Animal Foods Co. of Texas, Inc.

ANIMAL FOODS CO. OF TEXAS, INC. 1015 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 he taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 30, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith.14 I recommend dismissal of the allegations of the complaint alleging that Respond- ent discriminatorily laid off three employees on September 14, 1965, in violation of Section 8(a)(3) and (1) of the Act. 11 In the event that this Recommended Order is adopted by the Board , this provision shall he 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 question our employees concerning their activities on behalf of District No. 48, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, and we will not create an impression of surveillance of our employees' union activities. WE WILL NOT grant benefits to our employees as a means of interfering with, restraining, or coercing them in the exercise of their rights guaranteed by the National Labor Relations Act. WE WILL NOT issue warning notices to employees because of their member- ship in, or because of their activities on behalf of, the Union, or any other labor organization WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, or 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. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named Union, or any other labor organization. HARTLAND PLASTICS, DIVISION OF AMERLINE 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Suite 230. 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 272-3866. Animal Foods Co. of Texas, Inc. and General Drivers, Warehouse- men & Helpers Union Local No. 968, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 23-CA-21144. June 23,1966 DECISION AND ORDER On -March 15, 1966, Trial Examiner George A. Downing issued his Decision in the above entitled proceeding. finding that the Respond 159 NLRB No. 97. 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision. 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 Trial Examiner's Decision, the exceptions, and the entire record in the case, and hereby adopts the findings,' conclusions,' and recommen- dations of the Trial Examiner, as modified below. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Delete paragraphs 1(c) and 1(d) and reletter paragraphs 1(e) and 1(f) as 1(c) and 1(d). [2. Delete the third and fourth indented paragraphs from the notice appearing as Appendix B of the Trial Examiner's Decision.] 1 We hereby correct certain minor inadvertent errors appearing in the Trial Examiner's Decision. 2The Trial Examiner concluded that the Respondent violated Section 8 ( a) (1) by soliciting employees to withhold support from the Union by engaging in individual bargain- ing concerning grievances . However, at the hearing the General Counsel denied that any allegation had been made with respect to individual bargaining and, consequently, the Trial Examiner precluded the Respondent from presenting evidence on this point . In view of the General Counsel's statement and the incomplete litigation of this issue , we do not adopt the Trial Examiner's finding of a violation of Section 8(a) (1) in this respect. The Trial Examiner also found that the Respondent had violated Section 8(a) (1) by seeking to induce employees to refrain from supporting the Union by reminding them of past aid and assistance which the Respondent rendered them . On the present record, how- ever, we do not interpret the Respondent's comments concerning past personal favors, inter alia, assistance in the payment of an employee 's traffic fine, as a threat to withhold such favors in the future if the employees voted for a union. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding under Section 10(b) of the National Labor Relations Act was heard before Trial Examiner George A. Downing at Houston, Texas, on Decem- ber 13, 1965, pursuant to due notice. The complaint which was issued on Sep- tember 24, 1965, on a charge dated July 27,1 alleged in substance that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the Act by various specified acts of interference, restraint, and coercion on June 30 and July 6 and by discharging Edward B. Peeler on July 24 because of his union mem- bership and activities. Respondent answered by a letter to the Regional Director dated October 4, denying the unfair labor practices. 1 All events herein occurred in 1965. ANIMAL FOODS CO. OF TEXAS, INC. 1017 Upon the entire record in the case and from my observation of the witnesses, I make the following. FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS AND THE LABOR ORGANIZATION INVOLVED I conclude and find on facts alleged in the complaint and admitted by Respond- ent's representative at the hearing 2 that Respondent, a Texas corporation with its principal place of business at Houston, is engaged in commerce within the meaning of the Act (through direct sales and shipments to extrastate points of products valued at more than $50,000) and that the Charging Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. The issues The issues herein are entirely factual ones, i.e., whether Respondent discharged Edward Peeler because of his union membership and activities or for causes assigned by Respondent, and whether it engaged through Feild, its general manager, in the interrogation of employees, in soliciting or inducing them to withdraw from and to refrain from supporting the Union by engaging in individual bargaining with him, by threatening certain reprisals, and by other similar conduct. There is little conflict in the evidence concerning the facts which are relevant to the issues concerning either the Section 8(a)(1) conduct or Peeler's discharge, and the chief problem herein is one of determining the motivation for the latter. B. Interference, restraint, and coercion Though union activity began among Respondent's employees early in June, there was no evidence that Respondent learned of it until late June, when Feild testified he received word through "almost simultaneous contacts from the labor union and the National Labor Relations Board." Edward Peeler, who had taken a leading part in the activity, testified that he was sent to Feild's office on the morning of June 30 and there in the presence of Charles Knight (Feild's assistant), Feild asked him what he knew about "this union busi- ness." When Peeler replied that he had signed a card, Feild told him that such an act was not "loyalty to the Company" and asked Peeler why the employees thought they needed a union to represent them, why they did not come to him, and what the trouble was. Following a discussion of employees' complaints, Feild inquired who Peeler got his card from and Peeler refused to give the name. Feild pursued the inquiry, asking if the person was there at the time and if Peeler got the card at the plant, and Peeler replied negatively to both questions and told Feild about an earlier meeting of several employees at a beer parlor at which-some of the employ- ees had signed cards. Alex Rivera was one of the employees who attended the beer parlor meeting and who signed a card there. Rivera testified that when he returned to work from his vacation on July 6,3 Feild began calling each of the employees into the main office, one at a time, and that when he went in Feild asked him, "What is this about a union?" When Rivera replied that he was trying "to go union" so that he could make more money/to support his growing family, Feild endeavored to justify the rate he was paying and questioned Rivera further as to where the employees had met and whether they signed cards at the plant. Rivera told Feild about the beer parlor meeting and Feild commented that he could understand how two of the employees (whom he named but who had not signed cards at the beer parlor) might get drunk and sign cards but he thought that Rivera had better sense than 2 Respondent was represented by its General Manager, James P. Feild, who was not an attorney and whose legal experience as claimed at the hearing was limited to watching Perry Mason on television and to representing his Company at the representation hearing. Though Mr. Feild was repeatedly informed of his right to employ counsel and of the advisability of doing so, he chose to continue as his Company's representative through- out the hearing and has filed a brief in its behalf. 8 The evidence showed that all of the Respondent's employees who were entitled to vacations took them at the same time. 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to do so. Feild also brought up the subject of a traffic fine which he had helped Rivera to pay and charged Rivera with having turned against him, despite that favor, because Rivera talked to the Union. Feild himself, called adversely by the General Counsel, admitted that when he got the first information about the Union he began to inquire among the employees if there was any truth to the fact that they were in contact with the Union, but it was difficult for him to do so immediately because the employees were on vacation at the time. He talked with some of them right away, however, asking if they had been contacted by a labor union or were in contact with a labor union. Feild admitted that he ultimately talked to all the employees and that the first thing he endeavored to ascertain was whether or not they had expressed a desire to join a union. Feild explained that the "paper" he received from the Board indicated that a majority of the employees wanted to join a labor union and because that was a source of amazement to him, he was sure that he asked them "What is this all about? What is the deal here?" He admitted that during one of the early con- versations he was informed of the beer parlor meeting and the signing of cards there and that in subsequent conversations with additional employees he asked whether they had signed a card He agreed that all of his conversations were "roughly the same" and testified his purpose was to find out whether the "surprise notice" was correct, whether the employees truly had a desire to belong to a labor union. Since Respondent contends in its brief that its defense to the 8(a)(1) allegations was established by certain affidavits attached to its answer because the General Counsel failed to refute those affidavits by calling the affiants as his own witnesses,4 I review briefly what the record shows. Respondent's answer admitted the allegation of the complaint that Feild interro- gated employees concerning their union affiliation, activities, and desires, but denied all other allegations as fictional. Attached were affidavits of Supervisors Knight, Daniel, and Elmer Ray, affidavits signed by five employees, and unsigned affidavits of two other employees. The affidavits of the employees (except the unsigned affidavit of Feild's secretary, Sue Gatlin) were phrased in identical language save in the specification of the job held and of the persons in whose presence Feild interrogated -each. In material part each affidavit averred that Feild carefully explained to the affiant Section 7 of the National Labor Relations Act, which was quoted, and each continued as follows: He has interrogated me on one occasion concerning my union affiliation, activities, or desires. On this occasion he did not attempt by word, deed, or inference to interfere with, restrain or coerce me to either join or refrain from joining a union. Mr. Feild told me frankly and openly that I had a legal right to join a union of my choice and that neither he, nor anyone else with the company, had any right to attempt to influence me one way or the other, and that whatever I did would not affect my standing with the Com- pany in any way. The affidavits of the supervisors and the unsigned affidavit of Feild's secretary attested to their presence during a specified number of the interviews and described Feild's interrogation in terms which accorded" with those quoted above from the employee affidavits. The affidavits included none from Edward Peeler and Alex Rivera, whose testi- mony, set forth above, was not denied by Feild as a witness. To the- extent that * As might be expected in a situation where a respondent is represented by a layman, many of the contentions which were made were just as wide of the mark as the fore- going, and in some instances were preposterous. Two examples were the following: (1) Because the charge was signed by a union business representative who did not appear and testify as a witness against it, Respondent was not confronted with the witnesses against it as required by the Constitution of the United States. (2) The Issue of Respondent's un- lawful conduct was prejudged because the Trial Examiner and the General Counsel's representative are both employees of the National Labor Relations Board, and because the Regional Director of the Board Informed Respondent, upon the issuance of the com- plaint, that he had determined that Respondent had engaged in unfair labor practices, it was impossible for Respondent to receive a fair hearing. Despite repeated attempts by me during the hearing to disabuse Feild's mind on the latter score, the contention is re- newed in Respondent's brief. ANIMAL FOODS CO. OF TEXAS, INC. 1019 statements made by Feild while cross-examining them may be regarded as con- tradictory of their testimony , I credit Peeler and Rivera. I therefore conclude and find on the basis of the testimony of Peeler and Rivera and of Feild's admissions of the extent of his interrogations , that Respondent engaged in interference, restraint, and coercion of employees in the exercise of their Section 7 rights by the following conduct: (a) By interrogating employees concerning their union affiliation , activities, and desires, concerning the signing of union authorization cards, and concerning the union activities of other employees. (b) By indicating surveillance of union activities by informing employees of the identity of others who were engaged in union activities. (c) By soliciting employees to withhold their support from the ' Union by engaging in individual bargaining with Respondent concerning their complaints. (d) By seeking to induce employees to refrain from supporting the Union by reminding them of past aid and assistance which Respondent rendered them. C. The discharge of Edward B. Peeler Peeler was employed as a truckdriver from late April until his discharge on July 24. He took a leading part in the organizational activities which began around June 12 with the meeting at the beer parlor, attended by some six or seven employees, at which four of the employees, including Peeler, signed cards. Knowledge of Peeler's activities plainly reached Feild, through his interviews with Peeler and Rivera as found in section B, supra; as well as through his interrogation of all other employees. Peeler was discharged on July 24, following his return from a trip to New Orleans, where his truck had overturned, causing total' damages to truck and cargo of some $2,800. The trip to New Orleans had followed immediately after one Peeler made to San Angelo, Texas, concerning which he had been orally repri- manded at Feild's direction for leaving Houston too late. As both incidents were assigned by Feild in his discharge memorandum (a copy of which is attached hereto as Appendix A), it is necessary to review the 'circumstances of both. There was no dispute concerning the fact that'Peeler was reprimanded for leav- ing late on the San Angelo trip. Peeler admitted that normally his instructions were to leave for that trip around 5 p.m. and that he did not leave until 10 p.m. Feild noticed that Peeler's truck had not left the plant when-it should have, and directed his truck foreman, Patrick Daniels, to find out the reason. Peeler's excuse when he returned was that he had some family difficulties, and Daniels relayed that information to Feild. Feild directed Daniels to reprimand Peeler for leaving late without notifying his superiors and to inform him that any truckdriver who could not leave on time should notify Daniels,or Feild. Daniels so informed Peeler and also= informed Peeler that he was "on record" as being reprimanded and that a repetition of such conduct would not be tolerated. Peeler's next trip, to New Orleans, involved distance and driving time (8 to 9' hours) roughly equivalent to those of the San Angelo trip. No matter of late- leaving attributable to Peeler was involved, for Daniels, admitted that the truck was loaded late and that Peeler did not get away until 6 p.m.' or later. Peeler testified that he left for New Orleans around 7 p.m., having first gotten supper. He stopped in Deweyville and drank, coffee, spent about an hour at Eunice in refueling and getting coffee, and stopped at Kenner on the outer edge of New Orleans for breakfast before he went on to National Foods to make his delivery: He arrived at National Foods around 5:30 a.m. and pulled in, but was informed by the guard that the place would not open until 7 a.m. Peeler' accordingly pulled out and parked his truck across the street just off the pavement, on the'shell shoulder, and immediately behind, another truck which was similarly parked and which was also waiting to make a delivery at National Foods. Peeler denied knowing of any law which required the' parking of a truck any certain number of feet off a highway which is outside' a city limits (as was the case at National Foods) and testified that the other" truck was parked the same distance from the pavement as his own but that it happened to be sitting on the driveway of a dead end street. Peeler soon realized that his truck was parked in an unsafe location. The shoulder was a narrow one which sloped away from the pavement toward a drainage ditch, and the combined weight of trailer and cargo (36 tons) was such that the shell surfacing began to crack and the downhill wheels began to settle: 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peeler first sought assistance from the driver of the truck ahead to pull his truck out with a chain, but the `chain broke, and the truck settled even deeper. Peeler then called a wrecker to pull him out, but it was too small, and though a second one was called, the two together were unable to pull the truck out because it had settled too much. However, one of the wreckers remained coupled to the truck by a cable to prevent it from turning over while Peeler attempted to make arrange- ments to unload the cargo. Peeler called Daniels, informed him of his troubles, and asked for authority to hire unloaders. Needing to clear that authoritywith Feild, Daniels stated he would call Peeler back. When Peeler went out to check on his truck, however, he learned that a deputy sheriff of the parish had ordered the wrecker driver to unhook his cable from the truck, stating he could not tie up traffic any longer, and thereupon the truck toppled over into the drainage ditch. Peeler reported that development to Daniels on the telephone and was ordered to stay with the truck until Daniels could get to New Orleans. Daniels in turn reported to Feild, who directed him to get the earliest flight to New Orleans and to determine whether Peeler had been drinking. Daniels arrived around 11:30, and hired laborers to help unload the cargo. After talking with the wrecker driver, with another deputy sheriff, and with the highway patrol- men, Daniels concluded that the truck turned over as a direct result of the uncou- pling of the cable ordered by the first deputy to arrive at the scene, and both the second deputy and the patrolmen confirmed that conclusion and stated the order should never have been given. Furthermore, despite the presence of the deputies and the patrolmen at various times during the day, Peeler was not charged with being illegally parked or with any other traffic offense. After making arrangements with the highway patrolmen, Daniels had two wreckers upright the truck around 6:30 or 7 p.m. after the traffic died down, and after making minor repairs to the truck and getting dinner, Daniels and Peeler began the return trip to Houston, with Daniels driving the truck. Though Peeler was supposed to take over the driving at Eunice, Daniels was unable to awaken him and so completed the trip as driver. Upon their arrival, Feild surveyed with Daniels the damage to the truck but did not talk with Peeler. Feild told Daniels he was contemplating discharging Peeler and wanted Daniels' views. When Daniels expressed disagreement, Feild directed him to go home, get some rest, and to think about it, but stated he was not forcing Daniels to make up his mind. Either then or in their later discussion Daniels assured Feild that Peeler was not drinking and gave Feild a full and objec- tive account of the circumstances of the accident as set forth above,5 including his conversations with the deputy sheriff, the wrecker driver, and the highway patrolmen. Daniels denied that he used the term "illegally parked" in reporting to Feild and testified that, without informing Feild of the exact distance between the edge of the pavement and the truck, he told Feild the truck was parked on the very edge of the traveled portion of the highway, that if the bank had held there would have been no trouble, and if the cable had not been unhooked, the truck would not have fallen over. The most outstanding example of Daniels' lack of candor was in volunteering the opinion at one point, "Legally the truck was illegally parked, legally speaking," though Daniels admitted he was without knowledge of the Louisiana law covering parking alongside state highways and had not taken a driver's test in Louisiana. There was, thus, no basis for the "legal opinion" which Daniels-also a layman-volunteered as a witness. During the afternoon conversation, Daniels again informed Feild he did not com- pletely agree with the decision to discharge Peeler but stated he would respect Feild's judgment in such matters because Daniels was new on that particular job. 5 Feild himself highly recommended Daniels' Impartiality, testifying that he chose Daniels to go to New Orleans because he was a union member and a union sympathizer and felt that Daniels would be entirely fair and entirely objective in the investigation. Furthermore, before putting Daniels up as his own witness, Feild Instructed Daniels that he should not lie either for Feild or for Peeler and that the exact truth should come out. From my observation of Daniels' demeanor and from the content of his testimony, I be- lieve that Daniels attempted to comply with those instructions and that with minor ex- ceptions he gave a candid and unbiased account of his entire connection with the discharge. ANIMAL FOODS CO. OF TEXAS, INC. 1021 Thereupon, Feild drafted the letter of termination, with some participation from Daniels, and Feild directed Daniels to deliver the letter and Peeler 's check when he came in the next morning. Feild testified that he made the final determination to discharge Peeler because it was a second offense, following on the heels of the reprimand for leaving late to San Angelo . He decided to terminate Peeler because of the two violations of safety regulations and the indications that Peeler could not be relied on to carry out instructions, despite the fact that Peeler was a very good truckdriver. Feild testified when originally called by the General Counsel that Daniels informed him that Peeler was illegally parked . Resuming the stand after Daniels testified , Feild testified that he relied on Daniels as truck superintendent to keep abreast of all safety rules and regulations and that he himself had no expert knowledge on the subject and did not profess to have any. Feild continued that he had absolutely no way of knowing whether the truck was on a highway or a street or whether it was parked legally or illegally, and that the use of the word "illegal" was given to him by Daniels, who told him how far a truck should be parked from the highway and told him the truck was illegally parked. On this conflict in the testimony of Respondent's witnesses, I fully credit Daniels, whose testimony was in full accord with the circumstances of the incident as Peeler testified to them and also it received strong inferential support from the fact that despite the presence of a number of deputy sheriffs and highway patrolmen Peeler was not charged with, or even criticized for, illegal parking or any other traffic offense. That Daniels did not in fact agree with the termination was also established by his undenied comment when informing Peeler of the termination that he had attempted to "talk Mr. Feild out of it" but was unable to do so. Of even more significance was Peeler's testimony, again undemed, concerning the conclusion of the discharge conversation. Peeler and Daniels went into Knight's office to look for the discharge letter which Daniels was to deliver (Appendix A) and Peeler saw on Knight's desk on the calendar pad under the date July 22 a notation, "Peeler solicited Welch to join Union on company premises," followed. by the date, "7-21-65." Peeler pointed out the notation to Daniels, who looked at it but made no comment. Peeler testified that he had in fact solicited Welch, a new driver, to join the Union around July 17 at a time when Welch was leaving on a delivery trip and that Welch did not return to the plant until July 21. Peeler requested Alex Rivera also to look at the note on Knight's calendar pad, and Rivera testified in turn that he made an excuse to go into Knight's office and that he thumbed through the calendar and found under the date July 22 or 23 the notation which Peeler testified to. Though I called to Feild's attention at the end of the hearing the significance of the notation on the issue of discriminatory moti- vation, Feild did not choose to call Knight or to recall Daniels to deny the existence of the note, but contended himself with the representation (which I agreed to accept as testimony) that Feild had no knowledge of the notation. Concluding Findings This is a typical case presenting an issue of discriminatory motivation for a dis- charge which followed an incident which plainly constituted "cause" if it were in fact the real cause and not a pretext to eliminate an employee who took a leading part in the organizational activities. But contrary to the practice in the usual case of first considering the General Counsel's evidence to determine whether he made out a prima facie for discriminatory motivation, it is not possible here to separate the evidence which supports the General Counsel 's case from that which supports Respondent's defense. That is so because the bulk of Feild's testimony was given while he was the General Counsel's witness under rule 43(b) and because Daniel's testimony as Respondent's witness went far both to support the General Counsel's case and to negate Respondent's defense. Respondent's attitude toward the organizational efforts and its knowledge of the part which Peeler was playing was fully established by the findings made in Section B, supra Thus Peeler was one of the first whom Feild interrogated and Feud learned from him of the beer parlor meeting in which Peeler had taken a leading part. Thereafter Feild admittedly interrogated all the employees concerning their contacts with the Union, whether they had expressed a desire to join, and whether they had in fact signed a card But Feild's conduct was not limited to such interro- gations. He sought to have Peeler and Rivera divulge from whom they obtained 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards and where they were signed, and he charged them with being disloyal and having turned against him. He also sought to induce Peeler to bargain with him concerning employee complaints rather than to continue with the Union. Furthermore, Respondent's interest in Peeler's union activities did not end with Feild's interrogations, but continued to the time of his discharge. Thus Daniels admitted that he too continued to "find-out" who was involved in the union activi- ties, and to what degree, and he did not deny that Peeler pointed out to him the note on Knight's calendar pad' concerning Peeler's solicitation of Welch. Indeed the existence of the note established that until the very eve of the discharge Respond- ent's supervisors were keeping a close check on Peeler's organizational efforts among the employees 6 It is against that immediate background of Respondent's absorbing interest in Peeler's union activities that we view the causes assigned for the discharge. It can be assumed, of course, that the reprimand of Peeler for the San Angelo trip was both bona fide and that Peeler duly earned it 7 However the circumstances sur- rounding the entire incident at New Orleans as Daniels learned them and reported them to Feild did not warrant discharge, as Daniels informed Feild. For Peeler had parked his truck in apparent safety immediately behind another truck which was similarly parked and as soon as he discovered that the shell surfacing was giving away, he did everything within his power to have the truck moved. And finally, as Daniels reported to Feild, it was the uncoupling of the wrecker cable, improperly ordered by a deputy sheriff, which led to the truck falling into the ditch. It is thus apparent that Daniels' report to Feild absolved Peeler of blame, despite the heavy damage involved, a fact which is further buttressed by Daniels' refusal to agree with Feild and his attempt to talk Feild out of the discharge. But Feild was unrelenting in his desire to rid himself of Peeler, and in an effort to find some- thing blameworthy which would justify the discharge, he came up with the claim that Peeler was illegally parked. On that crucial point Feild put all his eggs in Daniels' basket, for admitting that he had no knowledge of driving laws and regula- tions and professing none, and that he relied solely on Daniels to keep abreast of such matters, Feild testified that Daniels informed him that Peeler was illegally parked. But Daniels specifically denied he so reported, and it was plain from his testimony otherwise that he too was without knowledge of applicable Louisiana laws and therefore lacked any basis for volunteering on the stand an opinion that "legally speaking" Peeler was illegally parked. Aside from that, the circumstances other- wise disclosed no reasonable basis for that legal conclusion on a layman's part, for the evidence showed that despite the fact that deputy sheriffs and highway patrol- men were present at various times during the day, none of them charged Peeler with illegal parking or with any other traffic offense. Indeed the only criticism which was voiced at anytime was Daniel's criticism of the deputy sheriff who ordered the uncoupling of the wrecker cable, and the concurrence in that criticism by another deputy and by the highway patrolman. Except for that order, the proximate cause of the accident, the truck would not have fallen over as Daniels reported to Feild. Thus the charge of illegal parking, on which Respondent rested its claim of negligence on Peeler's part, was one without support on the record and one which was first advanced by Feild, sua sponte, after Daniels' report showed nothing blameworthy in Peeler's conduct. I therefore conclude and find on the entne evidence that Feild seized on the incident as a pretext to serve as ostensible cause of discharge, "the real, the domi- nant motive of, the moving cause for, which [was] antiunion discrimination." 6 Though Feild's representation is accepted that he had no personal knowledge of the notation, the evidence established knowledge on the part of Supervisors Daniels and Knight, which of course is imputable to Respondent Montgomery Ward & Company, Incorporated, 115 NLRB 645, 647, 648, enfd. 242 F.2d 497, 501 (C A 2). Furthermore, Daniels, with such knowledge, actively participated with Feild in the making of the discharge Z The emphasis on lack of sleep, however, tended to detract from the seriousness with which Feild claimed to regard the offense, for Respondent was responsible for a corre- sponding lack of sleep resulting from the late leaving of the truck on the New Orleans trip. Thus even without stops Peeler could not have arrived at New Orleans before some- time between 3 and 4 a in Furthermore though Respondent argues in its brief that Peeler also violated an ICC regulation that a driver must get 8 hours of rest after driv- ing a maximum of 10 hours, the evidence concerning Peeler's driving schedule showed there was no such violation as claimed. Aside from that, it was not a matter which Respondent assigned in making the discharge ANIMAL FOODS CO. OF TEXAS, INC. 1023 N.L.R.B. v. C. & J. Camp, Inc., et al., d/b/a Kibler-Camp Phosphate Enteprise, 216 F.2d 113, 115 (C.A. 5), enfg. 107 NLRB 1066. "[T]he fact that a lawful cause for discharge is available is no defense where the employee is actually dis- charged because of his Union activities." N.L.R.B. v. Ace Comb Co., 342 F.2d 841, 847 (C.A. 8). And see N.L.R.B. v. Ambox, Inc., 357 F.2d 138 (C.A. 5). I therefore find that by so discharging Peeler, Respondent engaged in discrimination to discourage membership in the Union, thereby engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac- tices within the meaning of Section 8 (a) (1) of the Act. 2. By discharging Edward E. Peeler because of his union membership and activi- ties, Respondent engaged in discrimination to discouiage membership in the Union, thereby engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases as provided in the Recommended Order below and which I find necessary to remedy and to remove the affects of the unfair labor practices and to effectuate the policies of the Act. For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease-and-desist order. Upon the foregoing findings of fact and conclusions of law and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Animal Foods Co. of Texas, Inc., its officers, agents, representatives, successors, and assigns, shall- 1. Cease and desist from: (a) Interrogating coercively employees concerning their union affiliation, activi- ties, and desires, concerning the signing of union authorization cards, and concern- ing the union activities of other employees. (b) Indicating or giving to employees the impression of engaging in surveillance of union activities. (c) Soliciting employees to withhold their support from the Union by engaging in individual bargaining with it. (d) Seeking to induce employees to refrain from supporting the Union by reminding them of past aid and assistance which it has rendered. (e) Discouraging membership in General Drivers, Warehousemen & Helpers Union Local No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organi- zation, by discharging, failing to reinstate, or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization to form, join, or assist said Union Local No. 968, 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. 2. Take the following affirmative action: (a) Offer to Edward B. Peeler 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 payment to him of a sum of money equal to that which he would normally have earned from July 24, 1965, to the date of the offer of reinstatement, less his said 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earnings during said period (Crossett Lumber Company, 8 NLRB' 440), said back- pay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716. (b) Notify said Edward B. Peeler it 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 Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and upon request make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under these Recommendations. (d) Post in its offices and plant at Houston, Texas, copies of the attached notice marked "Appendix B." 8 Copies of said notice to be furnished by the Regional Director for Region 23, shall, after being duly signed by Respondent's representa- tive, be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous 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 any other material. (e) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.9 8In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "a 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" 0 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 A MEMO TO: Edward B. Peeler FROM: James P. Feild July 23, 1965 Neither Pat Daniels, nor the writer, relish the need for terminating your services, but unfortunately, circumstances and events since last Sunday, July 18th, seem to leave us no alternative. You have been an exceptionally good driver for us-so much so that we are tempted to overlook the serious aspects of these events. However, difficult as this action is to take, we believe that your own safety as well as normal observance of safety regulations on the part of this Company, require us to dispense with your services. You have already been formally reprimanded by Pat for failing to leave last Sun- day afternoon at the time you were instructed to leave. You later admitted to Charles that you finally left at 10:00 p.m., thus requiring you to drive far too long without sleep. This was a serious error in judgment, to say the least. Now, on the heels of this incident, we are faced with the wreck which occurred yesterday morning in New Orleans, wherein you were illegally parked in a spot which subsequent events prove to be very unsafe. This accident will cost us a mini- mum of $500.00 (deductible) and probably $750 00 if there is a $250.00 deductible clause on the cargo insurance, as I suspect. In addition, it will cost us the loss of the vehicles for such time as it takes to repair them. All of us learn from life and thru experience, and sometimes these experiences seem unduly harsh. However, on the bright side, because of this harshness we are better able to cope with similar situations in the future. Therefore, let us hope that this experience may in reality save your life at some future date. Your check for earnings thru this morning is attached. Best regards, (S) James P. Feild JAMES P. FEILD Concurred in: (S) Pat Daniels PAT DANIELS FISCHBACH TRUCKING CO. 1025 APPENDIX B 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 interrogate coercively our employees concerning their union affiliations, activities, and desires, concerning the signing of union authoriza- tion cards, and concerning the union activities of other employees. WE WILL NOT indicate to our employees or give the impression that we are engaging in surveillance of union activities. WE WILL NOT solicit our employees to withhold their support from the Union by engaging in individual bargaining with us. WE WILL NOT seek to induce our employees to refrain from supporting the union by reminding them of past aid and assistance which we have rendered them. WE WILL NOT discourage membership in General Drivers Warehousemen & Helpers Union Local No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization, by discharging or failing to reinstate employees or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT in zany other manner interfere with, restrain, or coerce employ- ees in the exercise of their right to self-organization, to form, join, or assist said Union Local No. 968, or any other labor organization, to bargain col- lectively through representatives of their own choosing or to engage in other concerted activities for the purpose of collective bargaining or other mutual paid or protection or to refrain from any or all of such activities. WE WILL offer to ,Edward B. Peeler 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 as a result of our discrimination against him in the manner pro- vided in the Trial Examiner's Decision. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. ANIMAL FOODS Co. OF TEXAS, 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 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, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-4722. Fischbach Trucking Co. and Robert McCall, Jr. Case 8-CA-4016. June 23, 1966 DECISION AND ORDER On March 23, 1966, Trial Examiner Ivar H. Peterson issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take 159 NLRB No. 108. 243-084-67-vol. 159-66