanency of relation and skill required . . . are important for deci- sion. No one is controlling nor is the list complete." Id. In cases of this type the problem is one of determining whether the factors which are indicative of an employer-employee relationship on the one side out- weigh those which are indicative of an independent contractor status on the other (Malone Freight Lines, Inc., 107 NLRB 501, 503) with due recognition that some factors possess more significance and weigh more heavily in the outcome. Cf. Eldon Miller, Inc., 107 NLRB 557, 559. Though material, it is not decisive, for example whether Hanna paid, or Respondents withheld, a social security and income taxes. American Broadcasting Co., et al., 117 NLRB 13, 18; Serv-Us Bakers of Oklahoma, 121 NLRB 84, 87, at footnote 3; nor is it decisive that Hanna may have had a sub- stantial investment in his truck. Alumatic Windows, Inc., 131 NLRB 1210. The factors which weigh most heavily here and which are determinative of Hanna's status were the complete control which Respondents exercised over him in the performance of his duties (identical with Johnson, an admitted employee) and the almost complete control which they exerted over his economic situation. Indeed, the evidence showed plainly that Hanna was in no sense an entrepreneur, whose opportunities for profit depended on his own "sound management" (U.S. v. Silk, supra, 331 U.S. 704, at 719) for except to a limited degree, the management of Hanna's affairs was in Respondents' hands. Respondents in fact left no room for Hanna to make decisions which will govern his profit or loss. Servette, Inc., 133 NLRB 132, and cases there cited at foot- note 10. Though Hanna's gross returns depend in part on an agreed price to be paid for hauling milk, control of his route, and therefore of the amount of milk to be hauled, is entirely in Respondents' hands. Furthermore, Hanna's net returns (profits) are directly affected by the extent of Respondents' favors and gratuities (e.g., free bookkeeping services, the repainting and relettering of the truck without charge, and the free use of Respondents' truck for some 2 months). I therefore conclude and find that Hanna and Johnson were both Respondents' employees and that as truckdrivers they must be included in the unit in which the Union sought representation. . Turning now to the helpers, the record contains no refutation of Joseph Glass' testimony that at least two of the route drivers (Alvin Sawatzki and Robert Kil- bourne) had full-time helpers, nor of Phillip Rosser's testimony that he had a regular but part-time helper who worked on Fridays and Saturdays and who was otherwise unemployed. All those helpers were hired and paid by Respondents,2 all worked under Lynn's supervision just as their drivers did, and all of their duties as helpers were confined to assisting their drivers on the route and at the plant. Citing testimony by Richard Dell, the General Counsel concedes that Sawatzki's regular helper should be included in the unit, but he ignores the unrefuted testi- mony concerning Kilbourne's and Rosser's regular helpers, who belong just as appro- priately in the unit with their drivers. It is plain that the regular helpers have a substantial community of interests with the route drivers, and that they have no substantial interests in common with the unrepresented plant employees. Indeed, the Board has traditionally placed such helpers in units with their drivers, and the Union has traditionally sought their inclusion. I conclude and find that on April 27, 1961, Respondents' two full-time helpers and its regular part-time helper were a part of an appropriate unit for bargaining which included the wholesale route drivers and the bulk drivers. I do not find, how- ever, that the Union's failure to include the helpers and the bulk drivers in its pro- posed unit rendered the unit defective, since the variance between the requested unit and the appropriate one was a minor one and not so substantial as would of itself relieve Respondents from a duty to bargain with the Union. 2 Sometimes the route drivers picked up casual help, without authorization from Respondents, and in such cases themselves paid the helpers No claim is made that those casual helpers were Respondents' employees. MILLER ROAD DAIRY, A CO-PARTNERSHIP 221 2. The majority question' = The unit which I have found to be appropriate included a total of 14 employees, -of whom only 6 had signed applications for membership in; the Union. I therefore conclude and find that the Union was not the representative of a majority of the employees in an appropriate unit and that Respondents did not 'therefore refuse to bargain with the Union within the meaning of Section 8(a)(5,) of the Act. C. Interference, restraint, and coercion All of the Respondents' alleged Section 8 (a) (1) conduct occurred after the union representatives demanded recognition on the morning of April 27, and much of it took place as the route drivers checked in from their routes on that day. Richard Hartman, Frederick Hunt, Robert Kilbourne, and Phillip Rosser testified to interrogations by Joseph Glass concerning whether they had joined the Union, or signed union cards, and Hartman and Hunt testified that Glass threatened to close the doors or shut the dairy down before the Union, or Hoffa, would run it. Rosser and Delano Fahr testified to interrogations by Fred Glass, and Rosser testi- fied further that Roswell Glass, who was present during the interrogation by Fred Glass, threatened to tear the dairy down before he would allow the Union to come in. Kilbourne testified to a further threat made by Joseph Glass to the pickets during the strike that Respondents would close their doors before they would recognize the Union. Richard Dell testified that shortly after he was reinstated on May 15, Fred Glass questioned him as to the identity of the employee who had "instigated" the Union, and that he informed Glass that it was Robert Kilbourne. Roswell Glass and Joseph Glass denied making the threats which were attributed to them. However, Joseph Glass admitted questioning the drivers about whether they belonged to the Union and admitted further that he questioned some of the plant employees as well as one of the bulk drivers (Clarence Johnson) concerning what they knew about the Union. Glass explained his interrogations on the ground that the Union had submitted no proof of majority and that he was checking to determine whether it in fact had a majority, but he admitted that he did not inform the employees of his reason. There was other testimony which resolves the foregoing conflicts in the testimony of the employees and the employers involved. Simeon Lynn, the immediate super- visor of the route drivers, testified that following the Union's demand for recogni- tion on April 27, there was a lot of "union talk," with Fred Glass attempting to "pinpoint the instigator" of the Union and accusing everyone (including Delano Fahr) in that connection. Glass also stated that he would refuse to accept the Union as bargaining agent and that he would close the business before he would let anyone tell him how to run it. Warren Krapohl, an attorney and a neighbor of Fred Glass, testified to a back- fence gardening conversation with Fred Glass after the strike began, during which Glass commented, in relation to resolving the union problem, that Respondents had in mind closing down the plant .3 The foregoing testimony by disinterested witnesses plainly tended to corroborate and confirm that of the employee witnesses. Furthermore, the fact of the interroga- tions was substantially admitted or was not denied. I therefore credit the testimony of the employee witnesses set forth above. Phillip Rosser testified that during the course of his interrogation by Fred Glass and Joseph Glass on April 27, Jesse Moss, plant manager, joined in at one time with the suggestion that the employees form their own independent union to settle their disagreements with supervision. Kilbourne, Hartman, and Hunt testified to occasions when the suggestion of an employee club was repeated by Moss and by Fred Glass and Joseph Glass during the first week of the strike. Kilbourne testified that on May 2 or 3, Moss made the suggestion of an- inside club during a telephone call in which he also stated that either Fred Glass or Joe Glass wanted that to happen and that he knew that the Company would shut the doors before it would recognize the Teamsters Union as 3 That conversation plainly did not occur in the course of an attorney-client relation- ship, and Glass maintained as a witness that no such relationship existed at any time. The only other point on which Krapohl's testimony was material was on Respondents' objections to the unit which the Union proposed, and Krapohl's testimony as to that was not only cumulative but was corroborative of Respondents' testimony I therefore adhere to my ruling at the hearing in which I overruled Respondents' objection on the ground of privileged communication. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the bargaining agent for the employees. Hartman testified that Joseph Glass made the suggestion during a telephone call which he made to Glass and that Glass also suggested the possibility of having every ninth day off, stating that if there were an employee club, they could work out their problems among themselves. Hunt tes- tified to a series of telephone calls concerning the subject of an employee club which he received from Moss and from Fred and Joseph Glass. Among other things, Joseph Glass stated that the Teamsters Union would "never run our organization," and Fred Glass promised to assist in setting up the club and promised benefits in the form of days off and a percentage of sales. Moss denied that he himself made any suggestion that the employees form their own club or union and denied making any promises or offers to employees in that regard. He testified that the first suggestion of an inside club which he heard was made around May 4 or 5 by an inspector of the Independent Dairy Association, who had come to the plant.4 Moss admitted that the subject came up frequently after that (among the nonstrikers), and that on one occasion he informed striker Richard Dell that the plant men were going to form a club and suggested that the strikers come into it. Moss specifically denied discussing an employee club with Hunt, but did not refer to Kilbourne's testimony. Fred Glass denied that he ever proposed to any of his employees that they form a club and denied having any discussion with employees on the subject, except that Richard Dell called him one night to suggest that Glass form an employee club to offset the Teamsters. Glass denied making any offers or promises or threats either during or since the strike either in connection with such a club or otherwise. Joseph Glass denied making any promises of a shorter workweek or of more pay or benefits, but his testimony contained no reference to the forming of an employee club and no denial of the testimony of Hartman and Hunt that he made such a suggestion to them. As is seen, four employee witnesses testified to a series of suggestions from three different representatives of management concerning the setting up of an employee club. Moss admitted making the suggestion to one of the strikers and Fred Glass admitted that the subject came up, though at the instigation of the employee. Joseph Glass made no denial of the opposing testimony that he suggested the formation of such a club. The partial admissions and the failure to deny by Respondents' witnesses thus tendered to confirm the cumulative testimony of the General Counsel's witnesses, which, by reason of the number and similarity of the incidents testified to (showing Respondents' representatives to be engaged in parallel courses of con- duct) may be regarded as mutually corroborative. The fact that nonstriking em- ployees attributed no such suggestions to Respondents and were themselves also active in attempting to form an inside organization does not avail Respondents in view of the weight of the evidence that they were also actively involved. Under all the circumstances I credit the testimony of the General Counsel's witnesses as to the statements and promises made by Moss and by Fred and Joseph Glass in attempting to induce the employees to form an employee club. The General Counsel also offered testimony concerning threats of violence made by Moss to certain strikers, which were repeated by Joseph Glass at the picket line. The evidence in its entirety showed, however, that Moss' statements were not made in relation to the picketing or to any other protected activities, but to reports which he had received concerning alleged threats and threatening conduct by strikers or union representatives which were directed at members of Moss' family and at members of a church congregation which Moss served as pastor. Concluding Findings I conclude and find from the foregoing evidence that Respondents interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act by their following conduct: Interrogation of employees concerning their union membership, the signing of union cards,s the instigator of the organizational activity, and concerning their other union activity. Threatening to close or shutdown the business before they would recognize the Union. A There was testimony to similar effect by employee Richard Johnson, who testified that he took the lead during the strike in attempting to form such a club and discussed it with some of the strikers. 6 Joseph Glass' explanation that he was checking only on the question of the Union's unsupported claim of majority was emphatically refuted by the full picture of Respondents' unlawful conduct as herein found. MILLER ROAD DAIRY, A CO-PARTNERSHIP 223 Attempting to induce employees, with their assistance, to form an inside union, and offering and promising benefits for that purpose. D. Discrimination 1. Fehr's discharge The General Counsel's evidence may be briefly summarized as follows: Delano Fahr was employed for around 9 weeks 'as a route driver before his dis- charge on April 27 . He was one of the six drivers who attended meetings with the Teamsters and who signed an application card. Fahr worked under the immediate supervision of Lynn, who testified that he found Fahr's work to be satisfactory. Both Fahr and Lynn testified that around April 24 or 25, Fred Glass informed Fahr that because business was down on all the routes, Fahr's route was to be discontinued, but Glass offered to use Fahr in the cooler part time and as a part-time route driver, explaining that Respondents had gone to some expense to break Fahr in and preferred to retain him instead of laying him off or letting him go. Nothing was said in criticism of Fahr's work at the time. Fahr accepted the offer, though there was no definite agreement as to when the change would be made. As previously found (section C, supra), the Union's demand for recognition on the morning of April 27 was followed immediately by Fred Glass' attempts to ascer- tain who was responsible for the union activity, his reference to Fahr's membership in Teamsters during a previous employment, and his comment that he had had no union troubles until Fahr came there. When Fahr returned from his route on the 27th, Glass discharged him in the presence of Lynn and an office employee, stating that it was because Fahr was losing business and was not taking care of his route properly (i.e., that he was leaving too much bad, scrap, or outdated milk). Glass also questioned Fahr about whether he had signed one of the union cards. The union representatives heard of Fahr's discharge on the evening of April 27 and arranged a meeting of the employees for the next morning near the dairy. After discussing the subject of the discharge, the employees agreed that they would strike in protest, but first the union representatives (Ted LaBrecque and John Adair) were to attempt to have Respondents reinstate Fahr voluntarily. Adair and LaBrecque went to the dairy and inquired of Fred Glass the basis of Fahr's discharge. Glass stated that it was for excessive stale products on his route, and after some discussion Adair suggested that Fahr be brought in to hear his side of the matter. At that point Moss came in, intervened in the discussion, stated that Respondents would not negotiate to reinstate Fahr, and ordered the union repre- sentatives to get out. The picket line was set up immediately afterward, with the six union members par- ticipating. The strike continued until May 12, after which all the strikers applied for reinstatement. The foregoing summary of the General Counsel's evidence (including the sum- mary in section C, supra) is sufficient without discussion or analysis to establish, prima facie, that Respondent discharged Fahr because of his union membership and activities and to discourage the organization of the employees by Teamsters. We turn now to Respondent's evidence to determine whether it was sufficient to overcome that prima facie case and to establish Respondents' defenses that Fahr was in fact discharged for the reasons which Fred Glass assigned at the time of the discharge. Respondents' case was based largely on Glass' testimony that Fahr's performance had been unsatisfactory for several weeks, that Fahr had a deplorable record for leaving sour and scrap products and for failing to pick up outdated products, that those derelictions had caused the loss of a valued customer (Brisbin's market) around March 21, and was otherwise causing a diminution of business on Fehr's route. Glass also testified that shortly after the loss of the Brisbin account, he directed Lynn to discharge Fahr, and that although he was surprised to find after returning from a vacation that Fahr was still working, he agreed to give Fahr another chance. Finally, Glass testified that on April 26 he made a further survey of Fahr's route and found that Fahr had failed to pick up substantial quantities of outdated and spoiled products. Testifying at first that he talked with Fahr when he came in off his route, Glass testi- fied later that he was unable for some reason to see either Fahr or Lynn that afternoon, but that he directed the Company's auditor to prepare Fahr's final check and that he also informed another office employee, as well as his father and his brothers, that he was discharging Fahr. None of those persons was called to corroborate the latter testimony. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . Glass continued that though he got up early the next morning he missed Fahr, but followed him out on the route (before the arrival of the union representatives) and gave him instructions about picking up the old products . However, Glass did not tell Fahr he was discharged, but told him to go ahead and finish his route. Richard Johnson testified that on Thursday, the day before the strike (i.e., the 27th), he heard Glass "chew out" Fahr when he checked in, but that, of course, was just before the actual discharge. Leonard Raynak, who had broken Fahr in on his his route, testified in general to Fahr's shortcomings as a route man, but his testi- mony obviously related to a period early in Fahr's employment. Moss also testified concerning complaints from customers on Fahr's route concerning sour products. Gerald Brabb testified that during the course of the last sales meeting before the strike (which he was able to fix only as on a Monday), Fred Glass spoke critically of finding stale and bad merchandise on Fahr 's route, but Brabb could remember no statement made by Glass during or shortly before that meeting that he had instructed Lynn to discharge Fahr. In the face of repeated questioning on the same point, Brabb's testimony was that the only reference to discharge was made in a conver- sation with Lynn when Lynn informed him that Fred Glass had in mind dissolving Fahr's route and letting him go and when Lynn discussed with Brabb the possibility of giving up part of his own route to build up Fahr's sufficiently to retain him. The entire context of Brabb's testimony showed that that conversation occurred in con- nection with the working out of the ultimate arrangement under which Fahr was to be given other work, discussion of which Brabb also heard and apparently participated in. There was also testimony by both Brabb and Richard Johnson concerning state- ments which Fahr made separately to them concerning Glass' offer of the combination inside-outside job, in which Fahr expressed distaste for such a job and indicated the possibility that he would not accept it. That testimony was plainly irrelevant to the issue of the discharge (except as corroboration of the General Counsel 's evidence that the offer was in fact made ), particularly in view of undenied evidence that Fahr accepted Glass' offer when it was made. Any findings made on Respondents' evidence must turn largely on the credibility of Fred Glass. On that score, Glass' demeanor and manner of testifying, including his quick and repeated shifts in testimony (shown by the record) as to times , dates, and other details, when made aware of inconsistencies and conflicts , tended to his dis- credit. Furthermore, much that he testified to in denigration of Fahrs' performance was set at naught not only by Lynn's testimony that Fahr's work was satisfactory, but by his offer of other work to Fahr on April 24 or 25 and by the reasons which he then gave for retaining Fahr. But ignoring that evidence (which was corroborated by Respondents' witnesses ) Glass came forward with the claim that he went out again on Fahr's route both on the 26th and 27th and that he actually announced to six persons on the afternoon of the 26th that he was discharging Fahr. Not only was no corroboration offered of the latter testimony, but it was plainly inconsistent with Glass' other testimony that though he went to the trouble of running Fahr down on the morning of the 27th , he did not tell Fahr that he was discharged. Glass' vulnerability as a witness was further exposed by impeachment through dis- interested witnesses on a matter which Glass emphasized as demonstrative of Fahr's incompetence, i.e., the loss of the Brisbin Market business . Lynn 6 testified that he checked with Mr. Brisbin at the time concerning the reason the market was chancing dairies and that Brisbin informed him that he quit Respondents because of unfulfilled promises which Fred Glass had made , and that it was not due to Fahr, who had left no more bad products than Maurice Glass before him. Mrs. Brisbin, called by the General Counsel as a rebuttal witness, testified that the decision to change dairies was made because of dissatisfaction with Respondents' service before Fahr was put on the route, that their complaints related to an earlier period when Maurice Glass was on the route, and that Fred Glass also failed to "make right" his promise concerning the lowering of her prices to meet a price-cutting competitor. For the foregoing reasons I do not credit Glass' testimony where it is in conflict with the testimony of the General Counsel's witnesses, and I find that Respondents' evidence was not sufficient to overcome the General Counsel 's prima facie case as summarized above. Considering the evidence in its entirety, it is plain that Respondents had considered Fahr to be an unsatisfactory route driver and that sometime in March Fred Glass 6 Though Glass testified that he discharged Lynn because of failure to cross the picket line, Respondents ' counsel claims no bias or animus on Lynn's part, and there was no indication of any in his testimony , which I credit fully. MILLER ROAD DAIRY, A CO-PARTNERSHIP 225• had ordered Lynn to discharge him. But Fahr was successful in surviving the new , chance which Glass gave him , and finally, when business dropped on all the routes- to the point where a dissolution of Fahr's route was being considered , Respondents. worked out an arrangement under which Fahr was to be retained because of their investment in him as a trained employee. If Respondents seriously considered Fahr to be an unsatisfactory employee, they signally failed to take advantage of the readymade opportunity to eliminate him. Yet, a short 2 or 3 days later, when confronted with the Union's demand for recognition, Respondents effected the discharge suddenly and without warning and during a course of conduct in which, Fred Glass expressed belief that it was Fahr who was at the root of his "union troubles." I therefore conclude and find, on the record as a whole, that by discharging Fahr on April 27 , and by thereafter failing and refusing to reinstate him, Respondents. engaged in discrimination to discourage membership in Local 332 of Teamsters. I also conclude and find that by striking in protest of Fahr's discharge, the employees. engaged in an unfair labor practice strike. 2. The failure to reinstate the strikers On May 15, Respondents received from Richard Dell, Frederick L. Hunt , Phillip, E. Rosser, and Richard Hartman letters which "unequivocally" demanded reinstate- ment, and on May 21, they received a similar letter from Robert Kilbourne. As unfair labor practice strikers they were, of course, entitled to be fully reinstated, upon application. Hunt, Rosser, and Kilbourne have not been reinstated. Dell and Hartman were reinstated on May 15, but were informed by Fred Glass that they were new employees. Testimony by Joseph Glass and Frederick Glass that rein- statement was offered to Hunt ( on the night of July 6, as fixed by Fred Glass) and was refused, was not denied by Hunt. I conclude and find that by failing to reinstate Hunt and Rosser on May 15 and Kilbourne on May 21, and by failing to reinstate Dell and Hartman fully and un- conditionally, Respondents engaged in discrimination within the meaning of Section 8(a)(3). Fahr, who was discriminatorily discharged before the strike, was entitled' to reinstatement, of course, at all times after his discharge . I find further that Hunt was offered and that he refused reinstatement on July 6. III. THE REMEDY Having found that Respondents engaged in certain unfair labor practices , I shall! recommend that they cease and desist therefrom and that they take certain affirma- tive action of the type conventionally ordered in such cases as provided in the Rec- ommended Order below, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease and desist order. Since Respondents' dissolution of Fahr's route , decided upon before his discharge„ Was subsequently effected , I shall recommend that Fahr be offered reinstatement to the combination inside-outside job (or • its substantial equivalent ) which was offered to and accepted by him before his discharge. Since the evidence otherwise showed that Respondents may be operating with fewer route drivers than it employed at the time of the strike and since there may therefore be insufficient work for all the striking employees whose reinstatement is recommended herein, even after dis- missal of all new employees hired on and after April 28, I shall recommend that Respondents establish a preferential list of the usual type (see, e.g., Jerry J. Buckley, d/bla Buckley Development Company, et al., 126 NLRB 1171 ) for all employees for whom employment is not immediately available. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By interfering with, restraining , and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act, Respondents engaged in unfair labor practices proscribed by Section 8(a) (1). 2. By discharging Delano Fahr on April 27, 1961, and by thereafter failing to re- instate him, Respondents engaged in discrimination to discourage membership in the Union and thereby engaged in unfair labor practices proscribed by Section 8(a)(3 and (1 ) of the Act. 634449-62-vol. 135-16 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By failing and refusing to reinstate Frederick L. Hunt and Phillip E . Rosser on May 15 and Robert Kilbourne on May 21, and by reinstating Richard Dell and Richard Hartman on May 15 as new employees , Respondents engaged in discrimina- tion to discourage membership in the Union , thereby engaging in unfair labor prac- tices proscribed by Section 8(a) (3) and ( 1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondents have not engaged in unfair labor practices within the meaning of Section 8(a) (5) of the Act by refusing to bargain collectively with the Union. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Frederick O. Glass, Joseph E. Glass, Maurice Glass, and Roswell C. Glass, co-partners doing business as Miller Road Dairy, their agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 332, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Ind., or in any other labor organization of their employees, by discharging or failing or refusing unconditionally to reinstate employees , or in any other manner discriminating in regard to their hire or tenure of employment , or any term or condition of employment. (b) Coercively interrogating employees concerning their union membership, the signing of union cards, the identity of the instigator of the organizational activities, or concerning other union activities. (c) Threatening to close or shut down the business because of union activities. (d) Inducing or attempting to induce -their employees to form, with Respondents' assistance, an inside union, and offering and promising benefits to their employees for that purpose. (e) In any other manner interfering with, restraining, or coercing their employees in the exercise of their rights to self-organization, to form, join or assist Local 332, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agree- ment 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: (a) Offer to Delano Fahr immediate and full reinstatement to the position which was offered him on or about April 24, 1961, or to a substantially equivalent position, without prejudice to 'his seniority or other rights and privileges, and make him whole for any loss of pay which he may have suffered by payment to him of a sum of money equal to that which he normally would have earned from the date of the discrimina- tion against him to the date of the offer of reinstatement or his placement on prefer- ential hiring list as provided below, less his net earnings during said period (Crossett Lumber Company, 8 NLRB 440), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. (b) Offer to Richard Dell, Phillip E. Rosser, Richard Hartman, and Robert Kil- bourne immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole, in the manner provided in the -foregoing paragraph, for any loss of pay which he may have suffered as a result of the discrimination against them. (c) Make whole Frederick Hunt in the manner provided in the foregoing para- graphs for any loss of pay which he may have suffered as a result of the discrimina- tion against him, from May 15 to and including July 6, 1961. (d) In effecting the reinstatements herein ordered, Respondents shall dismiss, if necessary, all new employees hired on and after April 28. If there is not then suffi- cient work available for the remaining employees and those to be offered reinstate- ment, all available positions shall be distributed among them, without discrimination against any employee, in accordance with the system of seniority or other non- discriminatory practice heretofore applied by Respondents in the conduct of their business. Respondents shall place those employees, if any, for whom no employ- ment is available after such distribution on a preferential list, with priority in ac- cordance with such system of seniority or other nondiscriminatory practice here- MILLER ROAD DAIRY, A CO-PARTNERSHIP 227 tofore applied by Respondents in the conduct of their business , and thereafter offer them reinstatement as such employment becomes available and before other persons are hired for such work. (e) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all records necessary to analyze the amounts of backpay due and the rights of Delano Fahr , Richard Dell, Phillip E. Rosser, Richard Hartman, Robert Kilbourne, and Richard Hunt under the terms of this order. (f) Post in their offices and plant at Flint, Michigan , copies of the notice at- tached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for -the Seventh Region, shall, after being signed by Respondents' representative, be posted by Respondents immediately upon receipt thereof and main- tained by them for 60 consecutive days thereafter , 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 covered by any other material. (g) Notify the Regional Director for the Seventh Region , in writing, within 20 days from the date of receipt of this Intermediate Report , what steps Respondents have taken to comply herewith. The complaint is hereby dismissed insofar as it alleges a violation of Section 8(a)(5) of the Act. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in Local 332, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , Ind., or any other labor organization of our employees, by discharging them, failing and refusing unconditionally to reinstate them, or in any other manner discriminat- ing in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT coercively interrogate employees concerning their union mem- bership, the signing of union cards , the identity of the instigator of the organi- zational activities , or concerning other union activities. WE WILL NOT .threaten to to close or shut down our business because of union activities. WE WILL NOT induce or attempt to induce employees to form, with our assistance, an inside union, nor will we offer or promise benefits to our employ- ees for that purpose. WE WILL NOT in any other manner interfere with , restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form, join, or assist said Local 332, or any other labor organization , to bargain collectively through representatives of their own choosing , or 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 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. WE WILL offer to Delano Fahr immediate and full reinstatement to the posi- tion which he offered him on or about April 24, 1961 , or to a substantially equivalent position, without prejudice to his seniority or other rights and priv- ileges, and make him whole for any loss of pay he may have suffered as a result of our discrimination against him. WE WILL offer to Richard Dell, Phillip E. Rosser, Richard Hartman, and Robert Kilbourne immediate and full reinstatement to their former or substan- tially equivalent positions , without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay he may have suffered as a result of our discrimination against him. WE WILL make whole Frederick Hunt for any loss of pay which he may have suffered as a result of our discrimination against him from May 15 , 1961, to and including July 6, 1961. 228 DECISIONS, OF NATIONAL. LABOR RELATIONS BOARD All our employees are free to become or to refrain from becoming members of the above Union, or any other labor organization, except as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure- Act of 1959. FREDERICK 0. GLASS, JOSEPH E. GLASS, MAURICE GLASS AND ROSWELL C. GLASS , D/B/A MILLER ROAD DAIRY, A CO-PARTNERSHIP 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. Charlotte Union Bus Station, Inc., Harold E. Aldridge, Indi- vidual, and General Services, Inc. and Amalgamated Associa- tion of Street, Electric Railway and Motor Coach Employes of America, Local Division 1437, AFL-CIO. Case No. 11-CA- 1782. January 12, 1962 DECISION AND ORDER On October 25, 1961, Trial Examiner John H. Dorsey issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents 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 Intermediate Report attached hereto. Thereafter, the General Counsel and the Charging Party filed excep- tions to the Intermediate Report and supporting briefs.' 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]. 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 briefs, and the entire record, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications. The complaint alleged, inter alia, that Respondent Charlotte Union Bus Station, Inc., herein called Respondent Station, Respondent Gen- eral Services, Inc., herein called Respondent Services, and Respondent Harold E. Aldridge, herein called Respondent Aldridge, jointly and severally violated Section 8 (a) (1) of the Act by interrogating em- ployees concerning their union activities. As the record contained no evidence that Respondent Services or Respondent Aldridge en- 1 The Charging Party's request for oral argument is denied as, in our opinion, the- entire record in this case adequately presents the issues and positions of the parties. 135 NLRB No. 23.