Dairylee, Inc.

DAIRYLEE, INC. 829 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of District 50, United Mine Workers of America , or any other labor organization , by discharg- ing any of our employees or in any other manner discriminating against our employees in regard to their hire or tenure of employment, or any term or condi- tion of employment. WE WILL NOT warn employees that we will never sign a contract with the above-named Union unless all our employees joined that Union ; threaten our employees that the plant will be closed and moved if they select the Union as their bargaining representative ; interrogate our employees concerning their union activities and the activities of other employees in a manner constituting inter- ference, restraint, or coercion in violation of Section 8 (a) (1) of the Act; warn our employees that the Union can do nothing for them ; prohibit our employees from talking and soliciting for the Union during nonworking time or forbid our employees from wearing union buttons in the plant ; threaten our employees with discharge for engaging in union activities ; create the impression of surveillance of our employees' union activities ; instruct our employees to use their influence to discourage union activities of other employees ; or inform our employees that they have been reprimanded for engaging in union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organi- zations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Mary Ann Brothers immediate and full reinstatement to her former or substantially equivalent employment and make her whole for any loss of pay suffered as a result of our discrimination against her. All of our employees are free to become or refrain from becoming members of the above-named Union, or any other labor organization. PARKER SEAL COMPANY , DIVISION OF PARKER-HANNIFIN CORPORATION 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 , Federal Office Building, Room 2023, 550 Main Street , Cincinnati, Ohio, Telephone No. 381- 2200, if they have any question concerning this notice or compliance with its provisions. Dairylee, Inc. and Local 653, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Case No. 1-CA-4478. November 18, 1964 DECISION AND ORDER On August 31, 1964, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act and recom- mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. 149 NLRB No. 83. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the Respondent filed exceptions to the Decision 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 [Members Leedom, Fanning, 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, aid recom- mendations of the Trial Examiner with the addition noted below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts, as its Order, the Order recom- mended by the Trial Examiner, and orders that Dairylee, Inc., West Bridgewater,' Massachusetts,, its officers, agents, successors, and assigns, take the action set forth in the Trial Examiner's Recom- mended Order with the following addition : Add the following paragraph as paragraph 2(b), the present paragraph 2(b) and those subsequent being consecutively reletteied: "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 Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." 3 At the hearing the Respondent moved to dismiss the complaint because of non- compliance with Sections 101.4 and 101.7 of the Board's Rules and Regulations and state- ments of Procedure , Series 8, as amended. Specifically the Respondent alleged that the General Counsel had failed to investigate the charge or to afford Respondent an oppor- tunity to settle the case before the issuance of the complaint. While we agree with the Respondent that its motions were ngt'Cintimely in view of the-fact that issue had been joined by the service of an answer to the complaint, nevertheless the motions were properly denied. Compliance with the Board's Statements of Procedure in a complaint case is not a jurisdictional requirement. See Un4ted Steelworkers of Amer", AFL-CIO (Boyles Bros. Drilling Company), 123 NLRB 124. Furthermore , the failure of the General Counsel to afford the Respondent an opportunity to settle the case before the issuance of the com- plaint did not prejudice Respondent since the record shows that it was given an oppor- tunity to settle on numerous occasions after' the complaint was issued, but came forth with no offer. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the; Act, commenced with a charge filed by the, above-indicated Charging Party; hereinafter' sometimes referred to as the Union, on February 11, 1964. ^ Thereafter the General Counsel of the National Labor Relations Board, acting through the Board's Regional Director for Region 1, issued the com- plaint herein on March 25, 1964. The complaint alleged, in addition to jurisdictional DAIRYLEE, INC. 831 matters, the commission of unfair labor practices defined in Section 8(a) (3) and (1) of the Act by the above-indicated Respondent , hereinafter sometimes called the Company or Dairylee. The unfair practices alleged relate to the termination of Gary Saccocia on Febru- ary 7, 1964, allegedly in reprisal for his activity on behalf of the Union , and to alleged instances of interference with employees ' organizational rights under Section 8 (a) (1) of the Act at or about the time of his termination . Respondent's duly filed answer denies that it is engaged in commerce within the meaning of the Act, asserts that Saccocia voluntarily left its employ, and denies the commission of any and all of the unfair labor practices alleged. On the complaint and answer hearing was held at Boston , Massachusetts, on April 21 and 22, 1964, before Trial Examiner William J. Brown . All parties appeared and participated as noted above , being accorded full opportunity to present evidence and argument on the issues. At the outset of the hearing Respondent 's counsel presented motions to dismiss the complaint for alleged noncompliance with Sections 101.4 and 101 .7 of the Board's Statements of Procedure . The Trial Examiner denied both these motions on the grounds they were not litigable before the Trial Examiner following the issuance of the complaint and at the time and place of the hearing , issue having been joined by the complaint and answer. Subsequent to the hearing, the General Counsel filed a motion to amend the tran- script which motion was accompanied by proof of service on the other parties. No opposition to the motion having been received and it appearing necessary and proper, the motion is granted and the transcript is deemed amended accordingly , copies of the motion to amend being heieby incorporated as part of the record . A brief filed by the General Counsel has been fully considered. Upon the entire record herein , and on the basis of my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT EMPLOYER It appears from the complaint and answer that Dairylee is a corporation organized under the laws of the Commonwealth of Massachusetts and maintains its principal office and place of business in West Bridgewater , Massachusetts, where it is engaged in the retail and wholesale sale and distribution of milk, related dairy products, and packaged orange juice . At all material times Respondent 's direct interstate purchases of orange juice amounted to approximately $3,600 per year. While Respondent's sales are all within the Commonwealth of Massachusetts it was engaged during 1963 and the first quarter of 1964 in an arrangement whereby it purchased and received milk having an annual cost of about $35,000 from a Vermont dairy and designed for temporary storage in Respondent 's storage facilities and transhipment by Respondent to another, unrelated dairy. In view of the fact that Respondent 's direct interstate receipts are regularly recurring and not insubstantial and since its annual gross sales exceed $500,000, I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the volume of its operations are such as to justify and require the assertion of jurisdiction on the part of the Board. If. THE LABOR ORGANIZATION INVOLVED The evidence, including a stipulation of the parties entered into at the hearing, indi- cates and I find that the Union is a labor organization within the purview of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction and summary of events Dairylee's merchandising operations are carried out in the area about Brockton, Massachusetts, where it has been engaged for at least 10 years in the wholesale and retail sale and delivery of milk, related dairy products , and orange juice. Dairylee's president is Fred Walsh who appears to be in active and immediate control of Respondent's day-to-day operations . Reporting directly to Walsh are two employees, Joseph Smith and Lloyd Tighe, whose status is in issue in this proceeding. The General Counsel's position is that these two are supervisory employees and that through their agency Dairylee acquired knowledge of Saccocia 's union activities and engaged in acts of interference within the purview of Section 8 (a) (1) of the Act. Smith, Walsh's son-in-law, and Tighe appear to be the day-to-day connecting link between Walsh and an indeterminate number of wholesale and retail route foremen 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who are assigned to oversee and assist the operation of the 16 wholesale and retail driver-salesmen of whom Saccocia was one. Neither Smith nor Tighe testified in the hearing and an understanding of their authority and responsibility must be derived from testimony of Saccocia as to what he observed them do and from Walsh. While the evidence indicates that neither Smith nor Tighe regularly substitutes for Walsh in his absence, that role apparently being performed by one Arthur Turner, a friend having no apparent connection with Dairylee other than his accommodating Walsh by managing it in his occasional absences , what concrete positive evidence there is as to the status of Smith and Tighe requires the conclusion that they are supervisors within the purview of the Act. Thus the evidence is uncontradicted that Saccocia was hired by Smith, and by him was assigned his initial list of customers and given instructions as to his duties and responsibilities as a retail driver for Dairylee. Also according to the uncontradicted testimony of Saccocia, Tighe also hired at least one retail route driver. The evidence also indicates that driver-salesmen meetings are held on a fairly regular quarterly basis and they are presided over by Smith or Tighe. Sometimes the meetings are held in the homes of Smith or Tighe. Saccocia testified that any problems he encountered calling for management advice would first be taken up with his foreman and if the problem remained unresolved would then be taken up with Smith or Tighe. The retail driver-salesmen start out with a list of customers which apparently either enlarges or diminishes dependent on the enterprise of the driver and the development of the general area in which he circulates . At the quarterly meetings presided over by Smith or Tighe the route salesmen are encouraged to increase their sales but apparently there are two important limitations on their sales efforts : ( 1) There appears to be a legal prohibition against sales below cost , and (2 ) drivers are prohibited from solicit- ing customers of Dairylee's subdealers. The evidence in the instant case involves Dairylee's relations with a subdealer known as Kramer Dairy with headquarters in South Weymouth and retail routes running into an area in Brockton known as The Development. Among the issues in the instant case is whether or not Dairylee interfered with the organizational rights of employees by the February 5, 1964 , announcement of certain employee benefits. The evidence indicates that the Company operates on a calendar year basis and at the conclusion of the closing of its books of account in 1962 and 1963 announced certain benefits for employees . Early in 1963 an additional paid holi- day appears to have been granted and the evidence indicates that at a driver-salesmen meeting held in August or September 1963 and presided over by Tighe, representatives of an insurance company were present at the Company's invitation for the purpose of explaining to employees certain benefits available through their company. There has been in effect at all times a hospitalization and medical insurance program. The premiums on this were paid by the employees themselves prior to February 5, 1964, although the Company furnished the bookkeeping involved in the deduction of premiums from paycheck and payment over to the insurer. There also, appears to have been in effect at all times a vacation program , as evidenced by the fact that on Saccocia's separation he was given 2 weeks' vacation pay in addition to other moneys. In any event the case draws in issue the allegations that the February 5, 1964 , bulletin board announcement of an additional paid holiday, hospitalization insurance at no cost to the employee, and three sets of uniforms furnished and cleaned by the Company constituted interference , restraint, and coercion. The principal issue in the instant proceeding relates to the termination of Gary Saccocia on February 7, 1964. The General Counsel contends that he was discharged on that date in reprisal for his activities on behalf of the Union ; the Respondent's answer on the other hand asserts that Saccocia voluntarily resigned on that date when he was charged with violation of the rule against soliciting Kramer's customers. Saccocia has been a member of the Union for some 6 years but, apparently, on a withdrawal card following his military service and employment at Dairylee. Some- time in December 1963, Saccocia talked to his fellow drivers about the possibility of union representation ; at that time he also talked about this to Smith and Tighe, men- tioning to Smith certain benefits including uniforms, insurance , and sick leave that were afforded under the Union's contract with another dairy. Also, about this time Saccocia talked to Union Business Agent George O'Donnell . He appears to have been accompanied by employee John Yannone , a route salesman and sometime fore- man. Sometime prior to February 7, 1964, Saccocia arranged with O'Donnell to schedule a union organizational meeting for Dairylee employees at the Russell Club in Brockton in mid-afternoon of February 10, at an hour when the drivers would have completed their routes and finished their accounting for the day. On the afternoon of February 6, Saccocia appears to have had some conversation concerning union benefits with Tighe and thereafter a heated exchange with Walsh. There is a sharp DAIRYLEE, INC. 833 conflict in the evidence as to the content of the conversation between Saccocia and Walsh on that occasion and this is more fully discussed below. In any event, as noted above, Saccocia's employment was terminated the following day. B. The termination of Gary Saccocia Saccocia was hired January 2, 1962, as driver-salesman for a retail route covering part of the Brockton area. His career as a driver-salesman appeas to have been a relatively stormy one . Marjorie Prater, Dairylee's bookkeeper and office manager for the last 10 years whose testimony I credit in this regard , testified that about a month after Saccocia 's employment a shortage of some $ 150 was discovered in his books. This appears to have been attributable to Saccocia's shortcomings in view of the fact that his predecessor 's books had been taped . At that time the arrangement was made that he would repay Dairylee at the rate of $2 per week. Following this initial shortage there appears to have been no difficulty respecting his accounting for moneys except for a minor discrepancy of some $7 discovered after his separation from employment . The testimony of Walsh, however, indicates that unlike the situa- tion normally to be expected, Saccocia's books consistently showed him entitled to excessive credits in his accounts. In addition to the problem created for Walsh by his inability to fathom Saccocia's books, there appears to have been recurring difficulties between Saccocia and' his foremen . The testimony indicates that he had worked under three foremen, Calabris, Yannone, and Mullane and was scheduled to be transferred to a fourth foreman, Kivi, at the time of his separation. Also according to the testimony of Walsh, which I credit in this regard , Saccocia's antics about the loading platform infuriated employee Phillips who complained of Saccocia's conduct and threatened to injure him. There is also testimony, which I credit, that Saccocia frequently used vile language both to the office help and to the customers and was rebuked several times for this. There appears also to have been an incident concerning damage to Dairylee 's truck while operated by Saccocia for which another driver was responsible ; the other driver paid $25 to Saccocia with the understanding that he would take care of the necessary repairs to Dairylee's truck. The repairs were never made and Saccocia at all times up to the time of the hearing retained the $25 with the insistence that the money was not owed to the Company but was owed to the truck and might as well be held in the trusteeship of Saccocia as anyone else. The evidence on the whole comports with Saccocia 's demeanor in the hearing room as a rather assertive , somewhat belligerent, individual . There is also evidence indicat- ing that Saccocia changed customers on a monthly basis to a weekly basis, sometimes against their will, with the result that at least one customer was lost to Dairylee. This does not appear to have been one of his major difficulties or to have had any substantial effect on his separation. Sometime in November 1963 Saccocia picked up a new customer , a Mrs. Boland. She had previously been a customer of Kramer 's. At that time Kramer complained to Walsh and Saccocia , asked by Walsh to justify his apparent violation of the rule against soliciting Kramer's customers, explained that other customers of his who were neighbors of Mrs. Boland had prevailed upon her to become a customer of Saccocia. According to Saccocia 's testimony, Mrs. Boland had previously quit Kramer on two occasions and had for a time been going to the store for her milk. Saccocia apparently offered her a cut rate , according to the testimony of Prater whom I found credible, but at some time or other he increased her price to the regular rate and thereafter cut it again. Walsh testified that sometime in late November or early December , follow- ing Kramer's complaint on the loss of Mrs. Boland as a customer , Saccocia attributed Mrs. Boland's switch in allegiance to some personal difficulties with Kramer's dairy. In any event the evidence is conclusive that there was an established rule against soliciting Kramer's customers and that in December 1963 a notice was posted in Dairylee's premises to the effect that any driver soliciting Kramer 's customers would be discharged . It also appears from the credited testimony of Prater and Walsh that on February 7 Kramer called again with a complaint of solicitation of his customers and said that it was the same one as had previously been guilty of this offense. In the meantime , on or about January 28 , 1964, Saccocia had the second of his conversations with Smith concerning the Union and the benefits that other dairies had granted under union agreement ; at that time he told Smith of his plans to use the Union as a means to getting comparable benefits from Dairylee . Thereafter, about February 5, the Company announced new employee benefits in the nature of three sets of uniforms , company furnished and cleaned , paid medical insurance, and an additional paid holiday , Washington's birthday. On February 6, the day following the announcement of the new benefits, Saccocia had a conversation in Dairylee's plant with Tighe and Yannone . In the course of this conversation, according to the testi- 7 70-076-65-vol. 149--54 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony of Saccocia, he said to Tighe that the-new benefits were due to the employee interest in the Union . At some point in this conversation Walsh came on the. scene and had a stormy disagreement with Saccocia . According to Saccocia , Walsh said that he had heard enough of the Union and that Saccocia was pretty sneaky in his organizational efforts; calling Saccocia a vile name, Walsh denied that he would be discharged for union activity but asserted that .he would be around for a long time. Walsh admits calling Saccocia the foul name in question , asserts that he wag incensed upon overhearing Saccocia grossly exaggerating the profit margin enjoyed by Walsh on the dealer's efforts. The following day, February 7, 1964, was the day of Saccocia's separation, from the Company and there is substantial conflict 'in the testimony as to the occurrences on that day.' According to Walsh, Kramer called in the morning of that day,- while Saccocia was out on his route , and complained of Saccocia 's soliciting his customers: Walsh's testimony is corroborated by Prater . According to Walsh, after Kramer's call on the morning of February 7, he thought about the situation for a few minutes and then instructed Prater to prepare a statement showing Saccocia as all clear in his books of account. Kramer's complaint , according to Walsh, made ' it necessary that he take action and Walsh's testimony indicates that he expected Saccocia would resign when confronted with the second complaint. Saccocia returned to Dairylee's yard about 2 p:m: on February 7, turned his cash in, and heard that Walsh wanted to see him in his 'office. ' Prater 'had already started auditing Saccocia's books when he arrived.- According to Saccocia's account of the conversation in Walsh's office, Walsh appologized for his intemperate talk of the preceding day and told Saccocia that he"thought they had better part company. According to Saccocia they ' had found him $38 short in his accounts . Later this was reconciled.' Walsh at some time--presented him with a'statement " (in evidence as General Counsel's Exhibit *No. 2) 'dated February 7 and asserting that Saccocia voluntarily; left' Daiiylee's employment as of that date with a clean reco rd.' This was designed to be'signed by Saccocia' and witnessedby Walsh 'and Prater .' According to Saccocia he was asked to sign this statement early in the afternoon and'ultimately signed,'it' at 7:30 in 'the evening after there had been a complete tape audit of his books. Saccocia asserted that at some point duririg .their discussion of that day Walsh indicated that the statement would be helpful as -a reference to him in seeking other employment: ' , , • ' - -'i' ' , According , to ,Walsh, Saccocia said at an early point in 'their' conversation of that afternoon, "I guess this is it:" In'this regard he.is'in-effect coiroborated 'b'y,Prater who attributed to Saccocia the statement at 'an early point of the `discussion` of that after`nbon "I guess I'm all through." There , is no indication as to when the ' second solicitation by 'Saccocia -of Kramer's customers occurr'ed 'although ' the evidence does indicate that Kramer telephoned his complaint to`Walsh on the morning of Febru- ary 7. Saccocia testified that throughout the entire conversation on the afternoon-and evening of February 7 there was no mention of Kramer's name. On her' cross- examination Prater testified that she c`ould not recall hearing anything 'about,the morning complaint from Kramer during the part of the afternoon conversation which; according to her testimony was substantial ; she heard between Walsh and Saccocia in'tfie office. Saccocia denied that he quit, General Counsel 's Exhibit No. 2 to the contrary not- withstanding. I interpret the accounts of the occurrences of the raftemoon of Febru- ary 7 as establishing 'a discharge' of'Saccocia. I cannot believe that Saccocia would voluntarily resign his employment . Such a course of conduct would be completely inconsistent with the clear indications of bis -determination to'get the Union in and'to promote his own commissioned earnings with ' Respondent.' His continued interest in the organizational situation is demonstrated ' by' the ' fact that he, appeared at, the Russell Club in Brockton' for the union meeting 'scheduled- on February 10 and, when no driver-salesmen employed . by Dair'ylee attended ' the meeting; Sadcocia 'went to Dairylee's premises and observed the drivers enjoying ' unprecedented largesse in the nature of free sandwiches and beer , benefits which had been previously granted only on'the occasion's of meetings 'and never before 'on'Respondent's premises. In reaching the conclusion that Saccocia did not quit but, instead, was discharged, I attach greater significance to the , words and conduct of the interested participants than I do to the wording of the . document in evidence as General Counsel 's Exhibit No. 2 which,`' as'noted above, recites a voluntary departure from employment . I am not urged that any ,considerations ' of parol evidence 'rules preclude' my reliance on the surrounding facts and circumstances and, indeed , where,the issue is whether there was an agreement, as distinguished from what are the term's of an',admitted agreement, the parol evidence rule would'not preclude resort to surrounding indicia of the realities dehors the four 'corners of the writing . See Am. ,Jur., Evidence §`091 * Jones; DAIRYLEE, INC. 835 Evidence § 466, citing inter alia Thomas v. Barnes, 156 Mass. 581, 31 N.E. 683. I conclude that Walsh's statement opening the February 7 interview in the office to the effect that they had better part company plainly amounted to a discharge. There is testimony from Prater and Walsh which is undenied by Saccocia and credited by me, indicating that after the termination of events at the dairy on the afternoon and early evening of February 7, Saccocia, while still in the dairy, tele- phoned customers and said that he was not employed as a Dairylee driver anymore and urging them to stop taking Dairylee products. Neither account attributes to him the use of words indicative of a voluntary quitting and the urge to boycott is as con- sistent with discharge as with resignation. 1 find the realities constituted a discharge rather than a quit. Having arrived at the determination that Saccocia was discharged rather than quit his employment, there remains the question as to whether he was discharged in reprisal for his union activities. I conclude that he was discharged because of his leadership in advocating the Union and not because of his violation of the rule against soliciting Kramer's customers. In this regard I rely primarily on the clear indications of all the testimony that there was no discussion of the second Kramer incident at any time on February 7 during the termination conference. If the discharge were really based upon the solicitation of Kramer's customers I believe it inevitable that Saccocia would have been confronted with the charge. I reach this conclusion even though there are indications that Walsh believes Saccocia had given somewhat of a "cock-and-bull" story when charged with the earlier solicitation. I am also impelled to this conclusion by virtue of my inability to credit Walsh's flat denial that he had absolutely no knowledge of union activity until subsequent to the time Saccocia was terminated. In this area I credit Saccocia's account of his conver- sation with Smith and Tighe in which they plainly indicated knowledge of his union activity. It seems to me unlikely that they would fail to transmit their intelligence to Walsh. Also 1 credit Saccocia's testimony summarized above and attributing to Walsh the accusations of sneaky union organizational efforts made on the afternoon of February 6. I credit also Saccocia's account, including that portion contained in amendments to the transcript which establish that Walsh overheard the unionization argument between Saccocia and Tighe before Walsh's entrance on the scene. Respondent has painted too black a picture of Saccocia to be convincing. If he were guilty of the numerous derelictions and defects attributed to him by Walsh and Prater, he probably was deserving of discharge. However, the evidence here indicates that he was discharged only after he had commenced organizational efforts and Respondent not only knew of his efforts but had condemned them strongly and, as hereinafter indicated, had taken steps amounting to interference as a means of deter- ring them. Furthermore there appears to have been condonation or at least toleration of the many shortcomings attributed to Saccocia for the 2 years of his employment up until his activities in the months immediately prior to his discharge. Any shortages in his accounts were limited to his initial weeks of work and were repaid as pointed out above in installments . The vile language concededly was eliminated insofar as Prater was concerned. The testimony concerning difficulties with his foreman is seen to be insignificant in view of Prater's concession on cross-examination that Saccocia may have been kept in the same group of drivers at all times with only the foremen being changed for reasons apparently unrelated to Saccocia's alleged intransigence. In short, viewing all the alleged deficiencies of Saccocia, it appears that they were either eliminated, tolerated , or insubstantial and clearly were not alluded to at the time of his separation. Viewing the evidence in its totality, I find it to preponderate in favor of the conclu- sion that Saccocia was discharged because of his activity in support of the campaign to bring the Union in to Dairylee. C. Interference, restraint, and coercion The acts of interence, restraint, and coercion alleged in the complaint relate to the February 5 posting of increased employee benefits and to the conversation between Tighe and Saccocia on the afternoon of February 6 and the ensuing conversation between Walsh and Saccocia on that same afternoon. 1. Announcement of benefits With respect to the February 5 announcement of new benefits, the evidence indicates that the announcement was made shortly after Saccocia's talk with Smith about the benefits available under the Union's contract with another dairy. On the other hand, 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there is uncontradicted testimony from Walsh and Prater that it was a regular practice of recent years to grant improvements and benefits following the closing of the Com- pany's books at the end of the calendar year. Walsh testified, and his testimony is not contradicted, that an improvement in employee benefits had been announced each year since 1961 following the closing of the books. Also the evidence indicates that the subject matter of group insurance and uniforms had been frequently discussed in employee meetings. Apparently the Company had under consideration long prior to the advent of the Union some improvement in this regard, as appears from the sponsorship of these subjects by Smith and Tighe and the fact that insurance company representatives attended at least one of the meetings. At least until the Union acquired a majority and asked recognition the Respondent was under no obligation to refrain from continuance of its normal practice. I find that the General Counsel has not sustained the burden of establishing that the February 5 announcement of benefits amounted to interference, restraint, and coercion of employees in their organizational effort. 2. Interrogation The complaint alleges that Tighe interrogated employees concerning union activities on February 6, 1964. Saccocia testified that on the afternoon of February 6, Tighe told him that Walsh wanted to know why the employees were unhappy. I credit Saccocia's testimony and I find that Tighe did put this question to Saccocia and Yannone. In view of the fact that Saccocia had previously taken the initiative in talking to Smith and Tighe about his organizational efforts and the benefits he pro- posed to seek through the Union's assistance, I cannot find any interference, restraint, or coercion in this question by Tighe. There was no attempt to discover who the union adherents were in addition to Saccocia and Yannone and it would not appear that this exchange between Tighe and the two employees was anything other than an innocuous passing the time of day. 3. Threats to close the plant Reference has been made above to the talk among Tighe, Saccocia, and Yannone in the plant on the afternoon of February 6. Saccocia's account of that discussion is to the effect that after asking Saccocia why employees were unhappy, the ensuing reference to Walsh's recent announcement of new benefits and Saccocia's rejoinder that the management's action had been dictated by the union activity in the plant, Tighe said that Walsh would lock the doors before letting the Union into the plant. Walsh testified that he never threatened to close the plant nor did he authorize anyone else to issue such a threat. Tighe did not testify. In the absence of a denial from Tighe who was not called to the stand, I credit Saccocia's account of this conversation which would include the utterance by Tighe that Walsh would close the plant before letting a union in. As discussed above, I find that Tighe was a supervisor. In view of the provisions of Section 2(13) of the Act, Walsh's testimony to the effect that he did not authorize anyone to threaten the closing of the plant is not sufficient to immunize Dairylee from the responsibility for Tighe's utterance. I find and conclude that Dairylee through Tighe threatened to close the plant rather than recognize the Union and thereby engaged in interference, restraint, and coercion within the scope of Section 8 (a) (1) of the Act. 4. Berating and maligning of Saccocia The evidence more fully outlined above establishes that during the course of the heated discussion between Walsh and Saccocia following that among Saccocia, Yannone, and Tighe, on the afternoon of February 6, angry words were exchanged between Walsh and Saccocia in the course of which Walsh, according to his own concession , called Saccocia a foul name. Saccocia's account is that while he and Tighe were together, Walsh joined them and said, "It's pretty sneaky of you trying to organize these guys and win them over" and that he was "pretty small and a no good bastard." According to Saccocia's account, Walsh's reference to him as "sneaky" and "a no good bastard" plainly had reference to his organizational efforts on behalf of the Union. I credit Saccocia's account of this conversation and find that in the course of it Walsh in a fit of anger called Saccocia "sneaky" and "a no good bastard" because of his union organizational efforts. This vilification of Saccocia plainly constituted inter- ference with the exercise of the rights guaranteed in Section 7 of the Act and con- stituted an unfair labor practice defined in Section 8 (a) (1) of the Act. DAIRYLEE, INC. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 837 The unfair labor practices of the Respondent Employer set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY In view of my finding above that Respondent discriminated with respect to the employment of Gary Saccocia in reprisal for his activities on behalf of the Union, I shall recommend that Respondent be required to offer him immediate and full rein- statement to his former or a substantially equivalent position , without prejudice to his seniority or other rights and privileges , and make him whole for any loss of earnings he may have suffered as a consequence of the unlawful discharge by payment to him of a sum of money equal to that which he normally would have earned as commissions from the date of his discharge to the date of Respondent's offer of reinstatement, less net earnings during such period. The back earnings and interest thereon should be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. In view of the findings set forth above that the Respondent has in several different particulars engaged in acts of interference , restraint, and coercion respecting employees' organizational rights under the Act, and having in mind the variety of these acts of interference and the fact that they occurred in connection with the discriminatory discharge of Saccocia , I shall recommend that Respondent be required to cease and desist from infringing in any manner upon employees ' rights under Section 7 of the Act. On the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Sectioli 2 (6) and (7) of the Act. 2. The Union is a labor organization within the purview of Section 2(5) of the Act: 3. By threatening employees with the closing of the plant in reprisal for union organization and by vilification and calling derogatory names to a leader of organi- zational efforts on behalf of the Union, the Respondent has engaged in unfair labor practices defined in Section 8 (a) (1) of the Act. 4. By discriminating with respect to the tenure of employment of Gary Saccocia, thereby discouraging membership in the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 6. Respondent has not engaged in unfair labor practices alleged in the complaint and not specifically found herein to have been committed. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in this case , I recommend that Respondent, Dairylee, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to close the plant in reprisal for union organization , vilifying, disparaging, or calling derogatory names to employees engaged in organizational activity, or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. (b) Encouraging or discouraging membership in the Union, or any other labor organization of its employees , by discriminating against employees in any way with respect to hire, tenure, or any term or condition of employment. 2. Take the following affirmative action which I find necessary and appropriate to effectuate the policies of the Act: (a) Offer to Gary Saccocia immediate and full reinstatement to his former or a substantially equivalent position , without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered as a result of his discharge in the manner set forth in the section of this Decision entitled "The Remedy." 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (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 determine the amount of backpay due under the terms of this Recommended Order. (c) Post at its plant in West Bridgewater, Massachusetts, copies of the attached notice marked "Appendix A ." 1 Copies of said notice, to be furnished by the Regional Director for Region 1, shall , after being duly signed by Respondent 's authorized representative, be posted by it 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 Respondent to insure that said notices are not altered , defaced, or covered by other material. (d) Notify the Regional Director , in writing, within 20 days from the date of this Decision and Recommended Order, what steps it has taken to comply herewith.2 I recommend that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 1 In the event that this Recommended Order be adopted by the Board , the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order " 2 In the event that this Recommended Order be 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 A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discharge or otherwise discriminate against employees with respect to any term or condition of employment because of their participation in organizational activities on behalf of Local 653, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , or any other labor organization. WE WILL NOT threaten employees with the closing of the plant, nor will we call them names of derogatory terms on account of their participation in union organizational efforts. WE WILL offer immediate and full reinstatement to Gary Saccocia , without prejudice to his seniority or other rights and privileges , and make him whole for loss of earnings suffered as a result of his discharge. All our employees are free to become or remain members of the above-named Union, or any other abor organization , except insofar as their rights in the latter respect may be affected by an agreement lawfully entered into under the provisions of Section 8 (a) (3) of the Act. DAIRYLEE, INC., Employer. Dated--------- ---------- By------------------------------------------- (Representative ) (Title) 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 Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 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, 24 School Street, Boston , Massachusetts, Telephone No. 523-8100, if they have any question concerning this notice or compliance with its provisions.