Squibb Beechnut, Inc.

DOBBS HOUSES 675 Dobbs Houses, a Division of Squibb Beechnut, Inc., and American Bakery and Confectionery Workers Interna- tional Union, AFL-CIO, Local 111. Case 16-CA-3679 May 22, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN AND JENKINS On February 4, 1970, Trial Examiner Anne F. Schlez- inger issued her Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices as alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision together with a supporting brief. The General Counsel filed a brief in reply to the Respond- ent's' exceptions, and the Respondent filed a response to the General Counsel's reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exam- iner 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 this case, and hereby adopts the Trial Examiner's findings,' conclusions, and recommendations. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Dobbs Houses, a Division of Squibb Beech- nut, Inc., Dallas Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. her 30, 1969. The complaint alleges that Dobbs Houses, a Division of Squibb Beechnut, Inc., herein called the Respondent, discharged Jesse Johnson, Jr., because of his union membership or activities, and threatened, inter- rogated, and promised benefits to employees to discour- age their union membership or activites , in violation of Section 8(a)(1) and(3) of the National Labor Relations Act, as amended. In its answer, duly filed, the Respond- ent denies that it has committed any unfair labor practice. Pursuant to due notice, a hearing was held before me at Dallas , Texas, on October 29, 1969. All parties appeared at the hearing and were afforded full opportuni- ty to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. Subsequent to the hearing, the General Counsel and the Respondent filed briefs which have been fully considered. Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a corporation organized under and existing by virtue of the laws of the State of Tennessee with its principal place of business in Memphis, Tennes- see, has at all times material herein been engaged in the operation of airline catering services throughout the United States. In the course and conduct of its operations at Love Field Airport, Dallas, Texas, the only facility of the Respondent involved in this case, the Respondent annually ships products valued in excess of $50,000 to points outside the State of Texas, and received goods valued in excess of $50,000 directly from States other than the State of Texas. The Respondent in its answer admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED The Respondent in its answer admits, and I find, that American Bakery and Confectionery Workers Inter- national Union , AFL-CIO, Local 111, is a labor organiza- tion within the meaning of Section 2(5) of the Act. ' In finding unlawful interrogation by Supervisor Volkland, the Trial Examiner inadvertently referred to Thompson rather than Volkland. We hereby correct this inadvertent error and find that Volkland' s interro- gation of Benavides constituted a violation of Section 8(a)(1) of the Act TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Trial Examiner: Based upon a charge filed on July 22 and amended on September 3, 24, and 30,1969, by American Bakery and Confection- ery Workers International Union, AFL-CIO, Local 111, referred to herein as the Union or the Charging Party, the General Counsel, by the Regional Director for Region 16 (Fort Worth, Texas), issued a complaint dated Septem- III. THE UNFAIR LABOR PRACTICES A. The Discharge of Johnson 1. Johnson's status Joe Davis, the general manager of the facility here involved, testified that there are about 166 employees and "about eleven" supervisors. The parties stipulated to the supervisory status of Davis and of David Myers, the assistant manager; R. E. Thompson, supervisor of morning shift; Albert Volkland, supervisor of hot food line and bakery service; and Robert Taylor, night supervi- sor. The Respondent claimed that several others were also supervisors within the meaning of the Act, and described them at the hearing as follows: "Mr. John 182 NLRB No. 95 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hieatt, the supervisor of the cooking and hot foods section, Hazel Ritchie, supervisor of the cold food department, Albert Johns, supervisor of equipment and equipment coordination, Robert Thompson, the supervi- sor of the morning flight loaders , James Sears, the supervisor of the midnight shift, Robert Tupper, the supervisor of the flight loaders in the afternoon, the p in shift, Robert Taylor, a relief supervisor Miss Cyrus, supervisor of the dish room department The Respondent also maintains that Johnson at the time of his discharge was a supervisor within the meaning of the Act The General Counsel contends that Johnson performed leadman functions but had no statutory super- visory authority Johnson began to work for the Respondent in August 1965 in the bake shop department, which prepares baked products and desserts He was a helper to Grady Smith, whom Johnson described as the "lead" baker, until about June 1967 when Smith was promoted and Johnson replaced him One man, Ruben Davis, and two women worked in the bakeshop with Johnson Either of the men made the rolls, which involved use of equipment too heavy for the women to handle The women generally prepared and dished out the desserts, and the two men also at times did so The amount of food to be prepared was determined from a "count board" on which a dispatcher posted the numbers of first-class and tourist- class passengers for each flight All four individuals in the bakeshop shared the cleaning chores, the women cleaning their work tables while Johnson and Ruben Davis took turns in cleaning the oven and mopping the floor Johnson and Ruben Davis also occasionally helped on the trucks taking food to the airplanes While Johnson admitted that it was his responsibility to see that the food was "on specification," was "made right," and was "put in the dish right, not too much and not too less," he maintained that all four individuals in the bakeshop did generally the same kind of work, that each knew what duties to perform based on directions from management and the numbers posted on the count board, and that the work was simple and routine as all desserts and baked products were made from written recipes and in large part from prepared mixes He testified further that he helped train new employees as did other experienced employees, but that he exercised none of the supervisory functions set forth in the Act General Manager Davis testified that Grady Smith had been the "head" baker, that Johnson "was pretty much in charge of the bakeshop at the time" and that "he was made even more so" when he replaced Smith as "head" baker, that he was given an increase at that time from $1 60 to $1 70 an hour,' and that, while Johnson did manual work, he also exercised supervisory I General Manager Davis also testified that Johnson was increased from $ 1 80 to $2 55 an hour in August 1968 when the Respondent changed from a 6 to a 5 day week that Ruben Davis then received about two twenty five two twenty or somewhere along in there that the two women received $ 1 65 an hour and that all those classified as supervisors are paid between $2 55 and $2 90 an hour Davis and Myers are salaried authority over the other three individuals in the bake- shop Johnson had never recommended anyone for hire and he admittedly played no part in the hiring process, but was merely introduced to new employees after they were hired as "head" or "lead" baker He had never discharged an employee There were no layoffs in that department so there was no occasion for him to be consulted about employees to be laid off He admittedly could not authorize raises for any employees General Manager Davis testified in general terms that Johnson exercised various supervisory powers, but admitted he could not recall specific occasions when Johnson did so Assistant Manager Myers, who was more familiar than Davis with the operation of the bakeshop, testified that Johnson had authority to repri- mand employees and had done so frequently He admit- ted that such "reprimand" was "not the kind that would be considered real serious," and referred to Johnson telling an employee , for example , that she was putting too much dessert in a dish Myers also testified that at Johnson's request Josephine Taylor was no longer permitted to work in the bakeshop Johnson denied that he ever made such a request, and pointed out that Josephine Taylor worked elsewhere and was sent to help in the bakeshop only when needed, and Myers admitted she had worked in the bakeshop only occasion- ally, and that he did not recall how often as the "number of occasions varied according to our business needs "2 Davis and Myers both testified that Johnson worked directly under their supervision whereas Johnson claimed that any of several admitted supervisors could and did supervise his work Davis, who testified that Johnson could request that particular employees be transferred to the bakeshop, could not recall that Johnson ever did so On the other hand, Supervisor Taylor testified that Johnson had asked him to transfer employees to the bakeshop when extra help was needed Davis and Myers both testified that Johnson could authorize bake- shop employees to leave early and could require them to work overtime or on their day off Johnson denied this No records were placed in evidence showing time off or overtime pay based on authorization by Johnson Davis and Myers both testified also that Johnson attended management meetings , which Myers said were held more often than twice a month Johnson denied that he ever attended any meetings other than those for all employees Supervisor Thompson testified that he attended manage- ment meetings, that he had been in such a "management meeting when Jessee Johnson was in attendance I wouldn't say frequently It was when Mr Davis saw necessary to straighten out any discrepancies that was happening " Later, when asked by counsel for the Respondent whether various named individuals were present at such meetings, he replied "Yes, sir" to each name including that of Johnson Pins were worn by various categories of personnel, the color indicating their status At the time of Johnson's ' Josephine Taylor who is the wife of Supervisor Taylor was not called to testify DOBBS HOUSES discharge, employees wore black pins, lead personnel black and red pins, and supervisors white pins marked "Supervisor." Johnson originally wore a black pin and 'was wearing a black and red -pin at the time of his discharge. He never wore a white pin or one marked "Supervisor." Johnson was succeeded by Volkland, whose supervi- sory status was stipulated. Volkland testified that he was "Supervisor of the bake shop" but, when asked by counsel for the Respondent if he was "known as head of the Bake Department, or bake shop." he replied "Yes, sir." The complaint lists him as "Supervisor of Hot Food Line and Bakery Service,"3 and in the Respondent's answer this is admitted " as alleged in the Complaint." Moreover, as shown in Section B.2(a) below, Volkland was an admitted supervisor before John- son's discharge. Volkland testified that he wore a white pin, and that he did not recall what kind of pin Johnson wore. I find the testimony presented by the Respondent as to Johnson' s alleged supervisory status vague, contra- dictory, and unconvincing. I found Johnson a candid and honest witness, and credit his testimony as to his functions -while in the Respondent's employ. I find, therefore, on the basis of credited or undisputed testimo- ny, that Johnson exercised some leadman functions and responsibilities in routine ` matters not requiring the use of independent judgment , but that he did not possess any of the indicia of supervisory status set forth in the Act. Accordingly, I find that Johnson.was not a supervisor but an employee within the meaning of the Act.4 2. Johnson's union activity; Respondent's knowledge thereof The Union began organizing the Respondent's employ- ees in late March or early April 1969. The Respondent's officials were aware early in April of the union campaign as some of them, including General Manager Davis, observed representatives of the Union parked near the premises . On one occasion, Davis testified, he saw them follow a station wagon as it left the premises with "at least five" employees in it . Davis could recall the identity of only three of these employees, Doug Davis, Larry Jernigan, and Alfred Johnson, whom he thereupon assumed to be active in organizing the Union. While he could not recall who the other employees were, he testified that Johnson was not one of them, but did not explain why he noted Johnson's absence at that time. Johnson signed a union card on about April 18, and solicited a number of other employees to sign cards. He testified that he engaged in such solicitation during working hours as well as on' his free time as there ' Although there is considerable variance in the record as to superviso- ry designations, it appears that all the individuals stipulated to be supervisors as well as those the Respondent claimed to be additional supervisors, except Johnson, had job titles designating them as "Supervi- sor," the word which appeared on their white pins " See Marinette Marine Corporation, 179 NLRB No 102 677 was no rule, prohibiting such conduct. He also testified that on Tuesday, April 22, after asking Supervisor Taylor for some pecans, he asked what Taylor thought about the Union; that Taylor replied he thought the boys were crazy; that Johnson argued :it was a good thing and would help all concerned', including supervisors, and asked if Taylor would sign a card;-and that Taylor looked at the card, said he would be back- later to sign one , came back later and asked to see the card again, returned it to Johnson, and said he would sign one before he left. Johnson, further testified that he passed out more cards that day at lunchtime and when the evening shift came on; that he was in the dishroom trying to get Sanders and other employees to sign cards when Sanders told him Assistant Manager Myers was watching him;5 that Johnson looked at Myers and said it did not -matter because 51 percent of the employees had, signed cards, enough to have an election; and that Myers said nothing but went to Davis' office, which was about 8 or 10 feet from Johnson's work place, came out of the office in about 15 minutes and said Davis wanted to see Johnson, and Johnson followed Myers to the office and was discharged as described below. Taylor admitted that Johnson had asked him if he wanted to sign a card. He testified' that he said "No," and, when asked if Johnson said anything further, replied "no, not really." He testified further that he could not recall other remarks in the conversation to which Johnson had testified; that he did not-report this conver- sation to management ; and that he had no knowledge as to the reason why Johnson' was terminated. I. found Johnson's testimony more reliable than that of Taylor, and I credit Johnson's description of this conversation. Further, as I found Taylor's testimony in this matter evasive and equivocal, I do not, -in light of the total record, credit his denial that he reported this incident to management. Myers denied that he had seen Johnson distributing union cards, and then added, "Not that I remember." He also testified that, while he had not seen the union people "hanging around," Davis had told him about them, but no one-'had told him Johnson was handing out cards. Myers admitted that he summoned Johnson to Davis' office, but could not recall whether Davis came out of the office and aked him to do so or if he was already in Davis' office. He testified that he did not ask why Davis wanted to see Johnson as he knew he would find out, and then admitted that he had an idea why Johnson was being called to the office. I do not credit Myers' vague and self-contradictory denials, and find, based on all the relevant circumstances, that he observed Johnson soliciting employees to sign union cards, and that he promptly so reported to General Manager Davis. I likewise, on the basis of all the evi- dence, do not credit Davis' assertions that he was not told by Taylor, Myers, or anyone else that Johnson was distributing union cards, and that he had no knowl- S Sanders was not called to testify 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD edge at the time of Johnson's discharge that Johnson was active on behalf of the Union 3 Johnson's discharge On Tuesday , April 15 , two women employees had a fight The aggressor was Pauletta Smith Johnson, who had been married to Johnson for about 2 years The Respondent , however , had not been notified of the marriage and, at the time of the hearing , Pauletta was still designated in its employment records as Pauletta Smith The other woman in the fight was Lillie Tolliver, a former "girl friend" of Johnson Johnson admitted that the women were fighting about him When he saw them fighting , he attempted to break it up , as did General Manager Davis and others After the women had been separated , Davis told Johnson to take Pauletta home, which Johnson did Davis then discussed what had occurred with Tolliver The following morning , Wednes- day, Davis telephoned Pauletta and told her she was discharged , and he suspended Tolliver for 3 days," but he said nothing about the fight to Johnson Wednesday and Thursday were Johnson 's days off He returned to work on Friday , and worked from Friday, April 18 through Tuesday , April 22 , until, as described above , he was summoned by Myers to Davis' office In the office , Johnson testified , Davis said the fight between the two women revolved around Johnson, although Johnson protested that "I wasn 't fighting any- body ," Davis said Johnson had been warned when he engaged in a fight with another employee , as he admitted- ly did about 4 years earlier , that he would be discharged if he was ever involved in a fight again , this fight was about Johnson and so, despite Johnson 's protests that he did not feel he was responsible for the actions of others , Davis was letting him go , Davis also stated that if Johnson did not go back to his job or start trouble , he would send Johnson his pay for 2 weeks' vacation , when Johnson asked what trouble Davis was referring to, Davis said , "Start any trouble , come back on the job , passing out no cards, pick up your check, or anything at all", and , finally , Johnson mentioned that he had some rolls on the table , but Davis told him to "leave them and go ahead on," whereupon Johnson changed his clothes and left Myers testified that during the week following the fight Davis discussed the fight with him, and said that he had investigated "all aspects of the fight" and had discharged the two girls Myers testified further that he felt sure Davis had also discussed it with Johnson, that the decision to discharge Johnson was reached at the time Davis discharged Johnson , and that he did not know what took so long Regarding the discharge conversation , Myers testified "Of course , this was right after a fight that evolved around him, Jesse ", Davis "reminded him that he was in a fight some time back, and he told him that if he was ever involved in another fight he would lose his job the fact that he was involved in this fight , or was the principal figure in this fight, I'll say, that that was the reason for his termination",7 Johnson "kind of shook his head and said `I can't see that,' " and "That was about all that Jesse had to say", Davis replied "Well, that is your privilege But that is the way I see it", and the conversation concluded with Davis telling Johnson that "as a courtesy he would send his check by another employee," and that "he would pay him for his full vacation " Myers said nothing during this interview General Manager Davis testified that Johnson helped break up the fight between the two women, that he told Johnson to take Pauletta home and Johnson did so, that he discussed the fight immediately after that with Tolliver and "may have talked to [Supervisor] John Hieatt about it" but was not sure, and that he did not discuss it with anyone after that He also testified that on the morning after the fight he discharged Pauletta and gave Tolliver a 3-day suspension, that Tolliver reported on Tuesday, April 22, that she would be out longer because she had a broken collarbone, that he decided to discharge Johnson when he heard how badly Tolliver was hurt, that although he had not discussed the fight with Johnson at any time between the fight and the discharge, he had already decided to discharge Johnson when he sent for him, and that Johnson was discharged, as stated on his termination slip, for "causing a fight," which was admittedly the first time an employee had been discharged for this reason Davis apparently did not say anything to Johnson about Tolliver's broken collarbone His testimony about the discharge conversa- tion was as follows Well, I told him that the more I found out about the fight, and the reason for the fight- well, that I was going to discharge him I reminded him of an incident that occurred back pretty soon after he first went to work He had not been there more than, oh, I would say less than six months when he had another fight I promised him at that time that I would let it go that time, but that I would never let him get away with anything similar to that again So, I told him that because of this, and because of the more I found out about this fight, what brought on the fight, the more I was convinced that there were going to continue to be problems if I let him continue to work So, I told him that I was going to let him go That was it Of course he disagreed that he was responsible for it But I told him that the only way I could see it was that he was responsible I told him that he would get his normal vacation pay, two weeks vacation pay And that it would be the following Wednesday before he would get it And also I told him that as a courtesy to him we would let Ruben carry his check that was due the following day I told him that we could mail his vacation pay to him At another point in his testimony Myers stated that Davis had warned Johnson at the time he was involved in a fight that he would be terminated if there was any more of it fighting because of you h Neither Pauletta Johnson nor Lillie Tolliver was called to testify an apparent attempt to broaden the terms of the warning DOBBS HOUSES Jim Henry had been employed by the Respondent about a year, was terminated on April 8, 1969, and at the time of the hearing was living in Houston. On about May 1, while Henry was still living in Dallas and had been injured at work, Supervisor Taylor visited him at home. Henry testified that he and Taylor had been friends about 2 years; that he heard from his sister, a former employee of the Respondent, that John- son was discharged so asked Taylor about it; that Taylor "told me that Jesse was going around passing cards, trying to get the employees at Dobbs House to sign, and trying to get the union in"; that when Henry said "That was no reason to get fired," Taylor replied, "Well, you know how they are out there. . . . Mr. Myers saw him when he was, going around giving the cards to the employees to sign." Henry testified further that Taylor did, not mention the fight. Taylor denied that' he and Henry were friends but admitted visiting him after Henry had been injured. Taylor could not recall when this occurred, whether before or after John- son's discharge, but testified he knew they did not discuss Johnson, and that he still did not know at the time of the hearing why Johnson was discharged. I found Henry's testimony more convincing than that of Taylor, and credit Henry's description of this conver- sation. 4. Concluding findings The Respondent maintains that Davis discharged John- son for "causing a fight," and that Davis had no knowl- edge at -the time of the discharge of Johnson's activity on behalf of the Union. I have found above, however, that both Supervisor Taylor' and Assistant Manager Myers knew Johnson was soliciting signatures to union cards, and that Davis was informed of Johnson' s union activity. This is further demonstrated by the timing of what occurred. After Myers observed Johnson solicit- ing signatures , he went immediately to Davis' office and minutes later summoned Johnson to the office where Johnson was discharged. Davis admitted that he had already decided to discharge Johnson when he had John- son called to the office. Myers admitted that he had an idea, when he summoned Johnson to the office, what was about to occur, although Davis indicated in his testimony, contrary to that of Myers, that he had not discussed the fight with Myers, who was not at work when it occurred. The decision to discharge John- son was reached in spite of the facts, admitted by Davis, that Johnson's participation in the fight was only to break it up, that he took Pauletta home as Davis directed him do do, and that Davis during the following week made no mention of the fight to Johnson. And the decision was carried out even though Johnson pro- tested at the' discharge interview that he did not fight anyone and should not be held responsible for the con- duct of other employees. Davis explained in his testimony that he discharged Johnson on April 22 because of the seriouness of Tolliv- er's injuries as he was informed on that day that Tolliver had a broken collarbone. There was no mention in 679 the discharge interview, however, 'of Tolliver' s injuries, and Myers made no reference in his testimony to a broken collarbone. Moreover, Davis did not explain why this information warranted the summary discharge of Johnson, after years of satisfactory service, a week after a fight, between two other employees, and after the discharge of the antagonist in the fight. Davis likewise did not explain the urgency of effecting the discharge not only before the end of a pay period but also before the end of Johnson's shift, without permitting Johnson to complete the rolls he had started to prepare. It is apparent from the entire record, and I find, that Davis attributed the timing of the discharge to notification about Tolliver's broken collarbone as an afterthought.8 I find further that the only inference sup- ported by the evidence is that .Davis' decision to dis- charge Johnson was reached when Myers told him of Johnson's organizing activities," and that reliance on the fight as the cause of the discharge was pretextual. Further, the credited evidence indicates that the reason for Davis' urgency in hastening Johnson's departure and preventing his return to pick up his wages or vacation pay was to prevent his engaging in further union solicita- tion of the Respondent's employees. Discriminatory motivation for Johnson's discharge is demonstrated not only by the timing and all, the surrounding circumstances, but also by the postdischarge remarks of Supervisor Taylor to Henry set forth above, and of Supervisor Thompson discussed, in Section B(1) below. 10 In sum, I find. that immediately after-Myers observed Johnson soliciting signatures for union cards, Myers so reported to Davis, confirming Taylor's report earlier in the- day that Johnson asked him to sign a card; that Davis thereupon decided to terminate Johnson imme- diately and did so; and that Davis directed Johnson not to remain onior return to the Respondent's premises to "Start any trouble . '. . passing out no cards.. . ." Accordingly, I find that the Respondent's assertion of the fight as the cause. of the discharge was pretextual, that the Respondent discharged Johnson on April 22, 1969, because of his open and known solicitation of union membership," and, therefore, that the Respondent discharged Johnson fn order to discourage union member- ship and activity in violation of Section 8(a)(3) and (1) of the Act. 12 B. Interference, Restraint, and Coercion The complaint alleges that the Respondent engaged' in the following conduct in violation of Section 8(a)(l) of the Act: (1) on or about April 25, Supervisor Thomp- son threatened employees with discharge if they joined or assisted the Union; (2) Supervisor Volkland on or s See Roane Hosiery, Incorporated, 180 NLRB No 15, (TXD) See N L R.B. v Mira-Pak Inc , 354 F.2d 525, 527 (C A 5), enfg 147 NLRB 1075, Miller Redwood Co., 164 NLRB 389 Federal Pacific Electric Company, 179 NLRB No. 127 See Drexel Enterprises, Inc , 180 NLRB No 46; Ambox, Incorporat- ed, 146 NLRB 1520 12 Keller Industries, Inc , 174 NLRB No 58; N L R B v Schoellkopf Products, Inc , 410 F 2d 82 (C A 5, 1969) 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about April 21 and Supervisor Thompson on or about May 15 interrogated employees concerning their union membership, activities, and desires, and (3) General Manager Davis on or about April 22, 1969, promised employees vacation pay if they refrained from joining or assisting the Union 1 Threats Douglas Davis, an employee who was held of the Union's organizing committee'13 testified that he had been openly soliciting people to join the Union while at work but without letting it interfere with his work, that shortly after Johnson's discharge, on or about April 25, Supervisor Thompson "saw me drop a card to an employee", that when he proceeded out to the dock, "Mr Thompson immediately came out behind me, and he said `You think you're smart I saw you drop that card I know you was the head of this all the time, and not Jesse [Johnson] ' Then he said `Now, you don't want the same thing to happen to you that happened to Jesse, do you 9' I said `Nope ' " Thompson testified that he did not see Douglas Davis distributing union cards in April 1969, that he did not have a conversation with him about the Union "in April or any other time that I can remember", and that he would not use a phrase like "drop a card " Thompson testified further that he did not "really" know about the union organizing until late May, at least 30 days after Johnson's discharge, and that he did not know about the election petition filed in late April 14 He admitted, however, that he had heard rumors about the union movement from "various people just the employees and people talking " Finally he also admitted that he heard it from Davis and Myers, the general manager and the assistant manager, although he denied that he ever discussed the Union or the election with them I credit Douglas Davis, whose demeanor and testimony I found more candid and straight forward than that of Thompson I find, therefore, that Thompson threat- ened Douglas Davis that he would be discharged, as was Johnson, if he continued to engage in activity on behalf of the Union, and that the Respondent, by such conduct, violated Section 8(a)(1) of the Act 2 Interrogation to talk to him confidentially, so they got into a truck where there were no other employees, that Volkland asked what he knew about the union activities, to which he replied that he knew nothing about the Union, that Volkland then asked if he had signed a card, and he said he had not, and that he told Jernigan and Douglas Davis, who were active in the union campaign, about Volkland's inquiries Volkland, who had known Benavides before coming to work for the Respondent, admitted that he had heard about the Union as it was the general subject of discus- sion and that he talked to Benavides about the Union in April, when he was working as a relief supervisor 10 He described the conversation as follows "I had heard that there had been some union people around I just more or less asked him if he was familiar with their appearance It was just for curiosity on my part he claimed no knowledge of how they looked, their appearance He was unable to describe them to me, or anything " The Respondent's brief states The inquiry of supervisor Al Volkland posed to employee Benevedes is clearly improper His action cannot be defended upon the relationship between the two men, nor upon Volkland's inept attempt to maintain a confidential discussion with employee Benevedes His zeal in trying to identify the union representatives and ascertain other infor- mation about the union through employee Bene- vedes is not condoned by the Respondent or its Counsel The brief urges nevertheless that no cease-and-desist order should issue based on "this admittedly improper incident" because of all the circumstances, including the fact that there were no other instances of interroga- tion by Volkland of Benavides or of other employees, and that Volkland and Benavides have had "an off- the-job relationship for some time " I find no merit in these contentions I credit the description of the conversation given by Benavides, whom I found a frank and trustworthy witness Accord- ingly, and in light of the Respondent's other unfair labor practices, I find that Volkland's interrogation of Benavides as to what he knew about the union activities and whether he had signed a card constitutes interfer- ence, restraint, and coercion violative of Section 8(a)(1) of the Act, and that issuance of a cease-and-desist order is warranted as to this and the other conduct found unlawful "I a By Supervisor Volkland Alfonso Benavides, who had resigned from the Respondent's employ prior to the hearing herein, testified that in about the middle of April, while still employed by the Respondent, Supervisor Volkland said he wanted 13 General Manager Davis admitted that he understood even before receipt of a letter from the Union in late April or early May listing the organizers that Douglas Davis was engaging in Union activity because he was one of the employees in the station wagon that was seen being followed by the Union representatives i" The parties stipulated at the hearing that an election was conducted among the Respondent s employees on July 2 1969 b By Supervisor Thompson In late April or early May, after Johnson's discharge, the Respondent received from the Union a letter indicat- ing that an organizing committee had been set up and IS This apparently occurred prior to Volkland s change in title following Johnson s discharge i" Dryden Manufacturing Company Inc dlbla Atlas Truck Body Manufacturing Company, 174 NLRB No 46, enfd in relevant part, 421 F 2d 267 (C A 5 Jan 1970) New Truck Transport Inc 178 NLRB No 83 (TXD) p General Automation Mfg Inc 167 NLRB 502 Rocky Mountain Natural Gas Company Inc 140 NLRB 1191 DOBBS HOUSES 681 t naming those on the committee, including Johnson, Douglas Davis, Larry Jernigan, and Benavides Bena- vides testified without contradiction that the names of the committee members listed in the letter were projected on a screen in the lunchroom Benavides also testified that on the following day Supervisor Thompson asked him why he signed "a card for union representation," which Benavides denied doing, and that Thompson then asked why his name was on the organizing committee, which Benavides denied knowing anything about Thompson testified that he first knew of the union organizing committee when counsel for the Respondent showed him a letter with some names on it "near the time when the company was presenting its point of view on the election," which Thompson estimated was sometime in late May He also testified that when he learned that the names of the union organizing com- mittee included people with whom he worked, he was upset "to a certain extent I would say that it surprised me more than it upset me", that he did not discuss it, or did not recall discussing it, with Benavides, and that, even at the time of the hearing , he did not know whether or not Benavides supported the Union I credit the testimony of Benavides, and find that the Respondent , by Thompson's interrogation of Bena- vides as to why he signed a union card and why his name was one of those on the union organizing commit- tee, violated Section 8(a)(1) of the Act 17 3 Promise of benefit The allegation of unlawful promise of benefit is based an Davis` statement to Johnson about vacation pay at the time of Johnson's discharge As Davis testified, "I told him that he would get his normal vacation pay, two week vacation pay And that it would be the following Wednesday before he would get it I told him that we could mail his vacation pay to him " According to Myers, Davis "said he would pay him for his full vacation" and, further , "I believe the conversation ended when Mr Davis told him that he would give him his vacation pay " As found above on the basis of Johnson's credited testimony, Davis' statements that he would give Johnson his normal vacation pay and would mail it to him were premised on Johnson not returning to the Respondent 's premises to "Start any trouble passing out no cards " The Respondent points out that Johnson was entitled to the vacation pay under its established policy, and contends that Davis' offer of vacation pay to Johnson could not therefore constitute an improper promise of benefit t° I find no merit in the contentions made in the Respondents brief that Thompson s knowledge about Benavides surprised and upset this supervisor to make a most natural exclamation and registered his sponta neous disappointment that this man had signed a union card and that no remedial order should issue therefore regarding the unfortunate conduct of supervisor Thompson It appears from the comments in its brief that the Respondent did not credit the testimony in this matter of Thompson its witness I find that Davis, in seeking to persuade Johnson to stay away from the Respondent' s premises in order to preclude any further solicitation of union signatures, couched his offer to give Johnson his "normal vacation pay" and to mail the check therefor in a manner that constituted a promise of benefit Accordingly, I find, in all the circumstances of this case, that Davis made a promise of benefit to Johnson premised on Johnson refraining from further union solicitation of the Respond- ent's employees, and that the Respondent thereby violat- ed Section 8(a)(1) of the Act 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 the operations of the Respondent described in Section I above, have a close , intimate , and substantial relation to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free f8ow of commerce V THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that the Respondent cease and desist therefrom and from in any other manner infringing upon its employees ' Section 7 rights,18 and take certain affirmative action designed to effectuate the policies of the Act It has been found that the Respondent discharged Jesse Johnson , Jr , in violation of Section 8(a)(3) and (1) of the Act Just before the hearing closed, after 7 p in , the Respondent recalled Johnson to the stand and asked if he would "go back to work with this company in the same position within the few [sic ] days9" When I permitted the witness to answer this question over the General Counsel's objection, Johnson asked, "Do you mean would I like to go back to work at Dobbs')" The Respondent's counsel stated "Yes Would you go back to work with Dobbs Houses in the same position9" Johnson replied, "No, I don't think so " On cross-examination, the General Counsel asked John- son whether he previously had "been offered your job back at Dobbs Houses," to which Johnson replied, "Until he just asked me, no " The General Counsel then asked counsel for the Respondent, " was that an offer9" Counsel for the Respondent replied, "Of course it was " After Johnson left the witness stand, the General Counsel moved to strike the Respondent's question and the answer pertaining to Johnson 's desire to return to work for the Respondent The motion was denied I find nevertheless, in all the circumstances of this case, that the Respondent's question of Johnson at the hearing did not adequately meet the obligation to 1' N L R B v Entwistle Mfg Co 120 F 2d 532 536 (C A 4) N L R B v Express Publishing Company 312 U S 426 437 1 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remedy its discriminatory discharge of Johnson, that Johnson's response was equivocal, and that it will effec- tuate the policies of the Act to require the Respondent to make an adequate offer to reinstate Johnson 19 Johnson was evidently taken by surprise when the Respondent asked if he wanted his job back No offer of reinstate- ment had previously been made There was no reference to this in his lengthy cross-examination by the Respond- ent's counsel, who indicated at its close that he might recall Johnson on a particular matter, which had no reference to reinstatement The subject of returning to work was put to Johnson as a question, not as an offer Johnson responded with a question as to what the Respondent's question meant and, when it was restat- ed, replied, with an apparent lack of certainty, "No, I don't think so " Johnson was employed elsewhere at the time, and was given no opportunity to make a considered choice whether to retain his present employ- ment or return to his former employment, or, if the latter, to give reasonable notice to his current employer 20 The question gave no indication to Johnson that the Respondent's policy with respect to Ois activity on behalf of the Union "was in any way altered "21 Johnson's response to the question did not manifest "an unequivo- cal resolve not to accept reinstatement "22 Moreover, the question whether Johnson desires reinstatement is a factor which may be considered at the compliance stage of this proceeding 23 I find, in conclusion, that the Respondent's question at the hearing was not an adequate offer of reinstatement and, therefore, that it did not toll the Respondent's backpay obligation 24 Accordingly, I shall recommend that the Respondent offer to Jesse Johnson, Jr , immediate and unconditional reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment of a sum of money equal to that which he would normally have earned as wages from April 22, 1969, the date of his discharge, to the date on which the Respondent shall make an adequate offer of reinstatement, less his net earnings during said period Backpay shall be computed in the manner prescribed in F W Woolworth Company, IS As the Supreme Court stated in Phelps Dodge Corporation v N L R B 313 U S 177 187 Reinstatement is the conventional correc tion for discriminatory discharges 21 See Betts Baking Company 173 NLRB No 157 Lipman Bros Inc 164 NLRB 850 853 and cases cited therein 21 Laminating Services Inc 167 NLRB 234 See also Lipman Bros Inc supra Art Metalcraft Plating Co Inc 133 NLRB 706 enfd 303 F 2d 478 (C A 3) Santa Fe Drilling Company 171 NLRB No 27 Heinrich Motors Inc 166 NLRB 783 22 Lipman Bros Inc supra See also Arista Service Inc 127 NLRB 499 where the Board ordered the employer to offer reinstatement to an employee who had affirmed at the hearing that he did not desire to work for the Respondent Company 11 Arista Service Inc supra 24 Betts Baking Company supra 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co , 138 NLRB 716 Upon the basis of the foregoing findings of fact and upotl the entire record in the case I make the following CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com- merce 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 Jesse Johnson , Jr , is an employee within the mean- ing of Section 2(3) of the Act 4 By threatening to discharge an employee for engag- ing in union activities , by interrogating employees about the union organizing campaign and their participation therein in circumstances constituting interference, restraint , and coercion , and by making a promise of benefit to induce an employee to discontinue his union activities , the Respondent has violated Section 8(a)(1) of the Act 5 By discharging Jesse Johnson , Jr , because of his activities on behalf of the Union, the Respondent has violated Section 8(a)(3) and (1) of the Act 6 The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the Res- pondent, Dobbs Houses, Inc , a Division of Squibb Beechnut, Inc , Dallas, Texas, its officers, agents, suc- cessors, and assigns, shall I Cease and desist from (a) Threatening to discharge employees for engaging in union activities, unlawfully interrogating employees about a union organizing campaign and their participation therein, and making promises of benefit to induce employees to discontinue their union activities (b) Discharging or otherwise discriminating in regard to the hire and tenure of employment or of any term or condition of employment of its employees because of their membership and activities on behalf of the Union herein or any other labor organization of their choice (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act DOBBS HOUSES 683 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Jesse Johnson, Jr., immediate and uncon- ditional reinstatement to his former -or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Reme- dy.' (b) Notify Jesse Johnson, Jr., if at present serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. I (d) Post at its operation at Dallas Love Field, Dallas, Texas, copies of the attached notice marked "Appen- dix."25 Copies of said notice on forms provided by the Regional Director for Region 16, shall after being duly signed by the Respondent's representative, be posted by the Respondent immediately 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 post- ed. 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 16, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply here- with.26 • 25 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions , recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 26 In the event that this. Recommended Order is adopted by' the Board , this provision shall be modified to read - "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to discharge employees for engaging in union activities, unlawfully interro- gate employees about a union organizing campaign and their participation therein, or make promises of benefit to induce employees to discontinue their union activities. , i , WE WILL NOT discharge or otherwise discriminate in regard to the hire and tenure of employment or of any term or condition of employment of our employees because of their membership in and activities on behalf of the union named below or of any other labor organization of their choice. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of 'their right to self organization, to form, join, or assist American Bakery and Confectionery Workers International Union, AFL-CIO, Local 111, or any other labor organization, to bargain collec- tively through representatives of their own choos- ing, or to engage in other concerted activities for the purpose of 'collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to Jesse Johnson, Jr. his former or substantially equivalent position, without preju- dice to his seniority and other rights and privileges, and WE WILL pay him for any loss of earnings he may have suffered as a result of our discrimina- tion against him together with interest thereon at 6 percent per annum. WE WILL notify Jesse Johnson, Jr., if at present serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, in 'accordance with the Selective Service Act and the Universal Military Training and Service Act, '.'as amended, after discharge from the Armed Forces. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization. Dated By DOBBS HOUSES, A DIVISION OF SQUIBB BEECHNUT, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this Notice or compliance with its provisions, may be directed to the Board's Office, 8A24 Federal Office Building , 819 Taylor Street, Fort Worth, Texas 76102 Telephone 817-334-2921.