Vogel's, Inc.

566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vogel's, Inc. and Henry E. Finley. Case 26-CA-2763 February 1, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN United States of his right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On October 31, 1967, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled case, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter both the Respondent and the General Counsel filed exceptions to the Trial Ex- aminer's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that Respondent, Vogel's, Inc., Little Rock, Arkansas, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order, as herein modified. 1. Delete from paragraph 2(d) of the Trial Ex- aminer's Recommended Order that part thereof which reads "to be furnished" and substitute therefor "on forms provided ...." 2. Delete the words "a Trial Examiner of" from the second paragraph of the Trial Examiner's notice. 3. Delete the words "Trial Examiner" and sub- stitute therefor "National Labor Relations Board" in the fourth paragraph of the Trial Examiner's notice. 4. Add the following immediately below the signature line at the bottom of the Appendix at- tached o the Trial Examiner's Decision: Note: We will notify Henry Finley if presently serving in the Armed Forces of the THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held before the duly designated Trial Examiner on August 15 and 16,1967, at Little Rock, Arkansas, on complaint of the General Counsel against Vogel's, Inc., herein called the Respond- ent or the Company. The issues litigated are whether the Respondent violated Section 8(a)(3) of the Act by its discharge,of Henry E. Finley, the Charging Party, and Section 8(a)(1) by various statements and acts of its management representatives. Briefs were filed after the close of the hearing by the Respondent and the General Counsel. Upon the entire record in the case, and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Vogel's, Inc., a wholly owned subsidiary of the Borden Company, is an Arkansas corporation with its principal office and place of business in Little Rock, Arkansas, where it is engaged in the wholesale distribution of food products. During the past 12 months the Company received goods and products valued in excess of $50,000 directly from points outside the State of Arkansas, and during the same period it shipped goods and materials valued in excess of $50,000 directly to out-of-State loca- tions. I find that the Respondent is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Chauffeurs, Teamsters, and Helpers Local Union No. 878, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen, and Helpers of Amer- ica, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. A Picture of the Case This Company operates a warehouse from which a fleet of trucks radiate short and long distances to deliver food for resale and consumption to a great variety of com- mercial customers. There are between 30 and 40 em- ployees, including truckdrivers, warehousemen, and of- fice clericals, stationed at or working out of the warehouse location. In January 1967 several employees undertook to organize the group into the Union, and the record shows clearly that one of the most active, if not the principal enthusiast in soliciting signatures to union cards, was Henry Finley, a long-haul driver. The Company soon learned of the organizational campaign; a formal written 169 NLRB No. 71 VOGEL'S, INC. 567 notice went from the Teamsters to the Company on February 14; it was followed by the filing of a petition with the Board for a representation election, a stipulation for consent election, and an eventual balloting conducted by the Board on June 1. The Union lost the election. The Respondent's reaction to the union campaign was a program to curb it. Sam Vogel, the president, called a meeting of supervisors as soon as he learned of the activi- ties. Tom Reeves, a supervisor and witness for the Respondent: "I was asked to campaign for our company against the union." Arthur Scott, another supervisor called to testify by the Respondent, attended the first meeting and was told, as he recalled: "He [Vogel] told us he would like to know who found out you know, who was for the union and who was against it." Within a week there was a second supervisory meeting. Again Supervisor Scott: "Mr. Vogel wanted to know who was for the union and who was against it, so I went out and I asked to find out who was for it and who was against it, and I came back and I said I had so many for and so many against." Twice during the month before the election - on May 1 and again on May 22 - Vogel delivered a speech to the assembled employees strongly urging them to vote against the Union. The supervisory hierarchy consists of Vogel, president, James Nabors, operations manager, Goldberg, vice president, and three direct supervisors - Reeves, Scott, and Jim Smith. All three of the latter openly conceded at the hearing that they questioned em- ployees as to their union sympathies and activities. Smith even admitted to looking in the cab compartment of Fin- ley's truck - this is the driver who filed the charge in this proceeding - and finding a folder of union materials, which he quickly brought to the manager. It is against this pattern of conduct and clear antiunion attitude of the Company that certain conflicts in testimony are too be evaluated. The complaint alleges a number of instances of illegal interrogation by management agents, some accompanied by promises of benefits to induce abandonment of the Union, and statements intended to intimidate employees with warnings that their activities were being surveyed, all said to be violative of Section 8(a)(1) of the Act. There is a further allegation that the Company deliberately, and illegally, withheld a raise from all the employees only because they were attempting to establish a union in the plant. Finley, the chief union advocate, was discharged on April 24, 1967, and it is charged this was retaliation and therefore a violation of Section 8(a)(3). A possible issue is whether, in view of the illegal acts committed, the Respondent should now be ordered retroactively to give the employees the hourly raise said to have been im- properly promised in the spring of the year. The three supervisors - Reeves, Scott, and Smith- vir- tually admitted what' amounts to improper questioning of employees concerning their union activities. The remain- ing allegations, interrogations and threats by Nabors, un- lawful discharge of Finley, and discrimination in employ- ment by denial of raises, are all denied by the Respond- ent. Affirmatively, management asserts that Finley was discharged solely because of continuing complaints con- cerning his work performance. B. Interference, Restraint, and Coercion Leroy Macon, who worked 3 years as a truckdriver and left the Company in July 1967, testified that on or about February 8, while he and Foreman Smith were riding the truck together, Smith told him the men should form a union because they were not being paid enough, and that he, Macon, was noncommittal. A week later, still accord- ing to Macon, Smith asked him: "Macon, how are you coming along with the union and why didn't you let me know about the meeting," and when Macon again evaded, the foreman added: "Just keep me informed ... and don't tell anybody about this, because . . . it might get me in trouble." Smith's version of these talks varies little from that of the employee. He said Macon opened by asking for a raise and that he, Smith, came back with "why he didn't start a union , why he and the other boys didn't organize a union ... I told him to let me know if he run into any- body that wanted to get a union started." On the second conversation again Smith said Macon started it: "He says that he talked to some union official, or something of that nature ... I told him if he found out anything more to let me know." Smith also recalled there was mention of a union meeting, and admitted having asked Macon ". . why didn't you let me know about the meeting?" It is a fact on this record that the first union meeting was held at the union hall on February 11, 1967. I credit Macon's testimony. Smith was under orders to learn all he could about the union activities. On this entire record, the idea, obliquely suggested at the hearing, that Supervisor Smith simply wanted to see the men earn more and himself favored bringing a union into the Com- pany is pure fancy. The urgency in his pressing inquiries - he found fault with Macon for not having reported the union meeting - more logically indicates a subordinate seeking to satisfy instructions from above. He also ad- mitted speaking of the Union to another truckdriver, Donaldson, late in March, and asking "how the union business, or something to that effect was coming along," and "how he [Donaldson] felt about the Union." Smith's professed liking for a union was his technique for in- gratiating himself with the drivers in order the better to unearth what Vogel wanted to know. This was probing into the protected activities of the employees with an ul- terior motive, and had nothing to do with any innocent inquiry aimed at ascertaining representative status for the purpose of deciding whether to recognize a union or not. I find that by Smith's conduct in interrogating Macon and Donaldson as to their sentiments and as to the union ac- tivities of other employees the Respondent violated Sec- tion 8(a)(l) of the Act.' Ronald Corrigan was a warehouse employee. He, testified that on May 8 Foreman Tom Reeves asked him what he thought about the Union, had he ever gone to a union meeting, and had Finley, the truckdriver, spoken to him about the Union. Corrigan feigned no knowledge at all. Reeves then spoke to him of the "benefits of the Com- pany," and advised the employee to come to him if he had any question about the Union. Again a week later Reeves spoke to Corrigan, this time asking had he made up his mind, and again reminding him that, if he did not un- derstand about the Union„the supervisor would enlighten him. And again Corrigan equivocated. Clyde Trotter, another warehouseman, gave similar testimony. Late in April Reeves asked him had he "heard anything about the union," and, when Trotter answered yes, wanted to know was he "for the union or against it." Trotter, too, lied and said he was not for the Union, and Reeves then told him ' Struksnes Construction Co., Inc., 165 NLRB 1062. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "the union wasn't no good, because they was just something out for money." Like Smith, Supervisor Reeves admitted virtually the entire substance of his talks with these two men, "I asked him [Corrigan] if he knew anything about the union." Reeves first said he recalled no mention of a union meet- ing, or any reference to Finley, and then added he did ask had the employee "gone to any union meeting." As to the second talk, Reeves testified he asked Corrigan "if he had learned anything since our last talk ..." and, when the answer was no, proceeded to tell Corrigan "some of the facts about the union ... Jimmy Hoffa was in prison .. . the union could assess fines and dues and what have you without his permission and things like that." Concerning his conversation with Trotter: "I asked him if he had heard anything about the union . . . I tried to tell him some of the facts about it, just like I did with all the boys ... about fines, dues, assessments ...... I credit the testimony of Donald Corrigan and Trotter, and find that by Supervisor Reeves' interrogation of these employees the Respondent violated Section 8(a)(1). On or about May 12 Foreman Arthur Scott (also called Pete) talked to employee Joe Corrigan. According to Cor- rigan the supervisor asked "what did I think about the Union." When the employee refused to commit himself, Scott added: "Well, you know that you stand to lose some benefits ... the insurance, or the bonus, the Christmas bonus ." Monroe McKinney, another employee, testified Scott spoke in like vein to him in April. ". . . he asked me what was my opinion about the union ... did I know my brother was for the union ... was Willie for the Union ... did you know that the union, they could take the Christmas bonus away from us, and plus they could draw money out of your check without your knowing it, and you couldn't do nothing about it." McKinney an- swered he knew nothing of these things, and the foreman then added "several employees had attended the meeting out at the Teamsters Hall ...." Scott spoke to the man again in May. ". . . he came over with a pad in his hand and he asked me have I made up my mind about the union . how was Y going to vote and I told him ... I asked him how come'and he said because he wanted to know. He demanded to know, how I was going to vote. He said because' it wouldn't do me no good, because he already knowed who was going to win." Like the others McKin- ney said he was going to vote no, and, as his testimony continued: "He [Scott] kept writing letters that came to my house and ,every time I was on the job Pete Scott would come up and get on the employees about this, inquiring how we was going to vote, and would tell us to vote against it." Scott pursued the pattern of illegal interrogation. He said he asked Joe Corrigan "how he felt toward the union . I told him that it was possible that we could lose our benefits' with the Company if the Union came in." As to his first talk with McKinney, he admitted asking "how he felt toward the union," but denied having spoken of his brother, or Willie, or the Christmas bonus. He then con- tinued to testify that on the second occasion with McKin- ney "I asked .'.. were his feelings still the same toward the union," and that McKinney did not "want to talk about it any more." At this point, still according to the su- pervisor's testimony: "I told him-there was a possibility we could lose our benefits with the Company and I men- tioned the Christmas bonus as one for an example." Scott closed his' testimony saying that as instructed by Vogel at the supervisory meetings "... I went out and I asked to find out who was for it and who was against it, and I came back and I said I had so many for and so many against." Q. All right. Did you mention the names of the people who were for, and the people who were against? A. I believe I did on some. I credit Joe Corrigan and McKinney completely, and I find that Supervisor Scott interrogated them concerning their union activities, threatened them with loss of em- ployment benefits if they should favor the Union, and gave them to understand that their union activities, as well as those of other employees, were being surveyed by company representatives, all constituting unlawful restraint and coercion in violation of Section 8(a)(1), for which the Respondent is accountable. There is considerable testimony of similar conversa- tions about the Union between Manager Nabors and the employees. Macon spoke of two of them. Nabors met him on the route one day, and as the two sat in the manager's pickup truck, Nabors, according to the employee, opened with: "I would like to talk to you ... I understand that you are one of the guys that is pushing the union and I would just like to have a man-to-man talk about it... the Company had a good plan to put into effect and would simply not do so because of the union activities. As soon as the union activity was over they could put this plan into effect." Macon answered that he was determined to see the union campaign through. Macon also testified to another talk with the manager on or about April 1: "Mr. Nabors called me in his office and he say he wanted to talk to me. He said that he understood that Henry Finley had backed down on the union, and he asked me how I felt.... He also mentioned a couple of fellows names that he had talked to and he said that they were not for the union, either." Nabors' version of these two talks is that on each occa- sion it was the employee who started it by saying he had been "pushing the union" and wanted the manager's opinion of what he should do because he was now unde- cided on the matter. Nabors denied there was any talk of raises and insisted the word "union" was uttered only by the employee and never by himself. He would have it that, although the first time he made clear he was not going to give advice, Macon started the second talk by saying "he was still waiting for my answer as to what I thought he ought to do. " There is no plausible basis for believing the employee would go out of his way to advise the manager he had been pushing the Union, much less that he would return for advice after once being told he was not going to receive it. In contrast, Macon's version that it was Nabors who each time wanted to know what was going on fits logically into the instructions given by Vogel to all the supervisors to ferret out the unioneers, to say nothing of the unquestionable pattern of interrogation shown by the testimony of the three other supervisors. Moreover, as will appear below, Nabors' credibility generally was greatly impaired by his cold contradiction of testimony by two other witnesses of the Respondent on very critical details of the discharge allegations concerning Finley, the leadman in the organizational campaign. Nabors talked to Joe Corrigan one day as the two were driving in a truck. According to Corrigan, Nabors said: "... as soon as the union deal was over that the old drivers - older employees would get a dime raise, and before Christmas bonus time we would get another dime." In April McKinney asked Nabors for a raise, and, as the em- VOGEL'S, INC. ployee testified, the manager answered he could not do so "because of these union activities. He picked up a letter addressed from the president, Mr. Sam Vogel and quote, he said, it is stated we was entitled to a 20-cent raise, 10- cent raise now and 10-cent raise in the fall , but he said that we would not be able to get this raise until this union activities was over with, so I told him thanks and came out of the office." An hour or so later Nabors called McKinney and gave him a 5-cent-per-hour raise because he "deserved" it. And finally, there is testimony by Trotter, who also asked for a raise on about May 1. The manager's answer was ". . . that he didn't know I was due a raise or not, he would check and see, but we did have a 10-cent raise after the union mess was over with... . [H]e said I also had a 10-cent raise in the fall, too." Nabors then told Trotter to "be sure to vote no." At the hearing Nabors did not refer to Trotter's testimony. He denied any reference to a "letter" about planned pay increases , or 10-cent raises. His testimony is that all he told both Corrigan and McKinney was that, because of the Teamsters union activities , all wages were frozen, but that "As soon as the situation is settled and everything gets back to normal , we will review out-situa- tion and whatever is in order will be brought up to date." He said he gave McKinney the 5-cent raise because the records showed that it was "due." The Respondent placed into evidence a memorandum bearing the date February 28, 1967 , from President Vogel to his two immediate subordinates . It reads as fol- lows: February 28, 1967 To: Jim Nabors , C. C.: A. D. Goldberg From : Sam M. Vogel Dear Jim: - I agree that we should raise the wages in the warehouse and for the drivers as we discussed; not only now, but also we should consider next Fall also. I think that a minimum of 10 cent an hour for each man at this time, and again in- the Fall , however because of the Teamsters Union interference at this time, we are unable to do so. _ Yours truly, Vogel's Inc. Sam M. Vogel In explanation of this memorandum Vogel testified that in early January, before he or anyone on his management staff had learned anything about the union campaign, the three of them had discussed the possibility of raising wages throughout the .plant; Nabors added the idea resulted from the Company just having "finished a good year." Vogel made clear that before any final decision had been made , either as to the amount of raises or as to whether definitively to grant raises at all, the Union's letter of February 14 arrived, and that then, on advice of counsel, it was decided to defer all consideration of the matter until the question of union or no union was finally resolved. Asked to explain why, with the matter thus ta- bled for future appraisal, he had nevertheless determined upon a fixed amount and given such advice to Nabors and Goldberg, all Vogel said was that the memorandum was "a conclusion of an opinion that I had formulated after 569 talking to Mr. Goldberg and Mr. Nabors and discussing it with counsel." I credit the testimony of Macon , Joe Corrigan , Trotter, and McKinney against the partial contradictions of Nabors. Trotter's testimony stands totally uncon- tradicted. The interrogation fits plainly into the company- wide program of unlawful probing into the union activities of all the employees. Corrigan's and Trotter's knowledge of 10-cent raises immediately and 10-cent raises later could only have come from the intramanagement note by Vogel. If he spoke truthfully that it had already been de- cided not to give raises at all until-the union question was settled, there could have been no legitimate reason for him to fix any amount now or to advise his subordinates about any inchoate plan for the future. The only purpose such a written communication could reasonably have was that it be used exactly as the employees said Nabors used it, to dangle before them the promise of a future benefit in return for their abandonment of all thoughts of a union. It was a bribe offer, pure and simple. I find that by the manager's interrogation of Macon, by his statement to Macon that he knew the names of union adherents, and by his statements to Macon , Joe Corrigan, Trotter, and McKinney that the Company would grant raises when the union campaign was defeated the Respondent violated Section 8 (a)(1) ofthe Act. C. The Discharge of Henry Finley Finley was one of a small group of employees who early in January conceived the notion of organizing the employees into the Teamsters Union. He signed a union card himself, and induced eight others to do so. While the exact date of his solicitation may not be clear on the record, it is clear he was one of the most active and that the Respondent was aware of his activities , as, indeed, in view of the widespread interrogation carried on by all the supervisors, Was inevitable. Nabors, who discharged him, admitted it had been reported to him Finley was signing up the employees . The first union meeting took place on February 11, and it was about that time that Finley signed up the others. Finley testified about five conversations he had with Nabors in which the Union was discussed , all in the latter's office. There is a conflict between his version and that of the manager concerning these talks. In the light of the entire record, including the diverse admissions by sig- nificant witnesses and the inherent probalities of the developing situation before Finley's discharge , plus the demeanor of the witnesses , resolution of the question of credibility in this instance is not difficult. Two weeks after the last talk, on April 24, Nabors discharged Finley, assertedly on the ground that there were accumulating too many complaints by customers on the way the driver made deliveries. Finley testified that on February 25 Nabors telephoned him at home to meet him in the office, where he started by saying he had heard about the union meeting and wanted to know how many employees had attended. Finley replied it was none of Nabors' business, and that the Company was "gunning" for him. Nabors replied this was not so, else he could release the man then and there. Finley then asked to borrow $25 from the Company, and received it. As they talked, and as Finley testified, Nabors showed the employee a letter from Vogel stating that the Borden Company had offered a 20-cent raise to - 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees which it could not give. Nabors then said: "This is what the Borden people have to offer you... but the activities that you fellows are carrying on, the Com- pany cannot give it to you...." Finley refused to believe this. As Finley left Nabors said: "The Company can go back to normal if you guys drop the union activities." On March - 15, as Finley continued to testify , Nabors again called him to the office and asked had the Company been unfair to him, was he dissatisfied with his work. Fin- ley answered he was dissatisfied only with Nabors. Again Nabors asked about the union activities: "Well, I see you fellows still have this ball bouncing. . . ." When Finley said he had a right to organize a union , Nabors showed him a list of employees of another company , represented by a union , and compared the relative pay scales, and again Nabors showed Finley the Vogel letter about the 20-cent raise, saying : "You are making $ 1.50. If you would stop this nonsense , the union activity ... we will give you this dime increase and a dime later on in the year." Finley was in Nabors' office again on about March 23, after returning from the route and leaving his truck on the lot. He said he saw Supervisor Smith snoop inside the cab of the truck and then heard Smith say to Nabors , in a loud whisper, that Finley had "some union material" in his truck. Nabors asked what kind of material Finley had, and he said it was a "layman's guide of the NLRB." As they talked Nabors asked again about the union activities - "I guess you guys still have the ball bouncing" - and asked how many employees Finley "had signed up." Again on April 4 and 5 the two men talked in the office. Nabors called Finley in on the 4th, brought up the subject of the 20-cent raise again, told of Hoffa's stealing money while being paid a large salary , and suggested Finley quit if he was not satisfied with his job. The next day Finley came in to discuss an insurance benefit matter because his wife had been ill. The conversation turned to the Union, and, still according to Finley, Nabors said something about 30 or 35 percent of the employees sig- ning a paper respecting the Union, "to get the union out of the way so he could give the 20-cent pay increase." Nabors also found occasion to say "someone at the last union meeting we held had told him how many attended the union meeting...." All of the foregoing is from Finley's direct testimony as a witness called by the General Counsel . In the course of extended cross-examination there were confused references , not always clear as to date, to these various meetings, as welTas others which counsel for the Respond- ent suggested but which Finley denied . Pressed for ad- missions, he denied having told Nabors he had changed his mind about the 'Union, or having complained to the manager about Supervisor Smith , or offering to bring the employees to the office to prove they rejected the Union. In the course of this haphazard questioning another clear assertion by Finley came to light. On about March 8 Fin- ley ' had accompanied a discharged employee named Livingston to the NLRB office with the intention of filing a charge of illegal discrimination against the Respondent; after thie charge form had been filled in , Livingston had refused to sign it. Finley ' testified, during the cross-ex- 2 The Respondent's brief consists primarily of an attack upon Finley's credibility based almost entirely upon variances between the driver's oral testimony at the hearing and his earlier investigation affidavits given to a Board agent It is clear thatin the course of his employment Finley had un- counted occasions to speak with Nabors, and , if his recollection of par- amination, that in March - he was not clear whether the date was March 13 or 25 - while he was in Nabors' of- fice, the manager asked him whether he had accompanied Livingston to the Labor Board office . Finley denied re- peatedly it was he who brought the copy of the charge to Nabors' office , and insisted it was there , in the hands of the manager, when he arrived. He also said that that par- ticular paper, together with certain blank union- authorization cards and other literature that had been in his truck, disappeared at about the same time . Finley's contention at the hearing was that while he conceded he had no direct proof that Smith , the supervisor, had removed these things from the truck, this must have been the case because otherwise "how would he [Nabors] know that Livingston had been to the Labor Board" Among the things Nabors said , while testifying against Finley's story at the hearing, is that the driver had volun- tarily come to his office twice in March for the sole pur- pose of saying he had lost his enthusiasm for the Union, he had been sold short , and "he wanted out." According to Nabors, Livingston entered the office during one con- versation and Finley volunteered he had accompanied the man to the Labor Board but Livingston had refused to sign. With this Finley produced the copy of the charge and handed it to the manager. Nabors said he refused to look at it, and that as Finley left the room "he rolled it up in his hand and tossed it on my desk...." The Respond- ent placed the document into evidence as an exhibit. I do not credit Nabors.2 He was contradicted squarely by his own supervisor, Smith, who stated candidly he looked in Finley's truck, found the union material, and put it in the manager's hands. Nabors denied having received these documents from Smith. He thereby gave the lie directly to his own subordinate for whose credibili- ty the Respondent vouched by calling him to the stand. And again the story that such a prounion employee would go to the manager not once but twice for the express pur- pose of telling him he was now against the Union, rings hollow and has no reasonable basis for credibility. Moreover, that Nabors, like all other supervisors, would interrogate Finley about the continuing union activities, even to attempting to dissuade him in one way or another, is what was to be expected in the light of President Vogel's instructions in the beginning. Considering all other material aspects of the testimony, as well as the demeanor of the witnesses, I do not credit Nabors' deni- als that he also asked Finley how many employees had signed the union cards , or spoke about Hoffa , or said he knew how many had attended the union meeting. As to the testimony that he more than once used 'Vogel's wage increase memorandum to induce Finley to change at- titude, it also is consistent with Nabors ' other conduct as well as the activities of the lower supervisors. I find, as Finley testified, that Nabors interrogated him concerning his union activities and those of other employees , that he made clear to him the union activities of all were being surveyed by the Company , and that, as he had done with four other employees , he attempted to bribe Finley with the promise of an increase in pay to defeat the union cam- paign, all separate violations of Section 8(a)(1) of the Act. ticular things that were said between them was not always exact as to the precise date of a conversation , these are inaccuracies to be expected. I have considered these minor matters but find them to be of lesser sig- nificance than the persuasive related admissions of management witnesses and the contradictions among the company witnesses. VOGEL'S, INC. On or about April 10 Nabors told Finley there had been customer complaints, and if they continued he would be discharged. On the 24th he released the driver, for the stated reason that there were further such com- plaints. Absent convincing evidence that in fact Finely's work performance was the reason for this discharge, the record as a whole compels a finding that the Respondent released him for the- purpose of defeating the union cam- paign and thereby violated Section 8(a)(3). D. The Affirmative Defense Finley started with the Company in 1964 , and, after 3 months' learning the stock and the business , became a driver on long-distance deliveries. His work was to truck frozen food and other products to hotels , restaurants, stores, and other commercial consumers and retailers. After about 6 months he was removed as a long-distance man because he made too many mistakes in the manner and timing of his deliveries, and was placed on a city route where he could be supervised more closely and acquire greater experience . About a year before his discharge in April 1967 he was again placed on what is called the Texarkana run, which meant driving over 100 miles to distant towns and cities to make deliveries. Dur- ing the several months he was on city work, the Texar- kana run was operated by several different men, each of whom, for one reason or another, proved to be too incom- petent to be retained. As to the quality of his work during this 12-month period - in terms of what customer complaints there may have been - the testimony of the various company wit- nesses is not in harmony. Manager Nabors, who joined in the decision to release Finley, testified , at one point: ". . when he went back to the Texarkana territory, they [complaints] began to come in...." In contrast , Dillard Golden, one of the two salesmen whose territory Finley serviced, said that after he returned to this route "he done good." The burden of the total testimony seems to be, in the manager's words, that things went well until "the latter part of March ," when "the bottom fell out." A fair summary of the Respondent's total evidence respecting the driver's performance is that precisely at the time when his union activities reached a peak his desirability as an employee dropped to its lowest level. Complaints by customers as to how and at what hour food is delivered, are commonplace in this business. Fin- ley himself frankly recalled a number of them , some made during his first assignment to the Texarkana run, some in 1966, and even a few during 1967, before his dismissal. Generally the customers voice their gripes about the drivers to the salesmen , who call upon them regularly. Both Golden and Opie Lindsey, the two salesmen on the territory in question, testified to other complaints that they had received, during all, the periods that Finley made deliveries to their customers . Typical of the services that some customers wanted but did not always get, were: (1) to have the driver rearrange their frozen food supply so as to place new deliveries beneath the old stock in the freezers ; (2) no deliveries during rush hours - such as lunch or dinner hours in resturants and hotels; (3) quick deliveries the day after an, order given the salesman, in- stead of several days later. Considering the great distances Finley was required to drive on a single day's run, the number of separate stops scheduled on his delivery chart - sometimes as many as 60 in 1 day - and 571 the logical necessity for planning a circuitous system of separate drops, it is to be expected that an employer in such a situation would deem complaints of this sort an in- evitable aspect of its business. There were also com- plaints of pies broken in delivery, of potatoes left outside an establishment because delivery could not be effected at the moment, of the driver disturbing employees of the customers by too much chit-chat, and even one of Finley having suggested certain employees should join a union if they wanted raises from the customer. In normal cir- cumstances the Company takes these things in stride. Asked what he does when a customer complains, Golden said: "Normally, I try to cover it up my self ... I make excuses." And, of course, Finley, whatever his faults may have been, was put back on the long-distance deliveries because others who had been tried in his place were worse, and for a whole year before he undertook the union activities the Respondent found him quite accepta- ble. The Respondent filled the record with multiple details of customer complaints about Finley's work, but there is persuasive reason to believe that none of them were of any real concern to management. All three witnesses - the salesmen and Manager Nabors, to whom complaints are supposed to funnel - agreed positively that a company rule requires that complaints be in writing, from the sales men to Nabors. As Nabors testified: "Anything worth complaining about is worth writing about." But there were no written complaints throughout Finley's employ- ment. The only one placed in evidence was written by salesman Lindsey and is dated April 19, 1967, 3 days be- fore a Saturday, April 22, meeting of management at which the decision to discharge Finley was made. Golden said he too requested Finley's discharge in writing in April; his alleged request was not produced at the hear- ing. And, when Nabors, on or about April 10, warned Finley there must be no more complaints, he refused to reveal the names of the two customers of whom he spoke, although always in the past he did this; this time he refused to give the driver a chance to straighten things out, as had always been the practice. Nor was there any meaningful proof in writing of complaints by customers. There are three written complaints in evidence, but each was solicited from the customer by Golden - under in- structions from President Vogel - after Finley had been warned on April 10. The refusal to tell, Finley who had complained, coupled with such deliberate creation of a paper record, point very strongly to a hidden motivation. The Respondent's witnesses exaggerated grossly, and the conflict within their own stories further weakens the credibility of the entire affirmative defense of discharge for cause. Lindsey started by saying he discussed com- plaints about Finley with Nabors "sometime after the first of the year"; "I asked around the first of the year when the complaints - my complaints from customers began getting worse ... I asked him [Nabors or Vogel] if we could get a replacement driver...." Lindsey also said ". . . we [he and Golden] started some time in January or February asking that he be removed." Lind- sey even testified that, when in January or February he asked Nabors to discharge the driver, the manager refused to do so but told the salesmen Finley "was on probation and they were giving him another chance and this and that." But Nabors does not even claim to have warned Finley before April, to say nothing of putting him on probation in January. Instead, Nabors' testimony as 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the situation in January, is simply the "salesman would call me, little minor things . . . Nothing big. The normal thing." In the face of both salesmen's testimony that they kept after the supervisors to do something about Finley continuously from the first of the year, Nabors said that starting in the beginning of February "I didn't have any more for a little while" until "the latter part of March." It is not possible to believe the testimony of any one of these witnesses. On the entire record, and especially including the vague generalities and evasions, as well as the demeanor of the salesmen and_Nabors,_ I rind. what probative evidence there is is insufficient to prove that Finley was in fact discharged in consequence of complaints from his customers. The proof of union animus being clear, par- ticularly as directed at Finley by the manager, I conclude that the Respondent discharged him on April 24,1967, in retaliation for his union activities and thereby violated Section 8(a)(3) of the Act. E. Antiunion Speeches President Vogel assembled the employees to give them his views about the Union on May 1 and on May 22; each day he called them in in two groups. His testimony is that all he uttered is what appears in writing in two documents placed in evidence. The admitted burden of each talk was to dissuade the employees from any prou- nion resolve. He started by making clear "I personally want you to know that I don't want this union in our operation," and stressed it would be a mi stake for the em- ployees to become members. "We don't want anybody coming to us later and saying, `we just didn't realize how you felt about it or we wouldn't have made that mistake."' Both statements are devoted primarily to describing the Union as dishonest, money-seeking, a source of trouble - for which the employees would be "sorry" - and lead by criminals and professional troublemakers "roughing peo- ple up on the picket line." Again and again the speech belabored the criminal conviction of Hoffa. The speech on May 22 ends with an invitation to questions about the "facts to give you our view right now." There is testimony by employees who heard Vogel that he said more. Macon recalled Vogel saying on May 1 he had long operated under a "company policy" and "it was intended to stay that way and the union or nobody else was going to change it." Concerning the first speech Trotter also testified that Vogel said "the union was no good, and he wasn't going to have a union there, and he wasn't going to sign any contracts, and if you go out on a strike that you would lose your job and that they could hire somebody in your place...." As to the second meet- ing Joe Corrigan testified that Vogel said the Union was "no good," and that "it wouldn't be fair for not attending union meetings, and several men had gone to union meetings...." McKinney testified also as to the May 22 meeting. According to him Vogel also said "... that seven members had went out to the Teamsters Hall for a union meeting . . . " and that "if any employee needed any protection the Company would furnish us some police protection." Vogel denied any mention of police protection, not bar- gaining, or of employees having attended meetings of the Union, but I credit the employees. The comments they attributed to him are consistent with the like impression of surveillance conveyed by other supervisors, and with the fundamentally hostile attitude expressed generally by the company president. With so many acts of illegal coer- cion and intimidation carried on by virtually all the super- visors, statements by the president that he knew how many employees went to union meetings and that he would in the end refuse to sign a contract with the Union fit squarely into the total picture of the Company's policy. I find that Vogel told the assembled employees he was surveying their activities and that it would be futile for them to persist in their support of the Teamsters Union because in the end he would not sign any contract, and by such statements violated Section 8(a)(1) of the Act. On April 14, 1967, the Company posted a written notice advising all its drivers that: Effective upon receipt of this letter, any unaccounted for shortage of $1.00 or more in a driver's collections will be cause for reprimand to driver. In the event there are more than three such specific violations, driver will be subject to possible termina- tion of employment. It is, of course, a rule of the Company that drivers must timely turn in all collections received in cash, but Vogel testified "it is a constant" problem with some drivers who for carelessness or otherwise at times have shortages in their accounts. These small sums, although accounted for later, cause confusion in the recordkeeping, more so in recent times with the use of mechanical office equipment. The last time there was occasion to state the policy in writing was in 1964. Whether the employees at that time were also warned of possible discharge does not appear. In any event, Vogel explained the timing of this 1967 warning of discipline and discharge on the ground that the situation with respect to shortages "was getting more acute at this particular period." No company records of any kind were produced to support this general opinion. With the admission that this sort of thing "gets worse" and then "improves" over the years, I think it a fair in- ference, in view of the manner of, and the numerous and diversified forms of, other unlawful coercive conduct car- ried on by the Respondent during the period in question, that this notice too, publicized for the first time in years, was in fact motivated more by a desire to further in- timidate the employees than to advance a proper business concern. I find that publication of this notice at this time was a violation of Section 8(a)(1) of the Act. On March 16, 1963, over the signature of Sam Vogel, its president, the Respondent advised each of the em- ployees in writing that on July 1, 1966, the Borden Com- pany had granted improvements in their hospital and in- surance benefits, and that effective April 1, 1967, there would also be increased benefits granted by Borden in the pension plan. The Vogel Company is part and parcel of the overall Borden Company, which employs upwards of 36,000 employees throughout the country. The change in conditions of employment which the notice'ibrought to the attention of the employees was decided by the manage- ment of the Borden Company during the year 1966, as ap- pears without question from its 1966 annual report, received in evidence. It is not nor could it be contended that the decision to make the April change in pension benefits bore any relationship to the union campaign among the Vogel Company employees, nor that the tim- ing of the change was tied to that employee activity. Vogel testified he had been instructed by higher authori- ties of the Borden Company to advise these employees VOGEL'S, INC. 573 of the changes before issuance of the annual report. There is no reason not to believe this. Certainly the Respondent had a right to advise its employees of the change after it took effect in April._ It did so instead on March 16. I conclude that the evidence does not support the complaint allegation that this notice to the employees, in March, of the changed pension arrangement, con- stituted an unfair labor practice. - F. Alleged Violation of Section 8(a)(3) As detailed above, among the coercive techniques used by the Company to inhibit the union campaign was the, promise of two 10-cent raises once the Union was removed from the picture. This can only be regarded as a bribe offer, branded again and again by the Board and the courts as illegal interference with employee self-or- ganizational rights under the statute. The complaint al- leges that in this instance the failure to give the raise right off must also be viewed as withholding a material part of wages to achieve an illegal purpose, or a direct dis- crimination in conditions of employment in violation of Section 8(a)(3). A necessary predicate for this contention is that but for the union activities the Respondent would have granted a I0-cent raise some time in the spring and another such raise at the end of the year. The evidence does not support this allegation of the complaint. In his brief the General Counsel correctly states a basic principle of Board law: An employer's legal duty in deciding whether to grant benefits while a representation case is pending is to determine that question precisely as he would if a union were not in the picture. If the employer would have granted the benefits because of economic circumstances unrelated to union organization, the grant of those benefits will not violate the Act. On the other hand, if the employer's course is altered by virtue of the union's presence, then the employer has violated the Act, and this is true whether he confers benefits because of the union or withholds them because of the union.3 Can it be said, on the particular facts of this case, that, had the employees not started to join the Union, the Respondent would have given exactly these raises, or in- deed any raise at all at that time? I think not. The sole evidence that could possibly relate to that question is the self-serving and highly unreliable testimony of Vogel, who said management had discussed tthe possibility of granting raises during January, but had not decided, be- fore the Union's claim letter of February 14 was received, whether to do so or not. There is no indication of what other circumstances could be deemed economic need , or other factors affecting the Employer' s business. Nor could a raise at that time have appeared as continua- tion of an established practice. There can be no question, on the record as it stands, that, if the Respondent, instead of telling the employees it would give raises after the union activities ceased, had announced for the first time a decision to change the wage structure and in fact then and there put raises in effect, the Government would have charged it with illegal interference by giving the raises. And the evidence, in its totality, would have amply supported the allegation. In that hypothetical situation, Vogel's unsupported assertion of unrelated economic justification would have been of no avail. In the McCormick case, where the Board found it unlawful for the employer to have withheld the raise, it also said, poin- tedly, that if the raise had been granted it would have been "in response to economic circumstances," and not violative of the Act. Compare the Hobs on's choice con- sidered by the Board in Doubleday Bros. & Co., 163 NLRB 1053.4 This was not a raise the Respondent intended to grant regardless of the union activities; it was an idea conceived and bandied about by the supervisors as a quid pro quo to be promised the employees in return for freedom from the statutory obligation to deal with a collective-bargaining agent. It was an offer of a bribe and nothing more. As it cannot be found that "the employer's course [was] al- tered by virtue of the union's presence," there can be no finding of a violation of Section 8(a)(3). I shall therefore recommend dismissal of the complaint in that respect. Accordingly, the Respondent cannot be ordered now to grant these particular raises. The General Counsel does not argue, as perhaps he might, that a proper remedy to undo the coercive effect of the mere promise of raises would be to order their retroactive concession nonetheless . Consideration of such a possibility would, in turn, lead to the problem of distinguishing between one bribe offer and another. If promises of a wage raise offered as a bribe must be made good because it was improper to speak of them, might not logic require a like remedy to undo the illegal effect of a promised 1-month vacation with pay, or promotion to a supervisory position, or a straight $ 100 bill under the ta- ble? Be that as it may, absent open disputation of a novel remedial order of this type, or a specific demand by the General Counsel albeit after the close of the hearing, there is no occasion to consider its merits here, and on this particular record, I find no sufficient reason to propose it independently of the parties. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship 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 Having found that the Respondent has engaged in cer- tain unfair labor practices, I will recommend that it be or- 3 McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237, 1242. 4 Winn-Dixie Stores, Inc., Tampa Division , 166 NLRB 227, on which the General Counsel also relies, is inapposite. There the employer an- nounced, and immediately placed in effect, a general wage increase for all employees, with the sole exception of those at the moment seeking to be represented by a union. Clearly the special treatment ent accorded the limited group was occasioned by their union activities , was intended to restrain them in that respect, and was a departure from what, for economic reasons, the employer would otherwise have done Agawam Food Mart, Inc, 158 NLRB 1294, is also distinguishable on the same ground In that case the employer in order to maintain its competitive position vis-a-vis other companies which dealt with the union, granted improved sick leave benefits to all its own store employees (unrepresented) except the meat departent personnel, who alone were attempting to establish their union as bargaining agent through a Board proceeding. In each of these cases, therefore, the respondent-employers did violence to the basic principle set out in McCormick Longmeadow. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. As it has been found that the Respondent dis- criminatorily discharged Henry Finley, it must be or- dered to reinstate him, 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 dis- criminatory discharge . Backpay shall be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall in- clude interest at 6 percent per annum,as provided in Isis Plumbing & Heating Co., 138 NLRB 716. As the nature and extent of the unfair labor practices committed in- dicate the Respondent may hereafter resort to other and like unfair labor practices , it must also be ordered to cease and desist from in any other manner infringing upon the rights of its employees as guaranteed in the statute. Upon the basis of the above findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By discharging Henry Finley to discourage mem- bership in or activities on behalf of the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, by interrogating em- ployees concerning their union activities and the union activities of fellow workers, by telling employees that management has learned the identity of employees favor- ing the Union or attending union meetings, by threatening employees with loss of employment benefits to induce them to reject the Union, by promising raises as bribes for employees to reject the Union, and by telling employees it would be futile to join the Union because the Company would not sign a collective-bargaining agreement, the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I recommend that the Respondent, Vogel's, Inc., Little Rock, Arkansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or laying off its employees for having engaged in concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection. (b) Interrogating employees concerning their union ac- tivities and the union activities of fellow workers, telling employees that management has learned the identity of employees favoring the Union or attending union meetings, threatening employees with loss of employment benefits to induce them to reject the Union, offering raises as bribes for employees to reject the Union, telling employees it would be futile to join the Union because the Company would not sign a collective-bargaining agree- ment, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer Henry Finley immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he lay have suffered as a result of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Henry Finley 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 Train- ing and Service Act, as amended, after discharge from the Nrmed 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 the terms of this Recommended Order. (d) Post at its plant in Little Rock, Arkansas, copies of the attached notice marked "Appendix."s Copies of said notice, to be furnished by the Regional Director for Re- gion 26, after being duly signed by the Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.6 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges discrimination in employ- ment in violation of Section 8(a)(3) of the Act. 5 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." B In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: After a trial in which both sides had the opportunity to present their evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the Act VOGEL'S, INC. and has ordered us to post this notice and to keep our word about what we say in this notice. WE WILL NOT fire you because you joined a union or favor a union. Since the Trial Examiner found that we violated the law when we fired Henry Finley, we will offer him his old job back and give him backpay. WE WILL ALSO NOT interrogate you concerning your union activities or the activities of your fellow workers; WE WILL NOT tell you that we are spying on employees who go to union meetings ; WE WILL NOT threaten to take away your employment benefits, such as the Christmas bonus, because you join a union; WE WILL NOT offer to bribe you with raises to prevail upon you to abandon a union you may want; WE WILL NOT say that it is futile for you to join a union because we will not sign a contract. You are all free to become or remain members of Chauffeurs, Teamsters, and Helpers Local Union No. 575 878, affiliated with International Brotherhood of Team- sters, Chauffeurs , Warehousemen, and Helpers of Amer- ica, and we won't punish you in any way if you do. Dated By VOGEL'S, INC. (Employer) (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, 746 Federal Office Building, 167 North Main Street, Memphis, Ten- nessee 38103 , Telephone 534-3161.