Greenwood Farms, Inc.

GREENWOOD FARMS, INC. 649 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post immediately at its plant at Birmingham, Alabama, copies of the attached notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (b) Notify the Regional Director for the Tenth Region, in writing, within 20 days from the date of this Recommended Order, what steps the Respondent has taken to comply herewith.? 'If this Recommended Order is adopted by the Board , the notice shall be amended by substituting the words "A Decision and Order" for the words "A Recommended Order of a Trial Examiner." If the Board's Order is enforced by a decree of a United States Court of Appeals, this notice shall be further amended by substituting 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 " 7If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT threaten employees with the closing of the plant or other forms of reprisals because of their union activities, or in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right of self-organization, to form labor organizations, to join or assist International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Help- ers, AFL-CIO, Local 583, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. All our employees are free to become or remain or to refrain from becoming or remaining members of International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local 583, or any other labor organization. BIRMINGHAM FABRICATING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta 23, Georgia, Telephone No. Trinity 6-3311, Extension 5357, if they have any question concerning this notice or compliance with its provisions. Greenwood Farms, Inc. and Harry Miller. Ca.se No. 2-CA-8502. January 17, 1963 DECISION AND ORDER On October 18, 1962, Trial Examiner Rosanna A. Blake issued her Intermediate Report in the above-entitled proceeding, finding that the 140 NLRB No. 66. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Interme- diate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. 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 Trial Examiner's findings, conclusions, and recommendations.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following modifications : 2 (1) The following paragraph shall be substituted for paragraph 1(c) of the Recommended Order: I (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized by Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. (2) The following paragraph shall be inserted between the second and third paragraphs in the notice : WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- ' Mindful of contract provisions dealing with grievance and arbitration and also of the fact that President Marrow and Manager Elmes met with Miller and two union rep- resentatives on December 16 to discuss Miller's discharge , we believe the policies of the Act are effectuated by entertaining jurisdiction under circumstances present here How- ever, we do not adopt the Trial Examiner's discussion of the matter to the extent in- consistent with our views in this field as expressed in International Harvester Company ( Indianapolis Works ), 138 NLRB 1923. And see, also, Smith v. Evening News, 371 U S. 195. Nor do we find it necessary to adopt the Trial Examiner's comments in footnote 28 regarding the Union 's conduct with respect to Miller's discharge. 2 Member Leedom dissents from the inclusion of interest in the backpay obligation for the reasons stated in the dissent in Isis Plumbing & Heating Co , 138 NLRB 716. 8In view of the nature of the unfair labor practices committed , the commission by the Respondent of similar and other unfair labor practices may be anticipated We shall therefore adopt a broad remedial order. Herman Brothers Pet Supply , Inc, et al, 138 NLRB 1087 ; Applied Research, Inc., 138 NLRB 870 GREENWOOD FARMS, INC. 651 organization, to join or assist any labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (3) The following note shall be added to the bottom of the notice, immediately below the signature : NoTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Se- lective Service Act after discharge from the Armed Forces. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed by Harry Miller, an individual , on March 7, 1962, the General Counsel, on April 9, 1962, issued a complaint alleging that Greenwood Farms, Inc., had engaged in conduct which violated Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act In its answer, Greenwood admitted certain allega- tions of the complaint, such as the commerce allegations , but denied the commission of any unfair labor practices . Thereafter, pursuant to due notice, a hearing was held before Trial Examiner Rosanna A . Blake at New York, New York, on May 23. 24, and 31 and June 1 and 6, 1962 . All parties appeared and were represented by counsel at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to present oral argument . Only counsel for the Respondent filed a brief Having considered the entire record in the case, the oral argument by counsel for the General Counsel , the brief filed by counsel for Greenwood, and from my observa- tion of the witnesses while testifying, I make the following- FINDINGS OF FACT I THE BUSINESS OF GREENWOOD AND THE LABOR ORGANIZATION INVOLVED Greenwood, a New York corporation with its principal office and place of business in New York City, is engaged in the retail sale and distribution of milk and related products. During the past year, which is representative of its annual operations. Greenwood's gross revenue exceeded $500,000 and its out-of-State purchases exceeded $17,000. Greenwood is also a member of the Greater New York and Northern New Jersey Milk Dealers Labor Committee which negotiates collective-bargaining agreements for its employer-members with various labor organizations including Local 584, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America During the past year, which is a representative period, the emplover- members of the Committee derived gross incomes from the retail sale and distribu- tion of their products valued, in the aggregate, at more than $500,000; sold products valued in the aggregate at more than $1.000.000 of which products valued, in the aggregate, at more than $50,000 were sold and shipped across State lines; made pur- chases of milk and other products valued, in the aggregate, at more than $1,000,000 of which products valued, in the aggregate, at more than $50,000 were shipped across State lines. Upon the foregoing facts I find, as Respondent admits, that it is engaged in inter- state commerce within the meaning of Section 2(6) and (7) of the Act. Local 584, which has represented Greenwood's drivers for a number of years, is a labor organization within the meaning of Section 2(5) of the Act. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Greenwood serves household customers almost exclusively and its drivers are represented by Teamster Local 584. Prior to his discharge on December 13, 1961, Harry Miller had been a driver for Greenwood for nearly 9 years and had been the shop steward since about March 1960. On October 24, 1961, a citywide (New York) strike began against Greenwood and other companies whose drivers are represented by Local 584 and other Teamster locals. The strike, which was called in connection with contract negotiations, ended on November 8, 1961.1 Before the strike, Greenwood operated 35 routes, 24 of them in Westchester and 11 in the "city." The employees of most, if not all, of the other companies operating in Westchester were represented by Teamster Local 338 and were not on strike. This meant that Greenwood was probably the only company serving Westchester which was affected by the city strike. As a result, Greenwood President Harry Marrow feared that the Company's Westchester customers would be lost permanently to competitors unless deliveries in that area were resumed promptly. Marrow therefore sought repeatedly to persuade the Westchester drivers to return to work. His efforts were consistently opposed by Shop Steward Miller who urged the men to remain on strike until the Union gave them permission to go back to work or the strike was settled. According to the General Counsel, Miller's opposition to Marrow's efforts caused Greenwood to delay the reinstatement of Miller after the strike was settled and then to discharge him approximately a month later. B. Marrow's efforts to persuade the Westchester drivers to abandon the strike and Miller's opposition thereto 2 Shortly after the strike began, Marrow talked to the drivers and told them they were foolish to strike and that if it was up to him he would settle the strike imme- diately. Marrow also promised that "whatever the union got for the others," they would get retroactively. When Marrow finished speaking, Shop Steward Miller spoke. He reminded the men that they had voted a few hours earlier to strike and pointed out that if Marrow's "intentions were sincere, all he has to do is go down to the union and sign a contract and the men would go back to work." A few hours later, Marrow told Miller that he [Marrow] had "just got an order from the Union" permitting the Westchester drivers to deliver milk. Miller said he would call the Union and if Marrow's statement were true, he would tell the men to return to work. However, the Union told Miller that Marrow's statement was not true. Thereafter, in Marrow's presence, Miller informed the men that the Union had not given permission for them to work and if they did so "on their own," they would "assume the responsibility " The Westchester drivers decided not to go back to work "under those conditions." 3 Miller was on the picket line every day during the strike and on numerous occasions Marrow accused him of being responsible for the continued strike by the Westchester drivers. Marrow made such comments as, "What's the matter with you, Harry? Why don't you send the men back to work? If it weren't for you, these men would go back. Why don't you send them back? You will be forcing me to sell my business." Miller always answered that he was only the shop steward and that he did not have the power to do anything until the Union notified him that the strike was over or that the Westchester men could go back to work. Marrow, however, kept insisting that Miller had the authority to send the men back. On October 28, all of the Westchester drivers except Miller and David O'Connor took out their trucks after Marrow promised them that he would "miake up the difference" if the pension plan nand medical plan under Local 584's new contract were 1 Unless indicated otherwise, all dates refer to 1961 The findings of fact in this and subsequent sections are based primarily upon the testimony of Harry Miller which I credit. I was Impressed with Miller's demeanor while testifying and am convinced that he was a truthful witness . Moreover, much of his testimony, even on critical matters, Is undisputed and in no instance did Respondent adduce objective evidence which cast doubt upon Miller's veracity generally or his ability to recall events accurately. 3At least after the first day of the strike, Marrow's back-to-work appeals were directed at the Westchester drivers only. GREENWOOD FARMS, INC. 653 better than the corresponding provisions of Local 338's ( the Westchester Local) contract. The next afternoon , Miller spoke to the Westchester men who had returned to work. At least some of them had stated to Miller that they felt they had made a mistake by working and Miller told them that he agreed that they had made a mistake Miller also reminded the men that they were members of Local 584 , that Local 584 had voted to strike, and they were "duty-bound" to uphold the strike. As a result of Miller's talk , the Westchester men again stopped delivering milk. Marrow, who was present, charged Miller with preventing the men from returning to work and Miller replied that he was not responsible . Miller also stated that the men would work if a union official came down and told them to do so. On one occasion during this period, the exchange between Miller and Marl ow began to get "heated" and Miller turned and started to walk away . He had gone only a few feet when Marrow remarked to a group of men , "That little bastard, when the strike is over , I am going to get him." 4 One Sunday during the strike , Miller received a call from Marrow who said that John O'Rourke, president of Joint Council 16 of the Teamsters , wanted to talk to Miller Miller asked to speak to a union official who confirmed Marrow's statement. Miller then went to the Hotel Delmonico and talked to O'Rourke and Local 584's president, John Kelly, and its secretary -treasurer, Carlos Ferrara. O'Rourke asked Miller what the trouble was at Greenwood and "what about" the Westchester routes . Miller explained that Marrow believed that he [Miller] was responsible for the Westchester drivers not working. O'Rourke then asked if Miller had not been told by a union official to instruct the men to resume deliveries. Miller replied in the negative adding that if President Kelly or Secretary -treasurer Ferrara were to tell him to send the Westchester men out, he would tell the men immediately . Neither Kelly nor Ferrara gave Miller any such instructions and O'Rourke observed , "Well, if they . didn't give you permission . then I have been misinformed . . I thought they gave you permission and you were the one that was holding out." On October 31, each of the Westchester drivers received a telegram stating that Greenwood's Westchester business had been sold to White Clover , another company in which Marrow has an interest . and instructing them to report to Teamster Local 338 When the men asked Miller what they should do, he told them that the telegrams might be a "trick" and that they should get verification from the Union Later that day, the Union sent the drivers telegrams confirming the statements made in the earlier telegrams and all of the Westchester drivers except Miller and O'Connor transferred immediately to White Clover and Local 338 . The "city" drivers re- mained on strike for another 8 days. C Greenwood's delay in reinstating Miller and his discharge on December 13 The strike was settled on November 8 and all of the drivers who had continued to strike except Miller and O 'Connor were notified to and did return to work on November 9 When Miller asked Greenwood Manager Edward Elmes why he and O'Connor were not recalled , Elmes replied that the two men were not working for the Company any more Miller asked "why" and Elmes answered, "That's all I can tell you . Mr Marrow told me you two guys are not to he called back to work " 5 Miller and O'Connor reported their discharge to Union Official Ferrara who called Elmes Miller and O'Connor returned to work the following day, November 10 On the morning of December 12, driver Coughon told Miller that he (Coughon) was due to go on vacation but would like to work instead . Miller explained that he was without authority to give Coughon permission to work, that permission would have to be obtained from the Union, and if it were given Miller would have no ob- jection to Coughon's working. A few hours later, Manager Elmes called Miller to the office and asked why he was giving Elmes "a hard time" and why he would not let Coughon work during his 4I do not credit either Marrow's denial that he made such a statement or his testimony generally. My inability to do so is based upon my observation of his demeanor while testifying, on the material contradictions in his own testimony, and on the fact that, as ahown infra, critical portions of his testimony are refuted by the testimony of Respond- ent's other main witnesses, Edward Elmes. and by company records I do not find it necessary to pass upon the credibility of Vincent Galavitz who testified that Marrow referred to Miller as a "sheeny bastard." 5 Elmes did not deny having made the above statements to Miller. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vacation. Miller explained to Elmes, as he had to Coughon, that the latter would have to get permission from the Union. Miller suggested that Elmes call the Union and stated that he had no objection to Coughon's working if the Union gave its per- mission. After telling Miller to wait, Elmes went into President Marrow's office. He returned in a few minutes and directed Miller to bring his route book to the office. Miller complied.6 The next day (Wednesday, December 13) was Miller's "day off." About 10 a m., Elmes called Miller at home, told him that there was "some discrepancy" in his route book and to come down and straighten it out. Miller asked if it could not wait until the next day but Elmes answered, "If you don't come back [today] and straighten . . . out [the book], you are through. Don't report to work anymore." Miller went to Elmes' office accompanied by Robert Azzari, the shop steward at Knoll Creek Dairy, another Marrow company which has its offices in the same budding as Greenwood 7 When Miller asked Elmes what was "up," Elmes replied that Miller was "through." Miller wanted to know what had happened "all of a sudden" and the reason for his discharge. Elmes replied, "Inefficiency," adding that Miller had not turned in stops and aways and had been cheating customers on discounts.8 Miller told Elmes that he had turned in four sheets of stops and aways to Company Clerk Ted Amorosa who said that he was too busy to make the required entries in Miller's route book. Miller also showed Elmes' entries in his route book which showed that he was not "cheating" customers on discounts .9 It is undisputed that after Miller had completed his explanations, Knoll Creek Steward Azzari said to Elmes, "Look, Eddie, everything is black and white. There is no cheating, no noth- ing. He is showing you . . . . What are you firing him for?" Elmes answered, "Inefficiency." Azzari expressed disbelief that a man would be fired for inefficiency after 9 years. On December 16, Miller and Union Representatives Sopinko and Barone met with Marrow and Elmes. In response to a question, Marrow said that Miller had been discharged for a $59 shortage and that he "didn't have to go any farther." Miller wanted to know "what shortage?" and why the shortage had not been men- tioned during his meeting with Elmes on December 13. Elmes explained that there had been no "chance" at that time to check Miller's book. Miller said he doubted that his book was short. Marrow also repeated the charge that Miller had not turned in his stops and aways and Miller again asserted that he had turned them in to Amorosa. Miller's testimony that Amorosa was called in and verified Miller's statement is uncontra- dicted. Finally, Miller explained his system of entering "discounts" in his book but Marrow commented, "I don't care. He is fired." D. The various reasons asserted by Respondent for discharging Miller As found above, Manager Elmes told Miller that he was being discharged because of inefficiency, failure to turn in stops and aways, and cheating customers on dis- counts. A few days later, Marrow stated that the reason was a $59 shortage, adding that he "didn't have to go any farther." When an employee leaves the Company, the blanks on a printed form headed "Confidential Termination Report" are filled in. Pertinent portions of Miller's re- port are set forth below: Do You Recommend Re-Employment9 No. If Not, Give Reason- 6 Elmes did not deny Miller's testimony concerning this interview 7 Miller testified that he wanted Azzari to represent him and to hear what took place. At times, Azzarl's name appears in the record as Izzari 9I do not credit Elmes' testimony that he told Miller that he had a "shortage" in his book when he talked to Miller on the telephone and again during their meeting on December 13 Elmes' demeanor on the stand was not that of a witness who is trying to answer questions truthfully, fully, and to the best of his ability. Furthermore, as demon- strated infra, a comparison between Elmes' testimony and company records reveals that many of his answers to material questions were, at the very least, misleading 9 The various reasons advanced by Respondent for Miller's discharge are explained and ,evaluated in section D, infra. GREENWOOD FARMS, INC. If Discharged, Give Full Particulars: Failure Rules-Attitude--non Cooperation. 655 to comply with Company Characteristics Excellent Good Fair Unsatis- factory Industriousness ----------------------------------------- X - Knowledge of lob---------------------------------------- x ------------------------------ Personal appearance x ------- (Conduct) ---------------------------------------------- x - (Cooperation)--------------------------------------------- x Safety---------------------------------------------------- x Accuracy -------------------------------- -- x ----------- - Sales ability --------------------------------------------- x Collection record----------------------------------------- X Remarks: short book, stops not turned in-overall negligence. The only entries made by Elmes on the above report were those under "Remarks." The others were made by Assistant Manager Leslie Shanahan, Miller's immediate supervisor Although Elmes said Shanahan was in "closest contact" with Miller's work, Elmes could not recall whether he talked to Shanahan before Miller's discharge but stated definitely that he did so afterward.1° However, Elmes was unable to recall anything Shanahan told him about Miller's work and Shanahan was not a witness. Elmes admitted, however, that Miller was not discharged because of his "attitude" or because of "non-cooperation," two of the reasons listed by Shanahan. Elmes, who had been general manager for more than a year at the time of Miller's discharge, described Miller as a below average driver but asserted that he had not discharged Miller earlier because "there were others to weed out, too, and it takes time." 11 However, there is no probative evidence that anyone had ever talked to Miller about his alleged shortcomings and there is no evidence that Miller had been warned that he would be discharged if he did not change his ways.12 President Marrow, Respondent's first witness, testified that Elmes reported that he discharged Miller "because of stealing, overcharging customers and shortage in book" of over $50. According to Marrow, Miller's overcharges and shortages were not caused by mistakes but by dishonesty. For example, Marrow claimed that Miller had entered one price in his book, collected a higher price from customers, ,and pocketed the difference. Elsewhere, Marrow asserted that Miller's shortages proved that he was stealing. Marrow asserted that he did not know the details but promised that Manager Elmes would provide them. However, as will be indicated, Elmes' testi- mony and company records clearly establish that Miller had done nothing dis- honest. Marrow's willingness to make so serious a charge against Miller , without justifica- tion, convinces me that Marrow was not a trustworthy witness, particularly when testifying about matters which concerned Miller. However, I credit those portions of Marrow's testimony in which he describes (1) his fear that the strike might cause a permanent loss of the Company's Westchester customers and (2 ) his efforts to remove the Westchester drivers from the ambit of the strike. Manager Elmes, on the other hand, did not accuse Miller of "stealing" and was generally much more restrained in his testimony. Even on direct examination, Elmes appeared at times to be a reluctant witness and frequently seemed to find it difficult to sustain the burden placed on him by President Marrow when the latter promised that Elmes would provide the facts upon which Marrow's charges against Miller were based. 1O When Elmes was asked if he told Shanahan "the reasons for Mr Miller's discharge," Elmes answered • "The reasons stated on paper, yes, sir " It Greenwood employed about 50 drivers before the strike. 12 Although Elmes testified that Shanahan had complained about Miller's book, when asked if he had ever mentioned the complaints to Miller, Elmes answered , "Through nor- mal reaction , I would I most likely did . . I couldn 't give you a definite yes and I couldn't give you a definite no." 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Elmes did not deny Miller's testimony that Elmes called him to the office to discuss driver Coughon's desire to work during his vacation. He asserted, however, that his "check" of Miller's book on that date was merely "routine." 13 According to Elmes, his check revealed a shortage of $83.54 and "quite a few things wrong with the book." Elmes also testified that he made a list (General Counsel's Exhibit No. 11) of the "discrepancies" he found in Miller's book which he described as follows: 16 or 17 "stops" not turned in; 30 to 40 delinquent accounts to which letters had not been sent, evidence that customers had been charged the one-half cent price increase (announced on November 30, effective December 1) since "November 27th-25th"; and 6 or 7 customer notes which had not been complied with. Finally, Elmes said that it was discovered that Miller had turned in a check which did not belong to his route. On direct examination, Elmes was asked to name other employees he had dis- charged for one or more of the reasons he had cited in Miller's case. He named 10 or 12 and gave the reason in each case. On cross-examination, however, Elmes admitted that only one of those named had worked for Greenwood. The others were employees of another company headed by Marrow and apparently managed by Elmes. Elmes' testimony on direct examination on this subject was therefore misleading and, as indicated, infra, the impression created by other portions of his testimony is found to be unjustified when company records are examined. Under these circumstances, I am unable to and do not accept Elmes' testimony generally at face value even if undisputed. This is particularly true of his testimony concern- ing Miller's alleged "shortage" and "overcharging" of customers, discussed infra. 1. The duties of a routeman Generally speaking, it is the duty of a driver to: deliver milk; take care of customer complaints; compute and leave bills approximately every 2 weeks; compute his "price allowance" on each account at the end of the month; and make prompt reports to the office concerning customers who stop taking milk (stops), who are away (aways), and who fail to pay their bills. Each driver keeps a "book" which contains a sheet for each account number or customer. Miller, who had route No. 64, had approximately 450 customers. Company rules applicable to routemen are set forth in a booklet which is fre- quently referred to in the record as the "pink" rules because of the color of the paper used. 2. The nonmoney items alleged by Respondent as contributing to its decision to, discharge Miller a. Miller's alleged failure to turn in stops and aways When a customer stops receiving service, a company rule requires the driver to notify the office at once so that a representative can call promptly and try to persuade the customer to resume service. The Company's experience has been that when 'this is done, at least 50 percent of the cancellations are revoked. Under these circumstances, it is important that stops be reported to the office immediately. When a stop is reported, an office clerk is supposed to initial the stop entry in the driver's book. Elmes testified that he found 16 or 17 uninitialed stops in Miller's book which meant, he said, that they had not been turned in. However, Miller testified without contradiction that shortly before his discharge he had turned in four sheets of stops to a clerk named Amorosa who said he was too busy to initial Miller's book. Similarly uncontradicted is Miller's testimony that Amorosa was called in to the meeting on December 16 and verified Miller's claim. Elmes' testimony on this subject was limited to a statement that he had never seen and had not been able to find the sheets. b. Miller's failure to notify the office to send letters to delinquent customers When a bill is unpaid, another rule requires the driver to notify the office to send the customer a letter. If the bill is still unpaid 7 days later, the driver is supposed to notify the office to send a second letter and the process is to be repeated until four letters have been sent. If the bill remains unpaid after four letters, the Company absorbs the loss. If fewer than four letters are sent, the bill is charged to the driver. 13 Elmes testified that he had planned to check some books that morning and Miller's. "face" reminded him of the books and he asked Miller to bring his book to, the office GREENWOOD FAR-IS, INC. 657 Elmes testified that when he checked Miller's book, he found 30 to 40 delinquent customers to whom the series of letters had not been sent However, there is no reference to Miller's alleged failure to send letters on Miller's termination report and there is no evidence that letters were mentioned either at the Miller-Elmes meeting on December 13 or at the expanded meeting 3 days later. Nor did Marrow refer to Miller's alleged failure to send letters or to report stops in his testimony concerning the reasons why Miller was discharged Route 64 was assigned to Miller for the first time on November 10, the day he returned to work after the strike. However, a comparison between the accounts listed by Elmes and the customer sheets from Miller's book reveals that 32 of the 52 accounts which Elmes listed in this category had stopped service well before the route was assigned to Miller For example, Elmes stated with respect to account No 321: No follow-up on bill However, the customer sheet bears the following notations : stopped 7/1/61;-this was paid in July-no more letters-see me for credit- Rose The sheets for 17 more accounts concerning which Elmes made similar comments show that service was stopped at least as early as September and one of them bears the notation "went to Ireland-will call." The customer sheets of 14 others show no deliveries after the beginning of the strike (October 24) and 5 of the 14 stopped service at least a week before the strike. While Elmes' comment in each of these cases (which he repeated at the hearing) is technically correct, it is incredible to me that Elmes believed that Miller should have notified the office to send letters to customers who stopped service weeks or months before he took over the route. This conclusion is borne out by the fact that Elmes, both on his list and in his testimony, omitted the dates on which service stopped when commenting on these accounts but always included the date in his comments with respect to accounts which were reasonably current Furthermore, when Elmes was asked on cross-examination whether he had included accounts which were delinquent before the route was assigned to Miller, his first answers were equivocal but upon being pressed, he testified: The stops have dates on them. That would be after his taking over the book .. . it would involve . . . from November 9 or 10 Under these circumstances, I conclude that Elmes concealed material facts at the hearing and knowingly gave testimony, the effect of which was, at the very least, misleading. It is true that Miller's book shows a number of customers who had failed to pay their bills after Miller took over the route and to whom, it appears, no letters were sent But Elmes chose not to rely on these instances alone. Instead, he included a high percentage of stale claims and then sought to conceal what he had done Why did Elmes act in this manner? The most obvious answer is that he recognized that a list of Miller's accounts which became delinquent after he took over the route would not adequately support the Company's claim that it discharged Miller in part because of his failure to notify the office to send letters. c. Milk bottle notes not complied with Customers frequently leave messages for the drivers in the milk bottles and Green- woodintroduced into evidence seven notes which are referred to in the record as the "milk bottle notes." Elmes testified that he found the notes when he went over Miller's book and determined by examining the book that Miller had not complied with the customer requests stated in the notes. One of the seven, however, was dated December 18, that is, after Miller was dis- charged. It concerns the check incident discussed infra, and was written not by a customer but either by Elmes or someone else in the office. Miller, it seems, is not the only one who makes mistakes. Only three of the remaining six notes are signed. However, I am assuming that the other three were written by the customer whose account number has been added by someone, probably Elmes. In three cases, the account sheet shows no delivery after November It would seem, therefore, that these notes were in Miller's book when it received its regular monthly "audit" about December 1. If so, there is no evidence that anything was said to Miller about them at that time. Moreover, the six notes are from customers whose account numbers appear on the Elmes list which means that the notes do not constitute separate "offenses" but are in effect a repetition of the charges that Miller failed to turn in stops and to notify the office to send letters ,658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, in two of the six cases, service was stopped only a few days before Miller was discharged so that it is quite possible that Miller had not had an opportunity to comply with the customer's request. 3. The "money" items alleged by Respondent as having contributed to its decision to discharge Miller a. Introductory statement Each morning the number of quarts of milk and units of other products taken out by the driver are recorded on a sheet which is retained by the Company. A copy or a "receipt" is given the driver. Each unit has a "booking in" or list price which appears to have been 30 cents a quart for milk. However, only a few customers pay the list price. The 60-plus customer sheets from Miller's book which were introduced into the record show only two who paid 30 cents in November. Other prices shown are: 25, 26, 261/2, 27, 271/2, 281/2. 29, 291/2, and 31 cents But the amount which a driver "owes" the Company at the end of a month is not determined either by adding the bills (even if correct) submitted to the customers or by multiplying units furnished by list price Instead, it is determined as follows: 1. The units taken out by the driver during the period are multiplied by the list price. The product is the amount which the driver theoretically owes the Company. 2. The driver computes his "discount" or "price allowance" for each customer's account by: (1) multiplying units delivered by list price; (2) multiplying units delivered by customer price; and (3) subcontracting the second product from the first. 3. The "discounts" are added together and the total is subtracted from the product obtained by multiplying the units delivered by the list price The difference is the amount which the driver "owes" the Company for units delivered. 4. The number of units delivered, returned, et cetera, is subtracted from the num- ber furnished the driver in the period. The difference is multiplied by the list price. The result is the amount the driver owes for units not delivered but not returned, reported, broken, et cetera 5. The product obtained by multiplying the units delivered by the price charged is added to the product obtained by multiplying the units unaccounted for by the list price. If the driver turns in less than the sum of these two figures, he is "short" by that amount. A hypothetical computation is set forth below.14 14 The hypothetical computation follows: EXAMPLE Assume 400 quarts milk furnished driver and assume route book shows 300 units delivered to customers. Driver Customer Units Price charged, owes company Discount or price allowance cents theoreti- cally A ---------------------------- 90 25 $22 50 9OX30less 90X25----------- $4 50 B ---------------------------- 80 25!2 20 40 8OX30 less SOX2534 ---------- 3 60 C ---------------------------- 70 26 18 20 70X30 less 70X26------------ 2 80 D---------------------------- 60 26A 15 90 60X30 less 60X2614---------- 2.10 13 00 400 units furnished at Wit ------------------------------------------------------------------- $120 00 100 units unaccounted for at 30t------------------------------------------------------------- 30 00 300 units delivered at 30^ -------------------------------------------------------------------- go 00 90 at discount of --------------------------------------------------------------------------- 80 at discount of------------------------------------------------------------------------- 70 at discount of-------------------------------------------------------------------------- 60 at discount of---------------------------------------------------------------------------- Amount driver owes company------------------------------------------------------- 13.00 4 50 3 60 2 80 2 10 107 00 GREENWOOD FARMS, INC. 659 b. Miller's alleged shortage As previously found, President Marrow stated at the meeting with the union representatives on December 16 that Miller had been discharged for a $59 shortage and that he "didn't have to go any farther." Although Marrow promised that Manager Elmes would supply the "details," the latter's testimony was likewise largely conclusionary. According to Elmes, he went over Miller's book, entered "red figures" and then gave the book to a girl in the office to total the red figures on an adding machine. When she gave him the adding machine tapes, Elmes prepared a "summary" by adding and subtracting various totals shown on the tapes. The tapes, which consist of hundreds of "raw" figures and the summary (which is a sheet on which various figures are added and subtracted) are the only objective evidence introduced by Respondent to substantiate its claim that Miller had a shortage. No breakdown of Elmes' computation was supplied and it is impossible to check its accuracy although it is correct only if Elmes made not a single error in "figuring" the 450 sheets in Miller's book and in checking the Company's records of the units of milk, et cetera, charged to Miller and the office girl made not a single tabulating mistake. Moreover, both Elmes' summary and his testimony cast doubt on the accuracy of the "final" figure of $60.20. Thus, the first computation on the summary resulted in a "shortage" of $75.93. This is then reduced to $71.81, by subtracting $4 12. According to Elmes, he checked the book again and added $14 for a third total, $85.81. This figure is reduced to $63.66 by subtracting $22.15 but these figures are crossed out so that the $85.81 is restored. But this is not the "final" figure for there are two more subtractions and one more addition before the final figure of $60 20 appears. In view of the complicated bookkeeping system described above and the difficulty which Elmes himself had in arriving at a "final" figure, it is obvious that Miller was not exaggerating when he said that "You would have to have a real knowledge of book- keeping to be able to go through the whole system and the average milkman hasn't got that knowledge. At least I haven't." In short, as Miller asserted, a driver would have to employ a certified public accountant in order to check the accuracy of com- pany claims with respect to shortages.15 Under these circumstances, I have serious doubts concerning the accuracy of the $60 20 shortage ult;mately claimed by the Company and am not even sure that Miller was short any appreciable amount.18 I am of the opinion that if Miller was short, Respondent would have been able to and would have produced more objective and specific proof than the record contains 17 But even if it is assumed that Miller was short $60, it does not follow that he was discharged, even in part, for that reason Miller was discharged on December 13 although the company rules provide: All shortaees over $50 must be found by the 15th of the month, or shortage paid to the office by that time. [Emphasis supplied.] 18 For the reasons already stated, I do not credit Elmes' testimony that M,ller went over his book and was able to point out errors in Elmes' figures totaling $27 87 10 If Miller's book was short, the shortage may well have been attributable to the driver who had the route for the day or two between the strike and Miller's reinstatement and/or to the driver who substituted for Miller on his 2 days off a week. 17 On cross-examination, Elmes, who had Miller's book before him, was asked the follow ing questions and gave the following answers: Q. . . . I want you to show me right now where in Miller's book you found a shortage or a discrepancy. A The total amount of red figures would indicate the balance outstanding in the book. The office figure would indicate the balance supposed to be in the book. TRIAL EXAMINER. Does the office figure appear on this sheet ever? The WITNESS: No, it is on another sheet. You deduct one from the other and that is where we find out the amount of the shortage. [The other sheet was never offered into evidence I • o • ♦ • e r Q. Can you turn in that book to the pages that you used to calculate Miller's shortage? A The whole book was used. 681-492-63-vol. 140-43 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, President Marrow seemed unaware of the rule. When questioned about it, Marrow first stated that the driver has until the 15th only if the amount is under $50. Upon further questioning about the rule, Marrow answered, "I really don't know. Mr. Elmes put the rules out." Marrow also testified that drivers who are allegedly short over $50 are given "a couple of weeks" to try to find the shortage and if they do not find it, "we fire them." When Marrow was reminded that Miller was not given until the 15th to find the shortage or pay it, he explained that this was the second time Miller was short and that when it happened before, he told Elmes, "if it happens again, I don't want the man working for me." 18 In short, the gist of Marrow's testimony was that a driver is discharged when he has a second genuine shortage. The foregoing testimony is wholly unsupported by the record. Miller's testimony that he was not warned or even criticized at the time of his previous shortage is undenied. Moreover, Elmes did not refer to any instruction from Marrow of the type testified to by the latter. In addition, the very existence of the rule giving a driver until the 15th of the month to find the shortage or pay it indicates that shortages of over $50 are not uncommon.1e In fact, Marrow himself later admitted that an average of 6 out of 50 drivers are short some amount every month. Elmes, in turn, testified that drivers are rarely, if ever, discharged because of a shortage alone and that Miller's (alleged) failure to turn in stops was a more serious offense than his shortage. Finally, Elmes testified as follows concerning the shortages of seven other drivers during 1961: Total mos short Highest Others above $50 Route 56-------- -------------- 10 $92 52 1 Route 57----------------- ------------ 10 65 77 2 Route 58--------------------------- -- 10 54 76 0 Route 59--------------------------- 10 165 71 3 (one of these over $100). Route 61-------------------- -------- 7 166 00 0 Route 62------------------------------ 10 261 29 2 (both over $100) Route 65----------------------------- 10 220 15 2 (one of these over $100) In contrast, Miller's undenied testimony discloses that his only previous shortage in the nearly 9 years he had worked for the Company was the $94 shortage 13 months earlier. When Marrow was asked how he distinguished between a driver whose shortage was due to a mistake and one whose shortage was due to dishonesty, he answered that a dishonest driver is one who is "continuously short." When "a fellow is short once in six months," Marrow said, "we tell him to be careful and watch it. Others we let go." Nonetheless, as stated supra, Marrow asserted that when Miller was short 13 months earlier, he told Elmes to discharge Miller if it happened again and explained the failure to give Miller until the 15th to find his shortage or pay it on the ground that it was his second shortage. c. Overcharges 1. General overcharging As previously indicated, President Marrow indicated that one of the major reasons for Miller's discharge was his alleged "stealing" from or "overcharging" of cus- is Thirteen months earlier, Miller was charged with a shortage of $94 48. He had been away for 3 weeks campaigning (unsuccessfully ) for an office in the Union on an "opposi- tion" ticket. When he was told about the shortage on his return, he said that he doubted he would be able to find it and predicted that he would probably pay it. This he did in late April 1961, i.e , 4 or 5 months later Miller explained that shortages are not matters of great concern to the Company because each driver posts $200 as security. Miller "paid" the shortage allegedly found in December 1961, only in the sense that the Com- pany deducted it from his $200 security. Cf Marrow's testimony that Miller "paid" the money "so he proves that he has taken it out " 19 As previously indicated , I do not credit Elmes' testimony that he mentioned the alleged shortage to Miller on December 13 I have credited instead Miller's testimony that the shortage was brought up for the first time at the meeting with the union repre- sentatives on December 16. If the shortage had been mentioned on the 12th or 13th, Miller, who was aware of the rule, would almost certainly have demanded an opportunity to pay it, thereby removing it as a grounds for discharge. GREENWOOD FARMS, INC tamers. It is interesting to note, however, that there is no reference to "overcharg- ing" customers on Miller's termination report When questioned concerning this omission, Elmes explained that the overcharges could be included in his entry "overall negligence." On November 30, the Company announced a price increase of one-half cent ef- fective Friday, December 1. On direct examination, Elmes stated that when Miller prepared his first December bills, he charged the higher price for deliveries "from November 27th-25th." Since Miller's account sheets show deliveries only every other day, this would mean that only two, or at the most three deliveries were com- puted at the new rate. However, Elmes admitted on cross-examination that he would not be surprised to learn that the books of the other drivers disclosed that they had charged the higher price for one or two deliveries but would be surprised by any- thing "over" four or five. In answer to the next question, Elmes stated that half of Miller's customers were charged the increased price for one or two deliveries and the other half for five deliveries. Elmes admitted that the charges were noted in Miller's book, which means that Miller was not trying to conceal what he had done and was turning the money in to the Company, not pocketing it, as Marrow claimed. Miller's explanation (which I credit), for having charged the higher price through- out the entire billing period which included the effective date of the price increase was that the drivers had been instructed never to leave a "split" bill (one which shows a number of deliveries at one price and a number at a higher price) because this puts the customer on notice that the price has gone up20 Miller also testified- and his customer sheets corroborate his testimony-that he noted in the upper right- hand corner of the sheets, the amount of the "overcharge." His plan, he explained, was to deduct the amount of the overcharge from each customer's next bill, thereby in effect giving her a "refund." In other words, if Miller had not been discharged, the overcharges would have disappeared when he prepared his next bills which would have been in a few days. Elmes admitted that when he accused Miller of overcharging customers, Miller showed him the figures in the upper-right corner of the sheets, and explained that he would give the customers credit for the overcharges on their next bills. After hear- ing Miller's explanation, Shop Steward Azzari exclaimed, "Look, Eddie, everything is [in] black and white. There is no cheating, no nothing . When it was pointed out to Elmes on cross-examination that Miller's system would have resulted in the elimination of the overcharges, Elmes replied that Miller "would have to have an okay to put . . . figure[s] like [those] into the book This is not company procedure." 21 Be that as it may, the entries were there and were explained to Elmes before Miller was discharged. Yet Marrow, at least, claimed at the hearing that Miller was pocketing the overcharges and Elmes sought to create the impression that the overcharges reflected on Miller's integrity. I can only conclude therefore that Respondent's witnesses knowingly misrepresented the nature and the significance of Miller's overcharges Perhaps Marrow used such "hypnotic" words as "cheating" and "stealing" on the theory that a molehill may come to be thought of as a moun- tain if it is always referred to as a mountain.22 Despite the absence of a reference to "overcharges" on Miller's termination re- port, Respondent argued that it was justifiably concerned about them because they might result in the loss of customers. However, Respondent offered no evidence of any complaints from customers. Moreover, even assuming that Miller's customers were overcharged for six deliveries, the maximum claimed by Respondent, this would mean that 1 quart customers were overcharged 3 cents, 2 quart customers 6 cents. 3 quart customers 9 cents, and 4 quart customers 12 cents. Although no customer likes to be overcharged even a few cents, it is difficult to believe that the Company feared that Miller's customers would change milk companies because of overcharges of 3 cents or even 6 or 12 cents (even if they were aware of it which is doubtful) especially if told they would receive credit for the overcharges on their next bills. -"I credit Miller 's testimony in this respect and discredit Elmes ' testimony that "split" bills are submitted 2 'When counsel for Greenwood brought out on cross -examination of rebuttal witness O'Connor that he noted his "overcharges" elsewhere on the sheets . I asked if counsel was suggesting that one of the reasons for Miller 's discharge was that he had put the figure in one place rather than another Counsel replied "No . I'm not suggesting that I am suggesting . . that the system Mr Miller used was not a system used by anyone else." In an opinion written by Judge Frank , the Court of Appeals for the Second Circuit noted the "hypnotic power" of a word or phrase and commented , "Give a bad dogma a good name and its bite may become as bad as its bark" Kviukundis Shipping Co v Amtorg Trading Corp ., 126 F 2d 978, 984, footnote 17 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, the Company apparently kept the "overcharges." At least, it made no claim that the customers were given credit for them on their next bills as Miller had planned to do. 4. Miller's actual work record The foregoing analysis is not meant to imply that Miller had a perfect work record. Among other things, he may have failed to turn in a few stops and apparently did fail to notify the Company to send delinquent letters in a number of cases. He also made a few mistakes in computing bills and may have miscal- culated his "price allowance" on some accounts. Although Respondent could have validly discharged Miller for these errors and violations of company rules (if they were in fact the reasons and not merely pretexts), Respondent itself did not claim that Miller was or would have been discharged for these reasons standing alone. E. Concluding findings As set forth supra, President Marrow feared that continued participation in the strike by the Westchester drivers would result in the permanent loss of Greenwood's Westchester customers to companies whose employees were not on strike. Marrow therefore sought repeatedly to persuade the Westchester drivers to abandon the strike and all of them except Miller and O'Connor did deliver milk 1 day during the period prior to the sale of the Westchester business to White Clover. Moreover, Marrow's efforts might well have succeeded but for Shop Steward Miller's vigorous and continuous opposition. Miller reminded the men that they had voted to strike, contradicted Marrow's statement that the Union had given permission for them to work, and warned them that if they did so on "their own," they would "assume the responsibility." In short, Shop Steward Miller sought to and did enforce the order the Union gave the stewards at the beginning of the strike, namely, that no member of Local 584 was to go out on a route. Marrow knew that Miller was shop steward and was present on most if not all of the occasions when Miller spoke to the drivers. Although Marrow first testified that he had no reason to believe that Miller was in any way responsible for the decision of the Westchester drivers to remain on strike, he later admitted that Miller had opposed his efforts to achieve the contrary result "many" times. In addition, Marrow repeatedly accused Miller of being responsible for the continued strike by the Westchester drivers and insisted that Miller had the authority to send the men back to work. Although Miller was equally emphatic in stating that he could do nothing absent specific instructions from the Union, Marrow made it clear that he did not believe Miller, and on one such occasion stated flatly that he would "get" Miller as soon as the strike was over. I also note President Marrow's wholly unjustified claim that Miller had been stealing. Although Miller's work record was not perfect, he was guilty of nothing which adequately explains Marrow's intemperate charges against him. In my opinion, Marrow's attitude toward Miller must have had its origin in something other than Miller's actual work record. I conclude that it had its origin in Miller's conduct during the strike, for there is nothing else in the record which would account for Marrow's sudden and obvious antagonism toward Miller. The courts have recognized repeatedly that an inference of "discriminatory moti- vation is sustained and buttressed by the fact that the explanation" given by the Company for its action "fail[s] to stand under scrutiny." N.L.R.B. v. Griggs Equipment, Inc., 307 F. 2d 275 (C.A. 5), and cases cited therein. In my opinion, this is particularly true if the employer's explanation in itself reveals a hostility toward the employee out of all proportion to his actual deficiencies. 2. Accounts Nos. 244A and 288 According to Elmes, Miller billed account No. 244A for 9 quarts of milk which the customer did not receive and Miller admittedly left account No. 288 a bill for $24 when it should have been $16. Miller explained that when he went to collect account No. 244A, the customer told him she had received an extra delivery and paid him $2.34 more than the bill be had left her. As Miller pointed out, be recorded the amount collected in his book but if he had "wanted to cheat" he could have reported that he had collected the lesser amount and pocketed the extra and the Company would never have known anything about it. Although Respondent scoffed in its brief to the Trial Examiner at Miller's explanation, the fact remains that the customer paid the bill GREENWOOD I'AR_MMS, INC. 663 without protest as she surely would not have done if she had been overcharged by more than $2.23 in the case of account No. 288, Miller admitted that he made a mistake when he left a bill for $24 when it should have been for $16. However, the account sheet shows that the customer paid only $16. It also shows, significantly, that the customer did not stop taking milk even though a sizable mistake had been made in her bill. 3. The check erroneously turned in According to Elmes, Miller also improperly turned in and claimed credit for a check for $6.75. Elmes admitted that the chain of events was set in motion by a mistake make by someone in the office who placed the check in Miller's book because the customer had "moved on to Mr. Miller's route." Although Elmes testified that there was no sheet for the customer in Miller's book and that Miller credited the check to the account of an entirely different customer, I am far from convinced that this is what Miller in fact did. Since the customer who sent in the check had moved to Miller's route, there would surely be a sheet for her in Miller's book. It seems more likely that what Miller did was to turn in the check for an account on his route which was in fact payment for milk received before she moved. It is possible, of course, that the customer also owed Miller money and that when he found the check in his book, he naturally turned it in as a part of his collections. Admittedly, these observations are purely speculative but Respondent' s failure to introduce the relevant customer sheets makes it impossible to determine exactly what occurred. Since Elmes' descriptions of Miller's other alleged shortcomings frequently fail to tell the whole story, I do not accept Elmes' version of the check incident at face value. Nonetheless, it is clear that there was some mixup which began when the check was placed in Miller's book by mistake and which was further complicated by Miller's failure to "catch" and correct the mistake. However, it is far from clear that the Company was aware of the contretemps until after Miller was discharged. If it was not, the check incident played no part in Miller's discharge. But even assuming that the Company knew before Miller was discharged that he had turned in a check by mistake, in view of all the circumstances I do not credit Elmes' implied claim that Miller's part in the incident amounted to a serious error 24 I therefore conclude that long before the strike was over, Marrow decided to terminate Miller's employment because of the latter's generally successful opposition to Marrow's efforts to persuade the Westchester drivers to abandon She strike and return to work. Marrow's first opportunity came at the close of the strike. Accordingly, Miller and O'Connor, the other Westchester driver who did not report to White Clover after the sale, were not recalled. It is undisputed that when Miller asked Manager Elmes the reason, the latter replied that Marrow had told him that Miller and O'Connor were not to be called back to work. However, both were reinstated after Elmes received a call from a union official demanding the reinstatement of the two men. Marrow testified that he promptly offered Miller and O'Connor reinstatement either with White Clover in Westchester or Greenwood in the "city." Although Marrow admitted that there may have been a delay of a day in their actual reinstatement, he asserted that, if so, it was caused by the fact that they had been Westchester drivers and it took a little time to find "city" routes for them. Although Marrow's explanation for the delay is reasonable on its face, it is not credited. In the first place, it is wholly inconsistent with Elmes' statement to Miller that Marrow had ordered him not to recall the two men. In the second place, it is refused by Elmes' admission that a union official called him concerning the reinstate- ment of Miller and O'Connor, a call which would not have been necessary had they been offered reinstatement in the manner described by Marrow. Approximately a month later, Miller's position as shop steward again caused him to take a position which irritated the Company, namely, his insistence that employee Coughon could not work during his vacation without permission from the Union. ^ According to Miller, the customer told him that she had received deliveries on con- secutive days although she was only supposed to receive deliveries every other day 2+ At the hearing, I asked whether the Company's cashing of the check and the sub- sequent collection of the same amount from Miller meant that the Company was paid twice. Elmes satisfactorily answered the question in the negative when he explained that the mixup had resulted in another driver being "short" $6.75 and the money re- ceived from Miller was credited to that driver 's account to correct the error. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After a conference between Marrow and Elmes, the latter directed Miller to bring his route book to the office and Miller was discharged the next day. Miller had worked for the Company for 8 or 9 years and the record contains no evidence that he had ever been told that his work was unsatisfactory in any respect. Despite the absence of any previous criticism, Assistant Manager Shanahan indicated on Miller's termination reportthat Miller was "unsatisfactory" in his: (1) industrious- ness; (2) knowledge of the job; (3) personal appearance; (4) conduct; (5) coopera- tion; (6) accuracy; (7) sales ability; and (8) collection record. Only his "safety" record was checked as "good." Such sudden, wholesale criticism of Miller is not only suspicious but Respondent offered no evidence with respect to Miller's record in most of the areas in which Shanahan indicated he was seriously deficient. Moreover, Shanahan described the "particulars" of Miller's discharge in very general terms, i.e., "Failure to comply with company rules-Attitude-noncoopera- tion." Elmes' "remarks" were only a little less general, namely, "short book-stops not turned in--over-all negligence." Significantly he did not indicate either the amount of the shortage or the number of stops not turned in. Although Miller's alleged cheat- ing (overcharging) of customers and his putative failure to notify the office to send letters to customers with unpaid bills were two of the major items relied upon by Respondent at the hearing, neither was mentioned on Miller's termination report. Furthermore, the cornerstone of Respondent's position at the hearing was Mar- row's testimony that Miller was discharged for two reasons alone: shortages and over- charging customers which, he said, proved that Miller was dishonest.25 Elmes, on the other hand, testified that Miller's (alleged) failure to turn in stops was a more serious offense than his (alleged) shortage and stated that Miller would not have been discharged for the shortage standing alone. In fact, Elmes at times seemed to be saying that his real complaint against Miller was the latter's (alleged) failure to comply with company rules concerning stops, unpaid bills, and customer complaints. In any event, as demonstrated supra, none of the reasons advanced by Respondent at various stages of the proceeding stands up under scrutiny. Miller had not been stealing either from his customers or from the Company. And Elmes' claims are either refuted by the record or are shown to be grossly exaggerated. I therefore con- clude that Miller was not discharged for the reasons stated by Respondent-either singly or in combination. I find instead that Respondent gathered together and either misrepresented or magnified a number of relatively minor incidents in an effort to justify Miller's discharge which was caused in fact by his opposition to Marrow's efforts to persuade the Westchester drivers to abandon the strike. On the basis of the entire record, including Miller's opposition to Marrow's efforts to induce the Westchester drivers to abandon the strike, Marrow's threat during the strike to "get" Miller, and the failure of the reasons asserted by Respondent for its actions to stand up under scrutiny, I find that a preponderance of the evidence on the whole record supports the allegations of the complaint that Respondent delayed Miller's reinstatement after the strike and later discharged him because he sought to persuade the Westchester drivers to remain on strike. Since Miller's conduct con- stituted protected union (and concerted) activity, it follows, and I find, that Re- spondent violated Section 8(a) (3) and (1) of the Act by delaying Miller's reinstate- ment after the strike and by discharging him a month later. In view of all of the circumstances, I also find that President Marrow's statement that he would "get" Miller after the strike interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them by Section 7 of the Act. That this was no idle comment is disclosed by the fact that when the strike ended, Re- spondent first delayed Miller's reinstatement and then discharged him a month later. In its brief, Respondent argued that the Board should take no action in this case because the collective-bargaining contract contains a grievance procedure ending in 25 During cross-examination , Marrow was asked: Q Now the record stands that you fired Miller for two reasons-shortages and overcharging customers? A. That's right s a * s f i 4 Q I want the record to be very clear on this. You stated that one of the reasons Miller was discharged was that he was charging customers more for milk than he was submitting to the company, is that correct' A. That's right. And shortage in the book Q. In addition to a bookkeeping shortage? A. Well, it isn't a bookkeeping shortage. He took the money out as far as I am concerned. There were no mistakes. As far as I am concerned he has got the money. He paid it back. So he proves that he has taken it out. GREENWOOD FARMS, INC. 665 arbitration pursuant to which President Marrow and Manager Elmes met with Miller and two union representatives on December 16. According to Respondent, one of the issues to be decided is whether "it is appropriate and whether it furthers the purposes" of the Act for the Board to concern itself with a matter which the "parties have dealt with in accordance with their contract." 26 The short answer to this contention is that the right of an employee not to be discriminated against because he engages in activity protected by the Act is not a contract right but a public right created by the National Labor Relations Act. As the Court said in Amalgamated Utility Workers, etc. v. Consolidated Edison Com- pany of New York, Inc., 309 U.S. 261, 265: ... Congress had entrusted to the Board exclusively the prosecution of the proceeding , the conduct of the hearing, the adjudication and the granting of appropriate relief. The Board as a public agency acting in the public interest, not any private person or group, not any employee or group of employees, is chosen as the instrument to assure protection from the described unfair conduct in order to remove obstructions to interstate commerce.27 Moreover, in order to enable the Board to perform its duty, Congress gave it the power to take testimony under oath and to subpena relevant records. And, as indicated, many of the facts which led me to conclude that the Company violated the Act discharging Miller came to light only as the result of the cross-examination of witnesses under oath and the examination of company records which were produced pursuant to a subpena issued at the request of Miller's counsel. Needless to say, Marrow and Elmes were not under oath at the meeting on December 16 and neither Miller nor the Union had the power to subpena company records. This means that the Union was unaware of all of the facts when it accepted the Company's explana- tion for Miller's discharge.28 In my opinion, it would thwart rather than effectuate the policies of the Act to hold that because the parties had a brief discussion of Miller's discharge the Board should not determine whether that discharge violated the Act. The fact that a major purpose of the Act is to encourage collective bargaining does not mean that Congress intended the Board to abdicate to private parties its duty to protect public rights or that Congress intended the bargaining process to be a substitute for the procedure established the Act for protecting employees in the exercise of their statutory rights. III. THE REMEDY Having found that Respondent has engaged in unfair labor practices, my Recom- mended Order will direct it to cease and desist from the unfair labor practices herein found. Because Respondent has demonstrated its willingness to discriminate against an employee because he seeks to persuade other employees to engage in activity protected by the Act, the commission of similar unfair labor practices in the future is reasonably to 'be anticipated. My Recommended Order will therefore also direct Respondent not to engage in like or related conduct in the future. I will also include a requirement that Respondent offer Harry Miller immediate and full reinstatement with backpay, said backpay to be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289. The General Counsel has requested that interest at the rate of 6 percent per annum be added to the net backpay, if any, due Miller. For the reasons stated by the Board in Isis Plumbing & Heating Co., 138 NLRB 716, issued on September 21, 1962, I find that the allowance of interest is within the Board's powers under Section 10(c) of the Act, and that it is a desirable remedial measure to compensate Miller, as fully as possible, for any loss resulting from Respondent's discrimination against him. Accordingly, my Recommended Order will include a provision requiring the 24 Since there is no evidence that Miller filed a written complaint or grievance, I am not convinced that Miller's discharge was "handled . . . as a grievance" as asserted by Respondent. 27 Cf. N.L R.B. v. Newark Morning Ledger Co., 120 F 2d 262, 267-268 (CA. 3) 28 Respondent concedes that if Miller claimed that the Company and the Union "acted together," the Board should consider the issue of his discharge. Although there is no evidence that the Union caused the Company to discharge Miller, the record indicates that the Union accepted the Company's explanation with few or no questions asked Such ready acquiescence by a union to the discharge of its shop steward is surprising, to say the least Moreover, the record discloses a possible explanation , namely, Miller's can- didacy the previous year for union office on the ticket which opposed that on which one of the union representatives present on December 16 was a candidate. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD payment of 6 percent interest on backpay (not compounded), as requested by the General Counsel. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. By delaying Harry Miller's reinstatement at the end of the strike and by dis- charging him a month later because he sought to persuade the Westchester drivers to remain on strike, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3) and ( 1) and Section 2(6) and (7) of the Act. 3. By threatening to "get" Miller at the end of the strike because he sought to per- suade the Westchester drivers to remain on strike , Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 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, Greenwood Farms, Inc , its officers, agents , successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating against employees because they attempt to persuade other employees to engage in activity protected by the National Labor Relations Act. (b) Threatening employees with reprisals for attempting to persuade other em- ployees to engage in activity protected by the National Labor Relations Act. (c) In any like or related manner interfering with, restraining, or coercing em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Harry Miller immediate and full reinstatement to his former position, or, if his former job no longer exists, a substantially equivalent position , without prejudice to his seniority or other rights and privileges , and make him whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records , social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms hereof. (c) Post at its place of business , copies of the attached notice marked "Appen- dix." 29 Copies of such notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof , and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including ,all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Second Region , in writing, within 20 days from the date of this Intermediate Report and Recommended Order , what steps Respondent has taken to comply herewith.3° m If this Recommended Order be adopted by the Board, the words "Pursuant to a De- cision and Order" shall be substituted for the words "As Recommended by a Trial Examiner" In the notice. If the Board's Order Is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" for the words "Pursuant to a Decision and Order." 80 If this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Region, In writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES As recommended by a Trial Examiner of the National Labor Relations Board and in order to conduct our labor relations in compliance with the National Labor Rela- tions Act, we notify our employees that: WE WILL NOT discharge or take any other action against any employee because he seeks to persuade other employees to engage in union or concerted activity protected by the National Labor Relations Act. THE CROSSETT COMPANY 667 WE WILL NOT threaten any employee with reprisals because he seeks to persuade other employees to engage in union or concerted -activity protected by the National Labor Relations Act. WE WILL offer Harry Miller his former position or a substantially equivalent position, without loss of any rights or privileges he had in such position. WE WILL make Harry Miller whole for any .loss of pay he may have suffered by reasons of our discrimination -against him. GREENWOOD FARMS , INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any questions concerning this notice or compliance with its provisions. The Crossett Company and International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO International Woodworkers of America, Local No. 5-475, AFL- CIO and International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO. Cases Nos. 26-CA-1213 and 26-CB-182. January 17, 1963 DECISION AND ORDER On July 6, 1962, Trial Examiner Reeves R. Hilton issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondents filed exceptions to the Inter- mediate 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 [Members Rodgers, Fanning, and Brown]. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent with the decision herein. The Crossett Company, herein called the Respondent Company or Crossett, is engaged in the manufacture of lumber, paper, and related products at Crossett, Arkansas. For 15 years or more Crossett has been party to various collective-bargaining agreements with the International Woodworkers of America, Local No. 5-475, AFL-CIO, herein called the Respondent Union or IWA, covering the employees engaged in these. operations. Currently, there are approximately 700 employees covered by these collective-bargaining agreements. One 140 NLRB No. 62.