Cain's Coffee Co.

CAIN'S COFFEE COMPANY Cain's Coffee Company and Gordon Griffin, an In- dividual. Case 16-CA-2870 February 15,1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On October 4, 1967, Trial Examiner Boyd Leedom issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the General Counsel and Charging Party filed exceptions to the Decision and supporting briefs. The Respondent filed a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 only to the extent con- sistent herewith. 1. The Trial Examiner found, and we agree, that Respondent violated Section 8(a)(1) of the Act by interrogating its employees concerning their union activities. 2. The General Counsel excepts to the Trial Ex- aminer's failure to find that Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Gordon Griffin. The Trial Examiner con- cluded that Griffin was discharged because of his operation of a motel (an outside business enter- prise) while working for Respondent, a decline in his sales, and his inability to get along with customers. We find merit in the General Counsel's exceptions. On June 9, 1966,1 23 of Respondent's 28 salesmen attended a meeting presided over by Gor- don Griffin to discuss grievances. At this meeting, the salesmen participated in a round table discus- sion of their complaints with the group voting on the I Unless indicated otherwise, all dates refer to 1966. 169 No. 109 819 merits of each grievance expressed. Those grievances mentioned included, among others, com- missions, cost of living, travel expense, vacation, and seniority. On or about June 11, General Sales Manager Harley Hutsell told employee Griffin that he was aware of the meeting held by the employees. At that time, Griffin agreed to Hutsell's suggestion that a meeting be scheduled for the following Satur- day so that the employees could present their grievances to Hutsell. On June 16, the grievances were presented to Hutsell, who made no promises, but did agree to take them under consideration. Ap- proximately 1 month later, without indicating what action would be taken with respect to the grievances, Hutsell came out to Griffin's route and accused him of holding another secret meeting. Griffin denied that such a meeting took place. The following evening Griffin went to the Teamsters Union and discussed with the union representative the problem employees were having in obtaining from Respondent an answer to the grievances. While there, Griffin signed a union card. Thereafter, Griffin and two other employees con- tacted Hutsell, requesting Respondent's response to the grievances. Hutsell informed them that Respondent was not then in a financial position to meet their demands. Griffin 'insisted that Hutsell tell the men of this decision. However, according to Griffin's testimony, Hutsell replied, "No, you do that." After Griffin informed them of Respondent's position, several of the employees responded, "Well, there's only one thing to do and that is to go union." On or about September 7, Respondent's pre- sident, Jack Durland, called each employee in- dividually into his office and questioned him about the Union. While being interrogated, Griffin in- formed Durland that he supported the Union because of the failure of Respondent to redress the grievances that were presented to management. A Board election was conducted on September 30. On November 12, Griffin was',discharged. In finding that Griffin was unlawfully terminated, unlike the Trial Examiner, we reject as pretextual Respondent's contention that Griffin was discharged because of his operation of a motel, a decline in his sales, and his inability to get along with customers. The record does not support the Trial Examiner's finding that the motel created "tension and concern" involving "serious financial problems" which interfered with Griffin's effective- ness as a salesman. 'On the contrary, the evidence reveals that the motel operation was a profitable venture with Griffin reinvesting the profits in the business. The mere fact that Griffin had borrowed money and has so far been unsuccessful in his at- tempts to sell the motel, at his price, does not justify 350-212 0-70-53 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the inferences that he was having "serious financial problems" and that these problems interfered with his work. In fact , the record is devoid of evidence establishing any relationship between the motel and Griffin's work performance. Underlying this defense is Respondent's claim that it has an unwrit- ten policy prohibiting employees from operating a private business . However, this assertion is highly suspect in light of the testimony of Griffin and other employees that they were not aware of such a pol- icy. Indeed , about a year before Griffin purchased his motel , the Respondent's president was involved in arranging financing for the private business of another employee , making no mention of such a policy. In any event , it is clear Respondent knew that Griffin was attempting to sell the motel at the time of his discharge. The Trial Examiner's reliance on Griffin's decline in sales is misplaced. For the past 14 years Griffin has been at or near the top in sales. In 1962, Griffin was named by the Sales and Marketing Ex- ecutives Club of Oklahoma City as a Distinguished Salesman. In recognition of his achievement, Pre- sident Durland sent Griffin a congratulatory letter. While his combined coffee sales declined from 1963 to 1966, so did the sales of the other salesmen in his division. However, in comparison, Griffin was first in sales in 1963 out of seven salesmen in his divi- sion, second in 1964 and 1965 , and third in 1966. A close examination of his third place finish, from January through November 1966 , shows that the highest man sold 205 ,280 pounds and the lowest sold 167,040 pounds, while Griffin sold 199,185 pounds. Also of significance is the fact that Griffin was next to the top of his division in total dollar sales at the time of his discharge . Further evidence indicating Respondent's lack of concern over Grif- fin's sales record is reflected in Durland's remark to employee Boren that his sales had declined and the bsence of any such comment by Durland to Griffin during the interrogations in September. Nor do we find merit in Respondent's claim that customer complaints were a reason for the discharge . Specifically , Respondent contends that complaints concerning Griffin were received from the Smith store, Thompson store, and Grider store. However, the matters arising at Smith 's occurred in the summer of 1965 and those at the Thompson store in 1963 , with no action thereon taken by Respondent until Griffin's discharge on November 11, 1966 . It is difficult to conceive that Griffin was fired on November 11, 1966, for something he did in 1963 and the summer of 1965. We conclude that these are too remote in time to have had any bearing upon Respondent's decision. With respect to the Grider incident, Moses, the manager of Grider, testified that the complaint concerning Griffin in- volved only his displaying more of Respondent's products than were needed . However, the record shows that Griffin was merely following the specific instructions of his supervisor who was concerned that Respondent might lose some of its product shelf space. In view of the foregoing, and Respondent's op- position to union organization as demonstrated by the unlawful interrogations, its knowledge of Grif- fm's leadership in concerted activity and support of the Union, and the timing of the discharge in rela- tion to the representation election, we find that Griffin was terminated because of his support of the Union and efforts on behalf of the employees in lodging certain grievances with Respondent. It is clear that Griffin's supposed derelictions became magnified in the eyes of Respondent when he told President Durland, in September 1966, that it was necessary for the employees to have a representa- tive to represent them. Accordingly, we conclude that the reasons given are pretextual and that Respondent discriminatorily discharged employee Griffin in violation of Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has further been found that the Respondent had dis- criminated against employee Gordon Griffin by discharging him in violation of Section 8(a)(3) and (1) of the Act. We shall therefore order the Respon- dent to offer the above-named employee immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniori- ty or other rights and privileges, and to make him whole for any loss of pay he may have suffered as a result of this discrimination against him, by pay- ment to him of a sum of money equal to that which he would have earned as wages and commissions from the date of the discrimination to the date of reinstatement, less any net earnings during such period, in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, together with 6 percent interest per annum, to be computed in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and the entire record in the case, we hereby make the following conclusions of law: 1. The Respondent is an employer within the meaning of Section 2(2) of the Act and 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 meaning of Section 2(5) of the Act. CAIN'S COFFEE COMPANY 3. By interrogating employees as to their union activities, Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act and, ac- cordingly, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging Gordon Griffin for discrimina- tory reasons, Respondent has engaged in an unfair labor practice in violation of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respon- dent, Cain's Coffee Company, Oklahoma City, Oklahoma, its officers, agents, successors, and as- signs, shall take the following action: 1. Cease and desist from: (a) Interrogating its employees about their union activities. (b) Discouraging union activities by discharging employees or discriminating in any other manner in reprisal for their support of and membership in a union. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclo- sure Act of 1959. 2. Take the following affirmative action which the Board deems necessary and appropriate to ef- fectuate the, policies of the Act: (a) Offer Gordon Griffin immediate and full rein- statement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges. (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Ser- vice Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Make the above-named employee whole for any loss of earnings he may have suffered as a result 821 of the discrimination against him in a manner com- puted in accordance with the formula set forth in the section of the Board's Decision and Order herein entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its place of business in Oklahoma City, Oklahoma, copies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by the Respondent's authorized representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous 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. (f) Notify the Regional Director for Region 16, in writing, within 10 days from the date of this Deci- sion, what steps have been taken to comply herewith. Z In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substitutedfor the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order 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 interrogate our employees about their union activities. WE WILL NOT discourage union activities by discharging employees or discriminating in any other manner in reprisal for their support of and membership in a union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to Gordon Griffin immediate and full reinstatement to his former or substan- tially equivalent position without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of our discrimina- tion against him. Dated By CAIN'S COFFEE COMPANY (Employer) (Representative) (Title) Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Ser- vice Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecu- tive 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, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 334- 2921. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BOYD LEEDOM, Trial Examiner: This case was tried at Oklahoma City, Oklahoma, on April 20 and 21, 1967. The complaint, dated February 23, 1967 (issued pursuant to a charge filed January 9) alleges that Cain's Coffee Company, herein called Respondent, had violated Sec- tion 8(a)(1) and (3) of the National Labor Relations Act, as amended, in that it had unlawfully interrogated em- ployees and unlawfully discharged its employee Gordon Griffin Thus the issues are (1) whether the conversations between the employees and Respondent's president, about the Union, are of the kind that violates the Act; and (2) whether the employee Griffin was discharged because of his union activity as alleged, or because of his un- satisfactory sales record, his difficulty with his customers, and outside business interests, all as claimed by Respondent in its defense of the 8(a)(3) allegation. The case grows in part out of the effort made by the General Drivers, Chauffeurs, and Helpers Local Union 886, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, to organize the Employer's driver-salesmen; Re- spondent is engaged in the business of processing, pack- aging, and selling coffee, tea, spices, and related food products; and in part from previous concerted activity by employees, without the aid of a union, as to grievances. On all the evidence adduced, on my observation of the witnesses as they testified, and after due consideration of the briefs filed by the General Counsel and the Respond- ent, I conclude on the basis of the findings of fact and the conclusions of law hereinafter set forth that Respond- ent violated Section 8(a)(l) of the Act by unlawfully in- terrogating employees, but did not unlawfully discharge the employee Gordon Griffin; and I therefore recom- mend that the allegations of the complaint as to violation of Section 8(a)(3) be dismissed. Findings of Fact and Conclusions of Law 1. JURISDICTION ; THE "EMPLOYER;" AND THE "LABOR ORGANIZATION" I find and conclude on factual allegations of the com- plaint, admitted by Respondent, that Respondent is en- gaged in commerce and is an "Employer" within the meaning of the law and that it will effectuate the purposes of the Act to assert jurisdiction herein; and that Local Union 886, named above, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The 8(a)(1) Violations About 2 or 3 weeks prior to the representation election held on September 30, 1966, Respondent admittedly called each of its driver-salesmen , comprising the voting unit, into the office of the president, Jack Durland, where he visited with each employee about the Union. While I conclude from the evidence set forth, and for the reasons hereinafter given, that these conversations constituted coercive interrogation of the employees under all the cir- cumstances , it is my opinion that this constitutes a bor- derline case between permissible "free speech" by the Employer and unlawful questioning. Three witnesses testified as to the substance of the con- versations that took place in the president's office. They were Jack Durland, the president; and two employees, Gordon Griffin, the dischargee , and Ben Boren, who quit his employment with Respondent a couple of months after the election. According to the president's own testimony the closest he came to "interrogating" the em- ployees was in this language: "You have wonderful fringe benefits, a wonderful pension plan, and my best judge- ment is that I don't understand what a professional man earning $1 ,000 a month would want to turn his business over to somebody else to represent him. But you do what you want to because that is your choice." While this lan- guage cannot literally be interpreted as a direct question, it literally is an open invitation to the employees to respond with some kind of statement respecting the Union, which if made would tend to disclose, truthfully or untruthfully, whether the speaker favored the Union or was against it. It is undisputed and I find, that the pres- ident prefaced the quoted language and his other com- ments with the statement that he did not care how each employee voted in the election and that he would not tell them how to vote because that was the prerogative of each. He further testified, and there is no dispute , that he said the same thing to each employee, some 36 in number, calling each singly into his office. CAIN'S COFFEE COMPANY Both employee witnesses indicated in their testimony that President Durland inquired directly how each felt about the Union. Griffin, the dischargee, said that Dur- land "asked me just what I felt like that the Union could do for me." Boren testified that Durland asked him if he had signed a union card and why. Griffin and Boren gave the impression while on the wit- ness stand that each would do the best he could to make a case against Respondent, and for discernible reasons. Thus, Griffin was engaged in a sharp dispute with Respondent, with a keen personal interest, on the issue of his discharge; and while Boren was trying to appear as a wholly disinterested witness filled with good will toward everybody, as I judged him, I gained a clear impression from his demeanor, and also from the evidence relating to his recent history of employment and his resignation therefrom, that he really was hostile toward his old em- ployer. Notwithstanding what I have said respecting the at- titudes of these two witnesses, and notwithstanding I re- gard Jack Durland as a fairly forthright witness, I do not discredit completely the testimony of Griffin and Boren, nor fully credit the testimony of Durland, respecting the conversations that took place about the Union between him and each of the employees he called in. I rather find and conclude that Durland's language was more nearly a direct question concerning the employees' attitudes toward the Union, than his own testimony indicates; and that his statements to Griffin and to Boren approximated in their meaning the language attributed to him in the testimony of each of these two. I make this finding partly because on careful analysis the conflict in the two ver- sions is not sharp, as previously suggested; and partly because Durland did not specifically deny the statements attributed to himby the other witnesses. In fact on cross- examination he answered "Yes" to this question relating to his conversation with Griffin: "... did you ask him what the Union could do for him?" It follows that I find and conclude Durland's state- ments exceeded permissible free speech, and constituted "interrogation" that invokes the safeguards set out in Blue Flash Express, Inc., 109 NLRB 591, as modified in subsequent decisions including Struksnes Construction Co., Inc., 165 NLRB 1062. Thus, the "interrogation" of the employer in this case to ascertain employee views and sympathies regarding unionism must meet the safeguards imposed by Blue Flash and Struksnes if the employer is found free of violating the employees' Section 7 rights; and it clearly did not. I have made this determination of unlawful interroga- tion not only on the substance of what was said, but because of conditions prevailing at the time. The first such condition is one heretofore noted, that in each instance the employee was called to the president's office for the purpose of discussing the union with the president. In cases' decided by the Board on objections to representation elections, it has been consistently recog- nized that if the place selected for interviews with in- dividual employees about the union is "the locus of final authority in the plant" (General Shoe Corporation, 77 NLRB 124) such interviews have sufficient impact on the attitude of the employee that even though nothing of a coercive nature is said by the employer, the election will be set aside for the reason that the interviews interfere with the employees' freedom of choice. See The Great Atlantic' & Pacific Tea Co., Inc., 140 NLRB 133; and Peoples Drug Stores, Inc., 119 NLRB 634. The impact 823 of private interviews recognized by the Board in the cited representation cases, has not, however, been fully trans- ported over into the area of unfair labor practices. That is to say, noncoercive statements by an employer to em- ployees individually called into "the locus of final authori- ty in the plant" in and of themselves have not been held by the Board to constitute violations of Section 8(a)(1). The circumstance, however, of such private interviews has been noted as a relevant factor in the resolution of the 8(a)(1) issue in a case such as this. E.g., Edward Fields, Incorporated, 141 NLRB 1182, enfd. as modified on other grounds, 325 F.2d 754 (C.A. 2); and Syracuse Color Press, 103 NLRB 377, enfd. 209 F.2d 596 (C.A. 2). A second circumstance given weight in my determina- tion that Durland's statements were unlawful is that, as to Boren, Durland mingled with his discussion of the Union, the subject of Boren's poor sales record, inevitably bring- ing to the mind of the,employee the fact that he was risk- ing his job by espousing the Union's cause against the wishes of his employer. I base the finding that Boren's un- favorable sales record was discussed, on the testimony of Boren, not really contradicted by Durland, and conclude that mixing this subject with the subject of the Union added to the coercive effect of Durland's inquiry as to Boren's attitude about the Union. I make the same find- ing and conclusion as to Durland's interjection of the motel into his "union" interview with Griffin. Respondent argues in its brief that two Circuit Court of Appeals decisions support Respondent's position that Section 8(a)(1) was not violated in cases involving factual situations almost identical with those in the case at bar. These cases are Banner Biscuit Company v. N.L.R.B., 356 F.2d 765 (C.A. 8); and N.L.R.B. v. Dale Industries, Inc., 355 F.2d 851 (C.A. 6). While there is room for dis- agreement that these cases are on all fours with the in- stant case, assuming that there is sufficient similarity in the facts to make the cited cases of precedential value, Respondent's citations do not support its position here in- asmuch as the Board held contrary to the court in each case; and Trial Examiners are bound by Board rather than court precedent intil the Board itself or the Supreme Court has reversed a Board decision. See Lenz Company, 153 NLRB 1399, and cases there cited. Because of all the foregoing I find Respondent in viola- tion of Section 8(a)(1). B. The Alleged Violation of 8(a)(3) Gordon Griffin was in the employ of Respondent as a coffee salesman from 1952 until November 12, 1966, when admittedly he was discharged. Respondent adduced substantial evidence, both oral and documentary, which I find and conclude establishes that Griffin suffered a marked decline in his sales beginning with the year 1964 and continuing to the time of his dismissal; that in the year preceding his discharge he actively participated in the management of an outside business enterprise and that this was contrary to com- pany policy and detrimental to his sales effort; that he had serious difficulty with certain of his customers, one of which had for years purchased very substantial quantities of Respondent's products; and that Griffin was discharged because of these three conditions and not because of his union or other concerted activity. I make these findings and conclusions for the reasons following, and because of the credibility resolutions hereinafter 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made against the General Counsel's witnesses and in favor of Respondent's on points of significant conflict. I also find and conclude, however, from credible evidence that Griffin was active in the employees' con- certed action in lodging certain grievances with manage- ment and that he subsequently affiliated with the Union; furthermore, that Respondent had knowledge of this ac- tivity at the time of Griffin's discharge. I also recognize that the timing of the termination, approximately a month and a half after the representation election, makes Respondent's claims as to the real cause suspect, but I find and conclude that the General Counsel has not sustained his burden of proving by a preponderance of the evidence that Griffin would not have been discharge but for his concerted activity. General Counsel's Exhibit 3 is a copy of a memoran- dum written by Durland to Griffin on October 21, 1966, reminding Griffin that a year previously he had been ad- vised it would be necessary to dispose of a motel he was running; that the subject had been discussed with him within the past month; and requesting a written explana- tion of the action he was taking and the prospects of early disposal of the business. General Counsel's Exhibit 4 is a copy of Griffin's response dated October 30. (Respond- ent's Exhibit 12 is the original.) In this longhand memorandum written by Griffin, this line appears: "I know I am running 7% in the red from Jan thru Sep- tember and I am certainly not proud of this record ...." On the witness stand Griffin swore that he had not writ- ten the "7%" in the letter and that it had been inserted by someone else, the implication being that the alteration was by someone on Respondent's staff. To complicate this situation, counsel for the General Counsel argues in the brief that this document was altered as Griffin testified. I reject both the testimony and the argument. There are several very clear indications that the characters in question, i.e., "7%" were entered in the ex- hibit when it was written by Griffin, and these indications are not dependent on either handwriting or altered docu- ments expertise. Thus the down stroke on two other sevens in the same instrument, admittedly made by Grif- fin, ends at the line, just like the one in question, whereas the figure seven, as often, and also accurately executed extends below the line. It seems unlikely that an inex- perienced forger of documents would have observed this inconspicuous characteristic in the manner Griffin makes a seven, and could have imitated it so accurately. Perhaps still more persuasive evidence that the seven was placed in the instrument by Griffin, is the fact that if it were obliterated from the written page, the line of writing in which it appears is inordinately short with no reason whatever appearing for Griffin to have gone to the next line to write the very short word "in." If in fact Griffin did not put the "7%" in his memorandum at the end of the line in which it appears, then he left blank space (where the next word "in" might have been placed), which in various other lines of the memorandum accommodated the word "letter," all but the first half of the letter "s" in the word "situation," nearly all of the two words "and would," and on still another line the two words "to dispose." Counsel for the General Counsel, in the brief, takes from the record the figures 7.2 percent, the measure of Griffin's loss in sales as of December 1966 points out that the disputed letter in which the "7%" appears was written on October 21, 1966 (antedating the December figure), and then asks the question "How could he [Griffin] have known the exact percentage his sales were off?", imply- ing that the disputed "7%" was necessarily a reference to the December figure of 7.2 percent. This overlooks the fact that each salesman's sales record was made known at each weekly sales meeting and this argument becomes particularly pointless in view of the fact that the very text of Griffin's disputed letter relates his sales deficit to a period "from Jan thru September" and not to the December "7.2%" which forms the essential point of Counsel's argument. It seems strange that the quite inconsequential dispute would develop over the "7%," when documentary evidence offered by Respondent establishes beyond any doubt that Griffin did suffer substantial sales losses both in volume of product and in dollar value, especially without any evidence of probative force that the written instrument offered in evidence was altered. In the light of the other valid documentary evidence offered concerning sales records of all salesmen, showing decreases on the part of Griffin, it is highly unlikely that anybody con- nected with Respondent's management would insert "7%" in Griffin's letter for no sensible purpose. Counsel for General Counsel seeks to make a substan- tial argument on the purely naked claim of Griffin in his oral testimony that he did not suffer any consequential reduction in sales in the period from 1963 to 1966 when he was discharged. When Griffin was pressed on cross- examination for valid statements as to where the records might be wrong, showing substantial decreases in his sales, he was very evasive, revealed a serious lack of knowledge as to accuracy of records, argued that copies of Respondent's W-2 forms on income taxes were errone- ous, and concluded more than one round of questions on cross-examination with a statement that he could not be precise "because he had figures running out of his ears." Among other exposures of total lack of accurate knowledge on the matters about which he testified, he sought to give the impression that there had been no sub- stantial change in coffee prices during the time that he was with the Company, that there were mere fluctuations. The undisputed credible evidence shows that the com- parable figures as to one type of coffee varied from 65 cents in 1963 to 79 cents in 1966, and as to another type from 73 cents in 1963 to 84 cents in' 1966. This position taken by Griffin was apparently for the purpose of meet- ing Respondent's contention that his reduced dollar volume in sales in 1966 did not reveal the total reduction as to pounds sold because each pound brought more in 1966 than it did in 1963, the years involved in the com- parison of his sales. The record made in the effort to prove the 8(a)(3) issue, as to Griffin's loss in sales, and coffee prices as briefly referred to above, under any fair reading quite clearly reveals a lack of substance in the evidence. There should have been no time wasted in this case in the taking of evidence or in unproductive contention and argument as to the price of coffee. The same is true about the territory that Griffin served over the years in question. He sought to rest a part of his loss in sales on a reduction in his terri- tory, but his testimony was wholly lacking in any precise information. The only reliable and also persuasive evidence in the case on the subject clearly establishes, and I find that there was no change in his territory in the significant years 1963 to 1966. The low quality of the CAIN'S COFFEE COMPANY 825 "proof" in these several areas weakens the whole struc- ture of the case on the issue of Griffin's discharge. Griffin also testified that when he was discharge by Harley Hutsell, Respondent's general sales manager, he was not told that one of the reasons was because of his unsatisfactory sales record. This is not only contrary to the positive and credible testimony of Hutsell who im- pressed me as being a reliable witness, but it is also con- trary to the very persuasive and credible evidence of a fel- low employee Richard M. Davis who had known Griffin for 25 years, had worked with him for Respondent for the same span of years running from 1952, and had also been involved in the concerted action and union activity that engaged Griffin in behalf of the employees. It is inherently incredible that Hutsell, the sales manager, would not have relied on Griffin's declining and bad sales record as one of the grounds for discharge, whether the grounds stated were pretextual or real. I credit Hutsell and discredit Griffin's denial that the sales record was mentioned at the time of his discharge. Hut- sell's testimony with respect thereto is entirely believ- able. The witness Davis impressed me most favorably as a truthful and dependable person and his testimony that, on the night Griffin was` discharged he called on the telephone and told him of the three reasons given Griffin by Hutsell as to the grounds of his discharge, including as one "his sales record"; and that when Hutsell gave him the three reasons, i.e., the bad sales record, the outside business activity, and the difficulty with his customers, that he, Griffin, asked Hutsell why he did not tell him the honest reason, that he was being discharged because of his union activity. I have not the slightest doubt that this telephone conversation as recited by Davis in his testimony is the substantial truth. The record fairly reveals and I find that in addition to a bad sales record at the time of his discharge, Griffin had for a year permitted the operation of a motel, which he had purchased,' to interfere with his effectiveness as a salesman for Respondent. This evidence is not notable for its specificity as to just how the operation of the motel adversely affected Griffin's salesmanship, but the record clearly warrants an inference that the very real difficulty Griffin had with the motel, first in the purchase with a partner, buying', the partner out, trying more than one means of management, and finally moving into a degree of management' himself with his wife, would inevitably create a tension and concern that interfered with full at- tention to his job with Respondent. I draw such inference. Furthermore, the record reveals, and I find, that the necessity of disposing of the motel was adequately brought to the attention of Griffin at least a year before his discharge, that he was dealt with fairly in this connec- tion, and that he himself recognized this in his letter to Durland (G.C. Exh. 4, Resp. Exh. 13) in which he said "I can understand your concern over this situation and I ap- preciate the patience you are extending me, and would like for you to know that I am and will endeavor to dispose of this at the first decent offer." The third ground named by Respondent to have formed a part of the reason for Griffin's discharge was his inabili- ty to get along satisfactorily with certain of his customers during the latter months of his employment. The testimony of the customers themselves, which I credit, establishes the validity of this ground. While it can be ar- gued that store owners, - other employers, might enter into a conspiracy on a pretextual discharge of an em- ployee seeking to bring a union into the plant of another employer, such speculation loses all force in the light of the testimony of John H. Smith, proprietor of Smith's Grocery, well along in years and somewhat frail in ap- pearance. He testified concerning Griffin that it "got to where I just couldn't get along with him at all. He come in there one day, and I told him, I said, `you pick everything up with Cain's name on it in this store and take it out of here.' And he said, `No, I'm not going to do it.' I said, `I believe you will,' and I just go around there with a little old pistol in my pocket about two-thirds of the time, a lit- tle old .25, and he said, `If you pull that gun on me I'll sue you for every dollar you have got.' I said, `Pal, I'm not pulling my gun on nobody.' He said, `If you'll just come out here in the back yard, I'll beat your head smooth off."' I credit this testimony. Clearly Griffin was failing as an effective sales representative of Respondent. Griffin's difficulty with two other customers is not so colorfully revealed in the record, but as to one at least, Grider's Discount Foods, the detriment suffered to Respondent's business was undoubtedly greater. I find and conclude from the evidence adduced by Respondent, which I credit, that serious difficulty did arise between Griffin and three customers, one of them Grider's, Respondent's best account in the area, and that these dif- ficulties occurred at times reasonably related to the tim- ing of Griffin's discharge. Notwithstanding all that has been said of the unrelia- bility of Griffin's testimony, he certainly gave no impres- sion of deliberately lying. Rather he appeared to be a per- son of good intent, with an excellent sales record in the past, but now harried and harrassed for some reason-possibly with all the unhappy experience with the motel which involved him in serious financial problems; and was doing the best he could, with what he had to go on, to hold a job that supplied much needed in- come. Thus his recital, while no better support for findings of fact than deliberate perjury would be, was not that, but rather inaccuracies that conformed to what he wanted the facts to be, and possibly thought they were. By reason of all the foregoing I find and conclude that Griffin's declining sales record, his interest in the motel, and his difficulties with his customers, merge to cause good and adequate grounds for his discharge. This finding and conclusion however, does not dispose of the 8(a)(3) issue. The question remains unresolved as to whether these grounds were the actual reason for the discharge, rather than Griffin's concerted activity, as previously stated. I resolve this point against Griffin on the basis of what follows. In the first place it is difficult for any reasonable person to understand why in the light of the evidence adduced by Respondent, any employer would continue the employ- ment of Griffin. Secondly there is no credible and persua- sive evidence, apart from the timing of the discharge, that tends to link the discharge with Griffin's concerted or union activity. By stipulation of counsel an affidavit of the wife of Ben Boren, the employee hereinbefore mentioned, was ad- mitted in evidence in lieu of her testimony. This is General Counsel's Exhibit 15. Its purpose apparently was to establish that Respondent discriminated against Griffin in discharging him in part because of his outside business interests. The affidavit states that Durland, Respondent's president, had told Mrs. Boren that her ownership of several beauty parlors would not in any way interfere with her husband's job with Respondent; and in 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conformity with other evidence adduced by Respondent, the affidavit tends to establish that Respondent's rule as to outside business interests had nothing to do with ownership by a relative of an employee , or even the em- ployee himself, but rather with participation in the management thereof. I find and conclude that this bit of evidence will not support , or even tend to support, the General Counsel's case on the 8 (a)(3) issue. The witness Ben Boren testified that when he was called into the office of President Durland for a discus- sion about the Union, Durland told him that no one had ever been fired from Respondent's organization for low sales and that the only reason that anyone had ever been fired was for stealing , and that even then they had to "steal big." I find this wholly incredible . Not only is the substance of the statement inherently unbelievable, but it is in direct conflict with the credible evidence of Sales Manager Hutsell respecting discharges of other em- ployees because of poor sales records , and resignation of still others because of pressure put on them to improve their sales. Respondent's Exhibit 8 lists the names and dates of termination of such other employees . Thus, this testimony produced in behalf of the General Counsel ob- viously for the purpose of showing a discrimination against Griffin in claiming a bad sales record as part of the reason for his discharge is wholly lacking in probative value. The whole of this witness' testimony becomes suspect with his denial that either the counsel for the General Counselor Gordon Griffin asked him to testify in the case. His testimony in this connection would seem to seek to leave the impression that he came into the courtroom as a complete volunteer and sought the chance to take the stand. His partisanship and quite complete failure to furnish solid , helpful testimony is revealed in the answer "Do you want it honestly or the figures they gave me?", when asked about the extent of his own decrease in sales. The record reveals that Griffin and Hutsell had two conversations about employee grievances after Hutsell learned that the employees had meetings in this connec- tion. Griffin testified that in one of these conversations Hutsell accused him of cursing the Company up one side and' down the other and that finally, as a final blow, he shook his finger in front of Griffin's nose and informed him that he wanted the rabble rousing to "cease and de- sist" as of right then. I discredit this testimony of Griffin and classify it with other gross inaccuracies in his testimony , hereinbefore discussed. I infer that it is in the record too for the purpose of establishing intense an- tagonism against the employees ' concerted action and thus to supply some kind of support for the claim that the Company discriminated against Griffin in retaliation. I find no such support in this part of the record. As stated I fail to find in the credible evidence in this case any positive support , apart from the timing, for General Counsel's claim that Griffin was discharged because of his concerted or union activity . On the other hand, as previously noted, there is evidence to the con- trary, apart from the good cause shown . There are the dismissals of other employees for bad sales records similiar to that of Griffin, some such action occurring close to the time of Griffin's discharge ; and Richard M. Davis, equally active with Griffin in the employees' con- certed action over grievances and union adherence, was still in Respondent's employ at the time of the hearing. Davis had been elected secretary (and Griffin chairman) of the employee group , and Davis acted as the Union's observer at the election. The record reveals no claim or contention that there was discriminatory action against any other of the employees who engaged in concerted ac- tion as to grievances, or in union activity. Thus, it may fairly be said that the weight of the credible evidence in the case is actually against the claim of discriminatory ac- tion as to Griffin; and so I find and conclude that the General Counsel has failed to prove a case on the 8(a)(3) issue by a preponderance of the evidence. Therefore the allegation of violation of Section 8(a)(3) of the Act should be dismissed. III. THE REMEDY Having found that Respondent has engaged in unfair labor practices , I shall recommend that it cease and desist therefrom and take certain affirmative action more fully set forth in the Recommended Order that follows , includ- ing the posting of an appropriate notice to effectuate the policies of the Act. [Recommended Order omitted from publication.]