Swift & Co.

SWIFT & COMPANr 1233 (e) Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps Respondent has taken to comply herewith .6 13 In the event that 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 the 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, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in the American Federation of Casino and Gaming Employees, or any other labor organization of our employ- ees, by discharging employees for engaging in protected concerted activity, or in any other manner discriminating against any individual in regard to- his hire, tenure of employment, or any term or condition of employment except as authorized in Section 8(a)(3) of the Act. WE WILL offer to Frank Yockmen immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges , and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. WE WILL NOT interrogate our employees concerning their union activities in a manner constituting interference, restraint, or coercion in violation of Sec- tion 8 (a)(1) of the Act. WE WILL NOT create the impression of surveillance of our employees with respect to their union activities. WE WILL NOT in any other manner interfere with, restraiii, or coerce employ- ees in the exercise of their right to self-organization , to form labor organiza- tions, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. HOTEL CONQUISTADOR, INC., d/b/a HOTEL TROPICANA, 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 applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing,and Service Act, 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. If employees have any question concerning this , notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 450 Golden Gate Avenue, Box 36047, San Francisco, 'California 94102, Telephone" 556-2043. Swift & Company and Clyde C. Clements. Case 11-CA-2755. June 24, 1966 DECISION AND' ORDER On November 26, 1965, Trial Examiner William Seagle issued his' Decision in the above-entitled proceeding, finding that -the Respond- ent had engaged in certain unfair labor practices and recommending 159 NLRB No. 88. 243-084-67-vo l 159-79 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and•Members Fanning and Jenkins]. 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, and recommendations of the Trial Examiner, as modified herein. 1. In adopting the Trial Examiner's findings, conclusions, and recommendations, we do not rely on his finding that Plant Superin- tendent Lavender testified that he told Plant Manager Jackson that "Clements was working out like we thought he would . . . ." After the record in this case was transferred to the Board, Respondent's unopposed motion to correct the record by insertion of the word "not" between the words "was"' and "working" in the above testi- mony was granted. Although this correction obviously requires rejection of -any inference based, on this testimony that Respondent's officials were admittedly satisfied with Clements' work, the change in testimony does not require reversal of the Trial Examiner's ulti- mate finding that Clements was unlawfully discharged. Lavender admitted that he never reprimanded Clements about, or warned him that Respondent was dissatisfied with, his work. Moreover, although Lavender -testified that he often went over Clements' work with him to point out mistakes, Respondent introduced only three of the daily receiving records kept by Clements to support its contention that Clements made numerous mistakes and was therefore an unsatis- factory, 'employee. One of the records, dated February 1, 1965, showed that Clements had marked 24 premium hinds and 4 choice hinds as received, whereas Respondent contended that there were actually 28 premium hinds in the shipment. However, it offered no record evidence to support its version of the contents of the disputed shipment. Another record, dated January 25, 1965, contained no error other than one corrected in Clements' own handwriting in the normal course of his work. The third such record offered was for 'The Respondent has requested oral argument . This request is hereby denied because the record, the exceptions , and the brief adequately present the issues and the positions of the parties. SWIFT & COMPANY 1235 the date of-January 17, 1965, yet Clements commenced work on the 18th of that month. Respondent offered no other records to prove its assertion that Clements was an unsatisfactory employee because he made numerous mistakes.2 In view of the above, we find that Respondent has not sustained its affirmative defense that Clements performed his assigned duties in an incompetent manner, and was, discharged therefor .3 1 2. The General Counsel's case that Clements was discharged for• discriminatory reasons depends essentially though not entirely on the testimony of Clements himself. In certain important respects,, such testimony was contradicted by testimony of Lavender and' Jackson. The Trial Examiner, however, credited Clements and dis- credited the testimony of Lavender and Jackson' to the extent incon- sistent therewith. He did so in part on the basis of demeanor evidence, setting forth his opinion of the reliability of the testimony of these witnesses, an opinion which was clearly formed in substan- tial part through observation of the demeanor of the witnesses while testifying before him. The Respondent takes exception to the Trial Examiner's credi- bility resolutions. We find these exceptions to be without merit. The Board attaches great weight to a Trial Examiner's credibility resolutions based on demeanor evidence, inasmuch as it is the Trial Examiner who has observed the witnesses.' There is nothing in the record herein' to indicate that the Trial Examiner formed erroneous conclusions concerning the credibility of Clements as compared to Lavender and Jackson. Indeed, apart from demeanor evidence, there is, as the Trial Examiner points out, substantial affirmative evidence, as well as inferential- evidence drawn from some of Laven- der's own testimony, to support his credibility resolutions. More- over, it is clear that the testimony of Melvin Shell directly corrobo- rates Clements' testimony that Lavender, notwithstanding his denial, did come to the warehouse where Shell. and Clements were working on the afternoon of March 23, 1965, and did talk to Clements at this 2 Respondent contends that the Trial Examiner refused to allow it to produce other receiving records which would have shown that Clements was an unsatisfactory employee. This contention is without merit. The Trial Examiner ruled that he would accept into evidence all records kept by Clements that showed positive errors , but that he would not accept records which contained no mistakes or errors. Clearly, Respondent was not precluded from introducing records which contained errors. In these circumstances, Re-' spondent's failure to introduce additional records justifies the inference which we draw that the daily receiving records prepared by Clements in the normal course of his em- ployment would not have supported Respondent 's assertion that Clements performed such work in an unsatisfactory manner. a For the reasons stated by the Trial Examiner, we find that Respondent has also failed to sustain its other affirmative defenses. 4 Standard Dry Wall Pi oducts, Inc, 91 NLRB 544, enfd . in 188 F.2d 362. 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time.5 In view of the foregoing, there is no basis for overturning the Trial Examiner's credibility resolutions. We therefore accept the Trial Examiner's credibility findings and his findings of fact based thereon, and, in agreement with him, conclude that Respond- ent discharged Clements because of his union activity in violation of Section 8(a) (3) and (1) of the Act. [The Board adopted the Trial Examiner's Recommended Order, with the following modifications: [1. Add the following as paragraph 2(b), the present paragraph 2(b) and those subsequent thereto being consecutively relettered: 1"(b) 'Notify the above-named employee, if presently serving in the Armed Forces of the United States of his right to full reinstate- ment upon application' in accordance with the Selective Service Act and the Universal 'Military Training and Service Act, as amended, after discharge 'from the Armed Forces." [2. The address and telephone number for Region 11, appearing at the bottom of the notice attached to the Trial Examiner's Deci- sion, is amended to read : "1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina 27101, Telephone 723- 2911."] e The Trial Examiner misread Shell 's testimony to the extent that he found that Shell testified that another employee Hall was present . Though Shell testified that he and Hall worked together 'in the warehouse , he was not asked specifically whether Hall was present at the time in question . Though Hall denied being present at the time because lie was not at work that day, Respondent 's records show that he was at work and was paid for work on that day. As Hall's testimony was vague and confused and In substantial part contradicted his own statement given to a Board agent , which statement was entered on the record without objection , we find that the Trial Examiner did not err in discredit- ing his testimony. TRIAL EXAMINER'S DECISION STATEMENT OF ,THE CASE Trial Examiner William Seagle heard this case at Greenville , South Carolina, on October 26, 1965, upon a charge filed June 21 , 1965, an amended charge filed July 19, 1965, and a complaint 'issued on August 18, 1965, alleging that the Respondent had discharged Clyde C. Clements, one of -its employees, in violation of Section 8 (a) (3) and (1) of the Act. `Upon the evidence adduced at'the hearing and the posthearing brief filed by coun- sel for the Respondent and in view of my observation of the demeanor of the wit- nesses, I hereby make the following findings of fact: 1. THE RESPONDENT The Respondent, Swift and Company, is an Illinois corporation engaged in the production and distribution of meat products. Among its facilities is a sales unit maintained by the corporation in Greenville , South Carolina. The manager of the Greenville sales unit is Mark P. Jackson and the superintendent thereof is Ray E. Lavender. The Greenville sales unit is the only facility of the Respondent involved in the present proceeding. During the past 12 months , which is a representative period, the Respondent received from points directly outside the State of South Carolina raw materials valued in excess of $50,000. SWIFT & COMPANY 1237 II. THE LABOR ORGANIZATION INVOLVED Local 509, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. IIL THE UNFAIR LABOR PRACTICES INVOLVED A. The evidence Clyde C. Clements, whose discriminatory discharge is alleged in the complaint, was employed by the Respondent on January 18, 1965, as the only receiving clerk in the Greenville sales unit, after he had been interviewed by both Jackson and Lavender. After interviewing Clements, Jackson came out of his office and remarked to Lavender : "He will make us a good boy, let's hire him." Indeed, the new receiving clerk must have seemed an unusually good prospect , for he was not only a high school graduate but he had also worked for various trucking companies and he had handled freight for a railroad. After he became receiving clerk, Laven- der reported to Jackson that Clements "was working out like we thought that he would . . In fact, Lavender told Clements himself that he was satisfied with his work. Whenever Clements would ask Lavender how he was doing, the latter would assure Clements "you are doing me a good job, if you wasn 't, we wouldn't keep you out here." It seems that early in March 1965 , the small number of employees at the Green- ville sales unit I began discussing during their lunch hour the desirability of union organization , but it was Clements who contacted Local 509 of the Teamsters by telephone and spoke a number of times to a Mr. Fisher. Clements told Fisher that the Swift employees were talking about organizing but did not know how to go about it. Fisher told Clements to ascertain how many employees would sign pledge cards. Clements attempted to do so but he never got to the point of carrying pledge cards into the plant. " He did speak, however, to virtually all the employees . Either on Monday, March 22, or Tuesday, March 23, one of the employees-it was either Doug Crain or David Smith-came to Jackson and, as the latter put it, told him that Clements "had said something about the union." On Tuesday, March 23, Clements ceased to be an employee of Swift and Company. Asked to state what reason had been given to him for his discharge , Clements answered the question by testifying: "Organizing a labor union." These four words epitomized a conversation which Clements had had with Laven- der that very afternoon Clements together with two other employees, who were warehousemen and whose names were Ted Hall and Melvin Shell, were stacking lard in the rear of the warehouse by way of getting ready to wind up the work of the day when Lavender, accompanied by Jackson, approached them and Lavender remarked to Clements : "I have heard that you have been holding meetings back here in the back trying to convince these boys to and talk them into joining a labor union." As Lavender addressed this remark to Clements, Jackson turned and walked back to his office as if he had just come to hear what Lavender would say. In other words , Jackson himself said nothing. As Clements testified. Q. Did Mr. Jackson ever say anything? A He didn't open his mouth, no sir. By way of replying to Lavender's accusation, Clements denied that he had been holding meetings on the premises , and asked Lavender who had told him that he was holding meetings. lhis question Lavender would not answer but he did tell Clements that organizing a labor union in the plant or even talking about a union was ground for dismissal. Some time between 6 and 7 p.m. that same day Clements had a second conversa- tion with Lavender. It was then dark, and everyone else had already left except the plant bookkeeper or office manager, who was in the office . Lavender and the book- keeper had been going over invoices in the office . During this time Clements had been washing up but as he was leaving the building he encountered Lavender, who asked him whether he would be coming in to work on the morrow . According to the testimony of Clements, he replied to Lavender's question by remarking : "I sup- pose so, why ?" According to the testimony of. Lavender himself, Clements asked 1 The total employee complement at the Greenville sales unit at this time was about 20 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him: "Do I still have a job?" But both Clements and Lavender agreed that Laven- der then told Clements that he had instructions from Jackson to let him work the next day, which was the end of the payroll week, and then let him go, namely, dis- charge him. Thereupon Clements, who became very angry, declared that he did not care to give his sweat and blood "for one more day's work for somebody like Mr. Jackson," and declared that he was quitting. Either Clements or Lavender then suggested that since the bookkeeper was still in the office, they should go back there so that Clements could be paid off, and not have to come back on Friday, which was payday in the plant. Clements and Lavender then proceeded to the office, and while the bookkeeper was figuring Clements' time, the latter remarked to Lavender that the word "union" just scared the st out of him and Mr. Jackson. Clements also reminded Laven- der that there was "a law against firing a person for trying to organize a labor union." Lavender replied that he had heard of that law but an employee had to be employed for more than •90 days before anything could be done about it. With this, they parted. Jackson, who, with apparent candor, had admitted that just before Clements left he had heard of his union activity from a fellow-employee, proved actually to be the most evasive of witnesses. Indeed, even in the act of seeming to be candid, he attempted to evade supplying the name of this employee, and it was only under pressure that he finally gave the names of two employees, either one of whom, he declared, could have brought him the news about Clements. Throughout his testi- mony Jackson also displayed an almost incredible degree of vagueness about the sequence and timing of events, and an equally incredible degree of ability to deny what just a moment before he had admitted. Thus, when asked whether he had been present during the first 5 o'clock conversa- tion between Lavender and Clements, he both denied it and declared that he had been in and out of the plant all afternoon on March 23. Then he seemed to admit that he must have returned to the plant between 4 and 6 p.m., in which case he must have been present during the 5 o'clock conversation between Lavender and Clements. Actually, Jackson seemed to think that he saw Clements in the hallway between 6 and 7 p.m. when he was leaving the plant for good, although this is con- trary to the testimony both of Clements and Lavender and it is indeed most improbable. Lavender, who, as a witness, occasionally let the truth slip out, unwittingly, also denied that he saw or talked to Clements at 5 o'clock on March 23. He admitted only to the conversation with Clements between 6 and 7 p.m., in which he told Clements that he would be discharged the next day when the latter asked him whether he still had a job. Lavender denied only that he attributed this action to Clements' union activity. Ted Hall was called as a witness by the General Counsel to corroborate Clements' testimony that Lavender, in the presence of Jackson, talked to him at about 5 o'clock in the afternoon of March 23. Hall was a part-time Negro laborer employed by the Respondent who had been laid off after Clements had been dis- charged but who had been recalled about September 1. After the discharge of Clements, Hall had been interviewed by an examiner in the Regional Office of the Board who wrote down what Hall had told him. As Hall could neither read nor write, he had not signed the statement prepared by the examiner. As a witness, Hall now denied however, that he had overheard any conversation between Clem- ents and Lavender on March 23. Indeed, he swore that he had been off that day. This testimony was definitely shown to be false when the plant timebook was pro- duced and it showed that he had worked from 8 a.m. to 5 p.m. that day. There can be no doubt that Hall was in the plant when Lavender spoke to Clements for the first time that day, and that Hall at least saw them engaged in conversation. Melvin Shell. the other warehouseman, who at the time was stacking lard with Clem- ents and Hall, and who was also called as a witness by the General Counsel, admitted that he was working for a while with Clements and Hall at about 5 p.m. rn March 23. and that he saw Lavender talk to Clements, although he left when they started talking and did not overhear their conversation. It is the contention of the Respondent that it was the policy of the Company to observe the requirement of the National Labor Relations Act, and that the con- structive discharge of Clements had nothing to do with his union activity. Accord- ing to Jackson, he instructed Lavender on Tuesday, March 23, to let Clements go the following day because the volume of business was slackening off and Lavender had come to him to complain that Clements' work was unsatisfactory. SWIFT & COMPANY 1239 So far as the alleged business decline is concerned, which Jackson attributed to the fact that a greater volume of Swift products were going directly to the larger stores rather than passing first through the Greenville sales unit, he testified that Clements was not its only casualty. Ted Hall was laid off, as already related; the number of trucks was reduced from four to three; one of the truckdrivers was laid off; and two of the sales routes were consolidated when one of the salesmen, who came from Columbia, South Carolina, returned there. Clements, although he was the only receiving clerk, was not replaced but his work was parceled out among others, being done by Lavender and another employee, whose name was either Foster or Walters.2 So far as Clements' character as an employee is concerned, both Jackson and Lavender undertook to supply quite a number of details. It seems that in the mid- dle of February 1965, Clements, who had'developed the mumps, and who had gone to Murphy, North Carolina, to be treated by an aunt who was a private nurse, did not return to work exactly on the day that Lavender was expecting him. It seems also that on one occasion-Jackson had not the slightest idea when it was-he had received a call from the husband of a creditor to whom Clements owed money, and had to call the latter in to impress on him the importance of paying the debt. It seems, finally, that Clements' work as a receiving clerk was faulty. Jackson testified that Lavender had come to him on a number of occasions-again he could not fix the times of these occasions even approximately-to tell him about errors Clements was making in keeping records. These errors would be revealed in the weekly checks of the invoices which came in after the receiving record had been made. Lavender, who also testified about Clements' supposed errors in keeping records, even complained that in one instance Clements, who had incorrectly entered the item "Hostess Hams" on a receiving record, marked this out in pencil when he caught his own mistake. B. Concluding findings The greatest impression in terrorem can be created by an employer bent on dis- couraging union activity among his employees simply by telling one of them that he is being discharged because of such activity. An employer will indulge in such frankness but rarely, however, because the risk of retribution is too great. Ordi- narily caution overcomes the impulse to strike openly and with the most telling effect. In rare cases, however, some indiscreet or bumbling supervisor may unwit- tingly betray his employer's true motive. Such would seem to be the essential nature of the present case. As the evidence of motive is direct, it is sufficient in itself to support the allegation of discrimina- tion. Indeed such direct evidence, when it is believed, is conclusive. Yet, because of the danger that such evidence may be supplied for the very purpose of making a case which would not exist without it, it should be subjected to the most careful scrutiny. The best way of determining the reliability of the direct evidence would seem to be to see how well it fits in which all the circumstances of the case. In other words, paradoxical as it may seem, the test of the direct evidence in any case becomes the circumstantial evidence in that case. Apart from demeanor, this cucumstantial evidence in the present case leads me to accept the testimony of Clements and to reject the testimony of Jackson and Lavender, insofar as their testimony is inconsistent with his testimony. Although Jackson testified that it was the policy of the Respondent to observe the requirements of the National Labor Relations Act, there is no evidence that the Company ever did anything to make its position clear to its employees. In fact, although Swift and Company had issued a booklet to its employees entitled "Your Job With Swift," Jackson could not recall that there was anything in it about the right to organize. When one of his employees came to tell him that Clements was talking about a union, it is not recorded that he rebuked his inform- ant, and assembled his employees to inform them that he was not interested in such tale-bearing. On the contrary, the decision to discharge the guilty employee followed immediately upon the receipt of the disturbing information. Indeed, the mere fact that one of his employees should hasten to tell Jackson that Clements had said something about a union is in itself a pretty eloquent commentary on what policy the Respondent really followed, so far as union organization was concerned. Jackson's explanation of his decision to terminate Clements' employment 2 Jackson's testimony about the identity of this employee was not very clear. 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD embodies elements that are difficult indeed to understand . Contradictions and even absurdities begin to appear as the explanation is subjected to detailed analysis. If the decision to discharge Clements was made because the volume of meat prod- ucts going through the Greenville sales unit had declined to the point where a receiving clerk was no longer needed, of what relevancy or materiality were Clem- ents' past personal misfortunes, derelictions, and even the alleged unsatisfactory performances of his job-the mumps , the neglect of his debts, which incidentally, seems to have been a common failing of the Greenville sales unit employees, and the few errors which he may have made a month or so previously in keeping his receiving records?' Remarkably enough, although Jackson and Lavender claimed that they discussed Clements' shortcomings as an employee on several occasions prior to making the decision to discharge him, each of them admitted that he had never spoken to Clements himself, or warned him that he was endangering his job. In other words, they kept talking about it to each other but said absolutely nothing to the one person who supposedly was the subject of their concern. The very attempt on Jackson's part to rake up old irritations and alleged shortcomings betrays, moreover, his uneasiness that his primary explanation of a decline in the volume of business would not in itself carry conviction . If the explanation which he offered were true, should not Clements, furthermore, have been merely laid off? To speak in terms of understatement, Jackson's economic explanation of his decision to discharge Clements falls considerably short of complete conviction. The only figure which he cited-from memory only, for he produced no written reports-of the decline in the volume of Swift products going through the Green- ville sales, unit was for the month of August 1965, which was about 5 months after the decision to discharge Clements This figure was, supposedly, 450,000 pounds But what was it at the end of March 1965? Jackson supplied no other figures. Indeed, he finally admitted, although at first he seemed to deny it, that in November 1964, he was considering the enlargement of the cooler of the Green- ville sales unit. Since the cooler is where the meat products are stored, the con- sideration of even the need to enlarge it would hardly be consistent with a decline at that time of the volume of meat products. In any event, Jackson called the direct shipment of meat-products to the larger stores "a trend of the times," which would seem to imply that the trend had begun long before Clements was even hired; and that it would continue long after his departure. But, whatever may be the truth about- the decline of the volume of meat products shipped- to the Greenville sales unit it really is not a sufficient explanation of a decision to dispense with the services of the only ,receiving clerk which the unit boasted. Whatever the volume of products, and whether there were three trucks rather than four, the products had to be received and recorded. It would seem that the job of the receiving clerk would be regarded as essential, as a key job. This is clearly indicated by the fact that the Greenville sales unit has been in sore straits since Clements' departure-so sore indeed that the superintendent of the unit has had to be pressed into service as a part-time receiving clerk. This, certainly, would seem to be a strange state of affairs. Jackson made a great virtue, to be sure, of his failure to replace Clements with a regular, full-time receiving clerk, and of the decline in the total number of employees in the Greenville sales unit But the replacement of Clements would have been fatal, of course, to the explanation offered by Jackson for his dismissal, and the decline in the total number of employ- ees does not necessarily dispose of the nagging question arising from the dismissal of a key employee. Such a question would be better answered by evidence of a severe decline in profits in the Greenville sales unit as a whole rather than by evidence of a decline in volume. The Respondent offered, however, no such evidence. I consider, however, as conclusive Lavender's own testimony concerning his encounter with Clements after closing time on March 23 The crucial question in the case is whether Lavender had already had one conversation with Clements at about 5 o'clock that day and had warned him in that conversation about his union activity That Lavender did have such an earlier conversation with Clements can hardly be doubted, in view of the testimony of Shell alone. That the conversation concerned Clements' union activity is established by Lavender's own testimony concerning the conversation, which he admitted, at closing time, for Lavender testified that Clements asked him: "Do I still have a job?" It is utterly impos- sible to understand why Clements would have asked such a question if something had not happened that day to disturb him and make him fear that the security of his job was in danger. It could not have been, certainly, anything that had hap- pened much earlier in the course of his employment, for, admittedly, neither Jack- son nor Lavender had ever told him that his work was unsatisfactory, or warned SWIFT & COMPANY 1241 him that he might be discharged. Faced with this riddle, Lavender struggled to find'some reason other than the earlier conversation With 'Clements that day. He speculated that Clements (although he was actually in the washroom) must have seen him going over the -invoices with 'the bookkeeper, and jumped--to the con- clusion that they had caught him in mistakes' again. Lavender's speculation must, however, he regarded as nonsensical, for Clements would 'had no reason to be apprehensive about the examination of the 'invoices, since Lavender and the book- keeper went over them.every<week 'He did1have very good reason'to be apprehen- sive, however, if he had had the earlier conversation with Lavender that day, which did raise'the question whether his job was not in danger. Clements himself did'not, to be sure, specifically 'testify that he asked Lavender whether he still had a job. There is, however, no actual inconsistency between the 'testimony of Clements and `Lavender, for the 'question may have been asked by him at a later point in the conversation, and he may have failed to recall it, or mention it. *But it is evident from Clements' testimony alone that both he and Lavender seemed to'have some doubt that Clements would -be coming in to work on the morrow Clements would not have said: "I suppose so, why?" Unless he had been disturbed by something already said to him by Lavender. The mere fact that Lavender himself should have raised the question whether Clements would be coming in to work the next day suggests that he half expected that he would not because of what he had already said to him that day. Moreover, in asking the question, Lavender was going contrary to the instructions of Jackson, who had told him to dismiss Clements the following day. Lavender would not have betrayed the instruction unless 'he had already betrayed the reason 'for -having received it. This reason was, undoubtedly, Clements' union activity. IV. THE REMEDY In view of the serious nature of the violation involved in the discharge of Clyde B Clements, I'shall recommend a broad form of cease and desist order, restraining the Respondent from infringing on any of the rights guaranteed to employees by Section 7 of the Act. To remedy the discharge of Clyde C. Clements, I shall also recommend, by way of affirmative relief, that the Respondent offer to him immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges previously 'enjoyed 'by him, discharging, if necessary, any new employees hired subsequent to the date of his discharge in order to replace him. I shall also recommend that the Respondent make Clyde C. Clements whole for any loss of pay he may have suffered by reason of his dis- charge by payment to him of a sum of money equal to the amount which he would normally have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during the said period. The amount of backpay is to be determined in accordance with the formula pre- scribed in F. W. Woolworth Company, 90 NLRB 289, and interest is to be com- puted on the amount so determined in accordance with Isis Plumbing & Heating Co., Inc., 138 NLRB 716 CONCLUSIONS OF LAW 1. The Respondent, Swift and Company, is an employer engaged in commerce, or in an industry affecting commerce, within the meaning of Section 2(6) and (7) of the Act. 2. Local 509, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3 By interrogating Clyde C Clements, one of its employees, coercively, con- cerning his union activities on March 23, and by constructively discharging him on the same day, the Respondent committed unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and (3) of the Act. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the Respondent, Swift and Company, its officers, agents, successors and assigns shall: 1. Cease and desist from: (a) Interrogating its employees coercively concerning their union activities, or threatening to discharge them for such activities. 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Discouraging membership in Local 509, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its employees, by discharging any of its employees, or in any other manner discriminating against them with respect to their hire or tenure of employ- ment or any term of condition of employment. (c) In any other manner interfering with , restraining , or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action in order to effectuate the policies of the Act: (a) Offer to Clyde C. Clements immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered by reason of the discrimination against him in the manner and to the extent set forth in section IV of this Decision 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 of this Decision. (c) Post at its Greenville, South Carolina, sales unit copies of the attached notice marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for Region 11, shall, after having been duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to assure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith .4 3 In the event that this Recommended Order is 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 is 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.", A In the event that 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 Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES OF OUR GREENVILLE, SOUTH CAROLINA, SALES UNIT 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT coercively interrogate our employees about their union activities. WE WILL NOT threaten to discharge any of our employees for engaging in union activity. WE WILL NOT discourage membership in Local 509, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization of our employees, by discriminating with respect to the hire or tenure of their employment or any term or condition of their employment. WE WILL NOT in any other- manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. - WE WILL offer to Clyde C. Clements immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority AMERICAN PAPER & SUPPLY CO. 1243 or other rights and privileges and make him whole for any loss of pay he may have suffered by reason of our discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining members of any labor organization. SWIFT AND COMPANY, 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 applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina 27101, Telephone 723-2301. American Paper & Supply Company, Container Division and In- ternational Printing Pressmen and Assistants' Union of North America, AFL-CIO. Case 27-CA-1885. June 24, 1966 DECISION AND ORDER On February 28, 1966, Trial Examiner James T. Barker issued his Decision in the above-entitled proceeding, finding that Respond- ent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices, and recommended that the allegations of the complaint pertaining thereto be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and briefs in support thereof. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner, with the following additions and modifications : The Trial Examiner found that the July 20, 1965, announcement by Vice President Hinckley to the employees who had signed union 159 NLRB No. 102.