Capitol Fish Co.

National Labor Relations Board - Board Decisions

Mar 7, 1960

126 N.L.R.B. 980 (N.L.R.B. 1960)

980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By their lockout of employees , the Respondents have discriminated in regard
to the hire and tenure of employment of their employees , thereby discouraging
membership in the Union , and thereby have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 ( a)(3) of the Act.
4. By the aforesaid conduct and by the threat of a lockout , the Respondents have
interfered with , restrained , and coerced their employees in the exercise of rights
guaranteed in Section 7 of the Act, and have thereby engaged in and are engaging
in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Capitol Fish Company and Bennie Hill , Jr., and Porter Baldwin,
Jr. Cases Nos. 10-CA-3959 and 10-CA-3992. March 7, 1960
DECISION AND ORDER
On November 3, 1959, Trial Examiner James F. Foley issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, but that the Respondent had not en-
gaged in certain other unfair labor practices, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case in a three-member
panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following exceptions i and
modifications. o
1. We find, like the Trial Examiner, that the Respondent violated
Section 8 (a) (1) of the Act by interrogation of employees concerning
their union activities, by creating an impression of surveillance of such
ttctivities,2 and by threats of reprisal and promises of benefit, calcu-
lated to discourage such activities. We also agree with the Trial
% We make the following corrections in the Intermediate Report The Trial Examiner
erroneously refers to the dates of the election as September 26 and 29, and October 3,
1959, instead of 1958 ; to the elimination of the night shift as about April 13, 1958,
Instead of 1959, and to the date of the hiring of Rosezell Johnson as October 11, 1959,
instead of 1958
2 Although such surveillance was not alleged in the complaint, we find that the issues
relating thereto were adequately litigated
126 NLRB No. 123.
CAPITOL FISH COMPANY 981
Examiner that the Respondent's letter to its employees and its speeches
to assemblies of employees were not coercive. However, we find, con-
trary to the Trial Examiner, that the course or pattern of the Re-
spondent's conduct did not render such letter and speeches coercive.
2. Like the Trial Examiner, we find that the Respondent discharged
Hill because of his union activities, in violation of Section 8(a) (3)
and (1) of the Act.' In so doing, however, we rely only on the follow-
ing considerations :
The Respondent, by its letter and speeches to employees, its inter-
rogation, and threats manifested its union animus. It ascertained
that Hill was a leader in the organizing campaign of Local 315, Retail,
Wholesale and Department Store Union, AFL-CIO, and later of
Truck Drivers and Helpers Local Union No. 728, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, hereinafter called Teamsters. Prior to the Board elec-
tion, which was held on September 26, 29, and October 3, 1958, Re-
spondent warned that there would be some "new faces" in the plant if
Teamsters lost the election.' On December 5, 1958, approximately 7
weeks after the Board certified that Teamsters had lost the election,
the Respondent placed another driver (Davis) on Hill's truck to ac-
company him and learn the route. After a few weeks, Hill was dis-
charged for the stated reason that business was slow and Davis, who
had less service with the company and less experience as a truckdriver,
was given the identical route.
In explanation of Hill's discharge, Respondent contends that it was
part of a retrenchment program instituted by it for economic reasons,
and that Hill was selected for discharge because of his unsatisfactory
work record. However, like the Trial Examiner, we find that the
Respondent did not actually institute any retrenchment program for
its drivers until some 4 months after making the decision to discharge
Hill, as it was only in April 1959, that Respondent began to consoli-
date existing routes. Accordingly, we find that Hill's discharge was
not effected for reasons of economy. Moreover, even assuming
arguendo that a retrenchment program for Respondent's drivers had
been in effect at the time of Hill's discharge, the following factors
militate against acceptance of the reasons given by the Respondent
for singling out Hill for discharge :
The testimony of Supervisor Anglin that Hill was warned about
shortages in his accounts is rebutted by the uncontradicted and cred-
3 Respondent contends that the Trial Examiner ' s reliance on Hill's testimony was im-
proper, as Hi11's credibility had been impeached by evidence of his conviction for various
offenses Like the Trial Examiner, we find the nature of Hill's offenses was not such as
to require the discrediting of his testimony. In any event, the Trial Examiner's con-
clusion with respect to the legality of Hill's discharge is amply supported, in our opinion,
by other evidence in the record , even if we reject Hill 's testimony in toto.
+ The plain implication of this warning was that if Teamsters lost the election, Respond-
ent would discharge some or all of Teamsters ' adherents.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ited testimony of Respondent's own cashier, Lyle, that about one-
third of the drivers had shortages; that it was customary to permit
the drivers to make up their shortages; that Hill did, in fact, reim-
burse Respondent for his shortages; and that none of these shortages
had been brought to the attention of Anglin or other management
officials prior to Hill's discharge; the testimony of Anglin that Hill
made only one delivery on Saturdays, was contrary to Lyle's credited
testimony that Hill made from two to three deliveries a day. In view
of Anglin's own testimony that he regarded Davis as a competent
driver because he made two deliveries on Saturdays, we are satisfied
that there is no basis for Respondent's further contention that Hill
was an inordinately slow driver, or that he was slower than Davis.
Moreover, even if we credit Respondent's contention that Davis
was more productive and more versatile than Hill, there is evidence
indicating Respondent's extreme reluctance to dispense with the serv-
ices of its senior employees, even to the extent of shifting an efficient
driver to make room for an inefficient warehouseman who was a senior
employee. It is undenied that Hill had been employed by Respondent
over a year longer than Davis. Accordingly, even if we credit Re-
spondent's claim that Davis was more competent than Hill, that would
not adequately explain the selection of Hill for discharge, and the
failure to recall hint thereafter despite the admittedly heavy turnover
among the Respondent's drivers. Thus, in the case of Hill, unlike
that of the warehouseman referred to above, the Respondent disre-
garded seniority not only in replacing Hill with Davis, but also in
thereafter hiring new drivers to fill vacancies, instead of recalling
Hill.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Capitol Fish
Company, Atlanta, Georgia, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership by its employees in Truck Drivers
and Helpers Local Union No. 728, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, or
in any other labor organization, by discriminatorily discharging any
employee, or in any other manner discriminating against him, in re-
gard to his hire, tenure of employment, or any term or condition of
employment.
(b) Interrogating employees as to their union activities, interests,
or affiliations, in a manner constituting interference, restraint, or
coercion in violation of Section 8(a) (1) of the Act.
CAPITOL FISH COMPANY 983
(c) Threatening employees with reprisals, including loss of em-
ployment, if they engage in union or other concerted activities, in
violation of Section 8 (a) (1) of the Act.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Truck Drivers and Helpers Local
Union No. 728, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and to
refrain from any or all of such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Bennie Hill, Jr., immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
his seniority or other rights and privileges, and make him whole for
any loss of earnings he may have suffered by reason of the Respond-
ent's discrimination against him, in the manner set forth in that sec-
tion of the Intermediate Report entitled "The Remedy."
(b) Preserve and make available to the Board or its agents, upon
request 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
and the right to reinstatement under the terms of this Order.
(c) Post at its plant in Atlanta, Georgia, copies of the notice at-
tached hereto marked "Appendix." 5 Copies of said notice to be fur-
nished by the Regional Director for the Tenth Region shall, after
being duly signed by Respondent, be posted immediately upon receipt
thereof and be maintained by it for 60 consecutive days thereafter in
conspicuous places including the places where notices to employees are
customarily posted. Respondent shall take reasonable steps to insure
that such notices are not altered, defaced, or covered by any other
material.
(d) Notify the aforesaid Regional Director, in writing, within 10
days from the date of this Order what steps Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent violated Section 8(a) (3)
of the Act by its discharge of Porter Baldwin, Jr., and violated Sec-
tion 8 (a) (1) in respects other than herein found.
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, we hereby notify our employees that :
WE WILL NOT discourage membership by our employees in Truck
Drivers and Helpers Local Union No. 728, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or in any other labor organization, by discriminatorily
discharging any employee, or in any other manner discriminating
against him, in regard to his hire, tenure of employment, or any
term or condition of employment.
WE WILL NOT interrogate our employees as to their membership,
interest in or activities on behalf of the above labor organization,
in a manner constituting interference, restraint, or coercion.
WE WILL NOT threaten our employees with a loss of their jobs
or other reprisals, if they join, become interested in, or engage in
activities on behalf of the above labor organizations.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist Truck Drivers and Helpers
Local Union No. 728, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and 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 of such activities.
WE WILL offer Bennie Hill, Jr., immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to seniority and other rights and privileges, and make
him whole for zany loss of pay he may have suffered by reason of
our discrimination against him.
All of our employees are free to become or refrain from becoming
members of the Truck Drivers and Helpers Local Union No. 728,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, or any other labor organization.
CAPITOL FISH COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
CAPITOL FISH COMPANY
INTERMEDIATE REPORT
985
STATEMENT OF THE CASE
This proceeding, brought under Section 10 ( b) of the National Labor Relations
Act, as amended ( 61 Stat. 136), herein called the Act, on charges by Bennie Hill,
Jr., and Porter Baldwin , Jr., filed January 9 and February 4, 1959, respectively, was
heard before the duly designated Trial Examiner in Atlanta , Georgia, on May 13,
14, and 15 , 1959, on complaint of the General Counsel and answer of Respondent
Capitol Fish Company, herein called Respondent . The issues raised by the pleadings
and litigated at the hearing were whether Respondent engaged in various acts of
interference , restraint , and coercion alleged in the complaint, in violation of Section
8(a)(1) of the Act, and whether it discriminatorily discharged Bennie Hill, Jr.,
and Porter Baldwin , Jr., the Charging Parties, herein called Hill and Baldwin,
respectively, in violation of Section 8(a) (3) and ( 1) of the Act.
The General Counsel and Respondent were represented at the hearing, and
all parties were afforded full opportunity to be heard , to introduce relevant evi-
dence, to present oral argument , and to file briefs . The parties waived oral argu-
ment. General Counsel and Respondent filed briefs with the Trial Examiner after
the close of the hearing.
Upon the entire record and from my observation of the witnesses , I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
The complaint alleges and the answer admits that Respondent is a Georgia cor-
poration with its principal office in Atlanta, Georgia, where it is engaged in the sale
and distribution of sea foods , frozen foods, and canned goods , and which sold and
shipped products valued in excess of $50,000 directly to customers located outside
the State of Georgia , during the 12-month period ending March 15, 1959. I find
that Respondent is engaged in commerce within the meaning of Section 2(6) and
( 7) of the Act, and that assertion of jurisdiction is warranted.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers and Helpers Local Union No. 728, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America , herein called the
Teamsters Union and sometimes the Union , and Local 315, Retail , Wholesale and
Department Store Union , AFL-CIO, herein called Retail Union , are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. General background
Respondent employs approximately 100 employees . They are employed as
truckdrivers , warehousemen , salesmen , and clerical help. Julius Levitt and Jacob
Levitt, brothers , are president and vice president , respectively , of Respondent Cor-
poration . The business was founded by their father.
On September 2, 1958 , the Retail Union requested Respondent to recognize it as
collective-bargaining representative for its production , maintenance , and warehouse
employees including truckdrivers , and on September 3, 1958, petitioned the National
Labor Relations Board , herein called the Board , for an election in a unit consisting
of these employees . The number of employees was approximately 60. On Sep-
tember 19, 1958, the Teamsters Union also filed a petition for an election in the
same unit . On or about September 22, 1958, the Retail Union withdrew its petition
stating as its reason that the Teamsters Union had a better chance to win. An
election on Teamsters Union 's petition , consented to by Respondent and Teamsters
Union , was held on September 26 and 29 and October 3 , 1958, and the Board on
October 13, 1958, certified that a majority of the ballots had not been cast for the
Teamsters Union, the only labor organization appearing on the ballot , and that the
Teamsters Union was not the exclusive representative of Respondent's employees.
Teamsters Union did not file any objections to the conduct of the election.
B. The alleged interference , restraint , and coercion
Three or four days after receiving the Retail Union's letter of September 2, 1958,
requesting recognition , Julius Levitt sent a form letter to each one of its Respond-
ent's employees . Julius Levitt's letter contained the statements that in his opinion
986 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
and the opinions of the executives of Respondent the selection of Retail Union as
collective-bargaining representative could work serious harm to the employees of
Respondent and to Respondent ; that if the employees selected it as its representa-
tive, Respondent could not deal directly with employees in regard to their personal
problems, as it had been doing, without taking the chance of being accused of
playing favorites. He then stated that "For these reasons, I want you to know
that I and the Capitol Fish Company are opposed to having this union or any other
union come into our plant ." He continued , "We propose to do everything legally
in our power to keep any union from coming into our plant , and to keep them
from being able to create the sort of mess here that they have created in the fishing
industry and in other areas which they have been around before." At this point in
the letter, Levitt stated to the employees that in spite of the previous 10-month
operation at a financial loss, Respondent had no layoffs or short weeks regardless of
the cost of such a policy. According to Levitt, Respondent pursued this policy in
recognition of the personal obligations which the employees had to meet.
Julius Levitt then stated in the letter that it was not necessary for any employee
of Respondent to favor or pay dues to any union in order to work for Respondent;
that employees who joined a union would not receive preferential treatment ; that any
organizer who threatened an employee to force him to join any union was violating
the law, and Respondent would see that this conduct was stopped if brought to its
attention ; that employees have the same right to oppose organizational activity as
organizers have to further it, and that no union representatives have a right to come
into the plant and speak to employees unless the employees permit them to do so.'
Just prior to the withdrawal by the Retail Union of its petition for election on or
about September 22, 1958, Julius Levitt asked Archie Bell, a truckdriver employee,
who the leaders of the Retail Union and the Teamsters Union were. He said he
understood that Archie was the leader of the Teamsters Union and that Bennie
Hill was the leader of the Retail Union. Archie Bell replied that he knew more
than he did.2
Abe Winston, an employee of Respondent prior to the election, testified that while
he was unloading a railroad boxcar on Respondent 's premises , prior to the election,
Julius Levitt asked him if he had attended union meetings and whether he was for
the Teamsters Union. He answered that he attended union meetings but was not
for the Union. At the time, Winston was working for Whitehall Storage Company,
an affiliate of Respondent housed in the same building as Respondent . I credit
this testimony, which is unrebutted.
Prior to the election, Julius Levitt asked Clarence Harrington, a truckdriver
employee, while he was on the loading platform of Respondent, if he attended any
union meetings and stated that he knew how many of the employees attended them.3
He also said that it made no difference if Harrington attended the meetings.
Porter Baldwin, Jr., the dischargee, testified that about 2 weeks prior to the elec-
tion he was picked up on the way to work by Respondent's sales manager. Julius
Levitt was in the car. According to Baldwin, when the automobile was close to the
plant next to Respondent's which was on strike, Levitt said that if the Union did not
I Shortly thereafter a second letter was distributed to employees It was essentially
the same as this letter
-11 have credited Bell's testimony about this matter Julius Levitt admitted having a
conversation with Bell about union activity prior to the withdrawal of the Retail Union's
petition He testified, however, that he did not interrogate Bell about the two uions,
but that he merely came upon Bell in one of the corridors of the plant as he was "griping"
about both unions, and saying that lie did not care for either of them According to
Levitt, he questioned Bell's statement, pointing out to him that he had heard a rumor
that he, Bell, was the leader of the Teamsters Union and that Hill was the leader of the
Retail Union. Bell was a member of Teamsters Union, and apparently its plant leader
until Bennie Hill assumed that position when the Retail Union. on whose behalf he was
active, withdrew in favor of the Teamsters Union Subsequently to his conversation with
Levitt. Bell monitored the election for the Teamsters Union, in Hill' s absence The more
plausible testimony is Bell's
8I have credited the testimony of Harrington regarding this conversation , and not that
of Julius Levitt. The latter testified there was it conversation but that it was held in
the course of an effort by Harrington to befriend him According to Levitt, Harrington
came to him and told him that he was not going to vote for the Teamsters Union, to which
Levitt replied that Harrington should do whatever he wished, that he was not interested
in what he did While no date of the conversation was established it appears from the
evidence that it occurred prior to the election, and I so find. The testimony of Harrington
is the more plausible.
CAPITOL FISH COMPANY 987
win the election there would be some new faces around Respondent's plant. He
had previously asked the rhetorical question, how come the striking union next door
had not helped its employees. Levitt admitted the ride to work with the sales
manager, and that Baldwin was also a passenger. He said he believed that the date
followed the receipt of an industrial engineering report' regarding defects in
Respondent's operations which were causing cost increases and decreases in income.
He further testified that his conversation was with the sales manager, and that they
were discussing customers, procedures for increasing sales, and changes in sales
policy with the salesmen and other executive employees.
I credit the testimony of Baldwin. It is consistent with the credited testimony of
other statements made by the two Levitts shortly before the election. It is significant
that the automobile was close to the struck plant next door when Levitt made the
statement regarding the replacement of employees. It is also significant that Re-
spondent failed to call the sales manager to corroborate Levitt's testimony .5
One or two weeks before the election, Julius Levitt made two speeches to the
employees at Respondent's premises and on Respondent's time. The employees were
requested to be present. The two speeches were substantially the same. Among
other things, he stated the following. He said that the relationship between Respond-
ent and employees had been a family like affair, and that Respondent had been able
to do things for the employees because of this relationship, such as getting them out
of trouble, and loaning them money to pay for doctors' bills and to tide them over
other emergencies. He then stated that if a union represented the employees that
the loaning of money and other assistance to employees would no longer be a
personal matter between the Respondent and each of the employees but would be
governed by a collective-bargaining contract. He also stated that he could continue
to help them without a union, and did not see why they needed a union because
they all had a good living. He told them that they were free to vote for or against
Teamsters Union, and asked if anyone wished to speak for or against the Team-
sters Union. He assured the employees that such action on their part would have
no bearing on their jobs. According to Baldwin, he also volunteered to assist any
employee not familiar with unions, in solving problems he had in regard to voting.
A few days after the September 2 request of Retail Union for recognition reached
Respondent, Jacob Levitt had a conversation with James H. McDonald, a former
employee, who had dropped by the plant for a visit. The latter was interested in
securing employment for the free day that he then had on the job he was holding.
He volunteered that Retail Union was organizing the plant. In reply, Levitt asked
him who the leaders of the Retail Union were, saying at the same time that he knew
two or three of them. McDonald replied that he did not know who the union
leaders were.6
In September 1958, just prior to the election, employee Edward Blackshear, a
truck loader, came to Jacob Levitt on Respondent's premises, and said to him that
he heard someone had told him that he had joined the Teamsters Union. He further
said to Levitt that someone had come to his house for him to attend the meeting
and he went. Levitt replied that he was not going to tell him to join or not join
the Teamsters Union, but should he talk to some of the other employees he would
find that if he joined he might be out of a job.7
I do not rely on the General Counsel's offer through James H. McDonald, a
former employee, that Jake Levitt asked him "who the leaders of the Teamsters
are" and added that "after the first of the year there was going to be some changes
made." General Counsel had to rely on McDonald's affidavit to refresh his recol-
lection as the latter could not recall Jacob Levitt making such statements and
Levitt denied he made the statements. McDonald, on cross-examination testified
the changes had reference to changes in equipment. Nor do I make any findings
4 The report was received on or about September 15, 1958.
6In crediting Baldwin, I have considered his testimony on direct and cross-examination
which Respondent contends is conflicting and makes him an unreliable witness.
0 The background of the conversation and the testimony of both witnesses warrant the
Inference that this is what happened I do not rely on the testimony elicited by General
Counsel as to other statements made by McDonald in the course of this conversation for
the reasons stated infra
7I have premised this finding on Blackshear's testimony of what occurred during this
conversation he had with Jacob Levitt. Levitt admitted the conversation, but testified
that Blackshear asked him what would happen if the Teamsters Union won the election,
and that he replied that what would happen would be whatever the Respondent and the
Union worked out. Blackshear's testimony is more logical, and more consistent with the
testimony of other witnesses credited by the Trial Examiner.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with respect to General Counsel's evidence that Jacob Levitt said to Rosezell John-
son, employed after the election and later discharged for cause, that "he would get
everyone that was in the Union and that was using his trucks to go to the meeting."
Levitt denied he made the statement, but if he did make a statement along the
line of Johnson's testimony, it appears to the Trial Examiner that the statement
was in the conjunctive rather than the disjunctive, and was that he would get the
employees who were going to union meetings in his trucks. I see nothing illegal in
Levitt taking measures against employees using his trucks in such a manner without
permission or in threatening to take disciplinary action against such employees.
C. The discharges
As stated supra, General Counsel has alleged in his complaint that Respondent
discriminatorily discharged Bennie Hill, Jr., and Porter Baldwin, Jr., in violation of
Section 8(a)(3) of the Act. Respondent admits the discharges, but contends that
Hill was discharged for economic reasons and Baldwin was discharged for cause.
The Discharge of Bennie Hill, Jr.
Hill was hired in March 1957 and discharged on January 5, 1959. He was em-
ployed as a route truckdriver. Respondent's deliveries are made by trucks with
specified routes. The routes are classified as city routes and country routes. At
the time of the hearing, Respondent had 11 city routes and 11 country routes. Hill
covered the Peachtree-Chamblee Streets city route, Atlanta, Georgia, from about
September 1957 until the day of his discharge. He was replaced on this city route
by W. C. Davis who was hired in May or June 1958. The Peachtree-Chamblee
Streets route which Davis was driving on the dates of the hearing was the same route
that Hill was driving when he was discharged.
When Hill began his employment with Respondent he had had 9 to 10 years
experience as a truckdriver. After his first 6 months employment, he was given a
raise and assigned to a more difficult route than the one he was driving. This more
difficult route was the Peachtree-Chamblee Streets route. During the period of
Hill's employment, which was approximately 1 year and 10 months, Respondent
never received a complaint from customers about him. He was always polite and
cooperative. Hill testified that he had never been reprimanded by any official of
Respondent. As discussed infra, Respondent's witness Harry Anglin, warehouse
superintendent, testified that he reprimanded him three times.
Hill was the acknowledged leader of the Retail Union from the time it began its
organizational drive in June or July 1958, until it withdrew in favor of Teamsters
Union sometimes in September 1958 He then became active in the Teamsters
Union, and became the plant leader in its organizational drive in Respondent's plant,
and acted as observer for the Teamsters Union at the election which was held on
September 26 and 29, and October 3, 1959. Julius Levitt knew he was the plant
leader of the Retail Union prior to the withdrawal of its petition for election in
September 1958. Julius and Jacob Levitt and Anglin saw him acting as observer
for Teamsters Union during the election.
Hill was discharged by Jacob Levitt. Levitt was general superintendent of ware-
house operations, including deliveries and the truckdrivers who made them, until
on or about March or April 13, 1958. At the time he discharged Hill, Levitt said
to him that business was slow, that Respondent had to economize and let some of
the boys go, and that he was one of them. Levitt paid Hill for an extra week and
offered to recommend him for other employment. In his conversation with Hill, he
made no reference to a lack of versatility as a driver, slowness in returning from
deliveries, inability to become familiar with addresses of new customers quickly, or
shortages in accounts.
About a month prior to the discharge, Jacob Levitt had assigned Davis to ride
with Hill. Hill testified that he asked Jacob Levitt why Davis was assigned to ride
with him, and Levitt replied that he was riding with all the drivers. Jacob Levitt
could not recall making this reply. Davis testified that he rode only with Hill.
About 2 weeks after Davis begin riding with Hill, Woodrow Carnes another truck-
driver, broke his arm, and Davis was assigned to his route. Carnes returned to work
and his route about 2 weeks later. It was at this time that Hill was discharged and
Davis was given his route. During Davis' employment with Respondent prior to
taking over Hill's route, approximately 8 months, he drove the southside Atlanta
city route for 2 to 3 months, then the Newman, etc., country route for 3 or 4 months,
and then the Marietta country route for approximately 1 or 2 months. Davis, who
was Respondent's witness as well as General Counsel's, testified in response to
Respondent's counsel 's question, that he started the Marietta country route. He
CAPITOL FISH COMPANY 989
drove this route from on or about October 5 or November 5 to December 5, 1958.
This evidence discloses Davis' versatility as a driver.
With the exception of Hill's testimony that he was never reprimanded, and his
testimony regarding his inquiry to Jacob Levitt as to why Davis was riding with him,
and Levitt's reply, the facts on which the above findings are premised are either ad-
mitted or undisputed . Respondent contends that it discharged Hill because a re-
duction in income and the necessity of economizing required the layoff of a truck-
driver , and that Hill was selected on a nondiscriminatory basis as the one to be laid
off.
Respondent 's Testimony of its Economic Condition
Testimony by Julius Levitt and documentary evidence offered through him showed
that Respondent's order assembly and delivery costs for the first and second quarters
of 1958 in relation to its sales for the same periods were higher than the level Re-
spondent considered to be warranted by sound business practices. Julius Levitt's
testimony and documentary evidence further showed that Respondent had a net
operating loss for June, July, and August 1958. According to Julius Levitt, such
losses were unusual in the type of business engaged in by Respondent.
Respondent further showed through its witnesses Julius Levitt, and Herbert Feirt-
man, president of the Industrial Consulting Services, Inc., New York City, that in
August 1958, it began to study means whereby it could reduce operating costs. In
connection with this study, Respondent employed Feinman's firm on or about August
13, 1958, to make a preliminary industrial engineering survey and to report the
results to Respondent. The survey was begun on August 18, 1958, and completed
on August 29, 1958. A preliminary engineering report was completed on September
11, 1958, and delivered to Respondent on or about September 15, 1958. The report
attributes a disproportionate relationship between costs and sales to bad manage-
ment. It mentions , in general , excessive order assembly, shipping , and delivery
costs. The only reference to delivery drivers is the statement that "a more intelligent
system of scheduling and delivery would effectively reduce the amount of overtime
hours presently being paid as a weekly ritual."
Respondent , on its own , made a survey of delivery costs in relation to sales calling
for delivery. This survey was made shortly after the receipt of the engineering
report. During the same time, Feinman consulted with Julius Levitt with respect
to the implications of the preliminary report. Respondent , however , did not engage
Feinman's firm to make a comprehensive survey and report. As stated above, the
survey and report completed by Feinman 's firm were merely preliminary.
Then on or about October 4, 1958, Respondent initiated a number of changes
designed to reduce operating costs. Respondent offered in evidence weekly salary
reports showing a lower salary expense for the weeks in the period November 1,
1958, through April 25, 1959, than the salary expense of each comparable week in
the period of November 1, 1957, through April 25, 1958. Respondent represented
that these reports reflected the extent to which the changes resulted in reductions in
Respondent 's operating costs. The changes Respondent effected are discussed in
the following paragraphs.
Respondent's Testimony of its Cost Retrenchment Program
On October 4, 1958, Respondent announced in a bulletin to employees that effec-
tive the 27th of that month, only orders would be delivered or charged that were
valued at or above minimum amounts. According to Julius Levitt, reductions in
personnel , and other changes, were also effected . He listed the laying off of two
employees in the bookkeeping department, two in the sales department, and in the
truckdrivers' and shipping department at least the same as the number of trucks
taken out of operation by a consolidation of truck routes. According to him, there
were three or four. He testified that the reductions were begun about the time the
order limiting deliveries and charge accounts was issued which was on or about
October 4, 1958, were temporarily discontinued in December because of Christmas
but resumed in January 1959. However , he failed to state the specific dates in the
period from October 4, 1958, to the date of the hearing, May 15, 1959, on which
the employees in each group were actually laid off He failed to state the dates on
which the consolidations took place other than they took place somewhere in the
period from October 41n 1958 to May 15, 1959. But he stated that all changes in
the shipping department , which included the warehouse and delivery operations, were
made by Jacob Levitt and Anglin.
Anglin testified that all the changes in the shipping department that were part of
the cost reduction program were made by him after he took over Jacob Levitt's job
as superintendent of the warehouse . According to him, Jacob Levitt was transferred
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the sales department, nand he took over as warehouse superintendent, 2 or 3 months
prior to the hearing. He listed the changes he made He testified that he reduced
the number of city routes by eliminating one and combining two others, and reduced
the number of country routes by combining two routes, one with a city route and
two others with other country routes. His second change was the elimination of the
night shift in the warehouse, and the assignment of two of the night warehousemen
to truckdrivers jobs. Anglin had no trouble in recalling that the night warehouse
shift was eliminated about a month prior to the hearing, which would be about
April 13, 1958, but, like Julius Levitt, was very general about the time the truck
routes were consolidated. His best recollection was that he made them sometime
after he became warehouse superintendent, that is sometime after February 15 or
March 15, 1959. Davis, one of Respondent's favorite drivers, in response to the
question of Respondent's counsel by which he inquired if there had been a change in
the number of city routes, stated that there had been a change in the number of city
routes "for the last month or so." This would be from April 13, 1958.8
Respondent's Defense That It Selected Hill for Layoff on a Nondiscriminatory Basis
The basis for selecting Hill, according to Julius Levitt, was that he was an un-
satisfactory employee. When asked to state the reasons for the classification of
Hill as unsatisfactory, he stated that he had been so informed by the shipping de-
partment. He recalled Anglin telling him that Hill had been short in his C 0 D.
collections of three occasions. He testified at this point that the terminations of
employees in the shipping department were made by Anglin and Jacob Levitt, his
brother. Respondent's able counsel interjected that Anglin was the person to testify
with respect to the shipping department. Julius Levitt also stated that in making any
terminations he, his brother Jacob, and Anglin looked with favor on the versatility
of an employee in his particular department in view of a reduced operation, that
Davis, who replaced Hill, was versatile in handling any delivery route, country or
city, and was a much more able employee than Hill
Anglin testified that Jacob Levitt, and not he, discharged Hill. He admitted that
he had been consulted regarding Hill prior to his layoff. He did not disclose when
these consultations took place.9 He also admitted that he replaced Hill with Davis
According to Anglin, Hill was a slow driver, found it difficult to learn addresses of
new customers, returned after lunch instead of before from morning deliveries and
thereby was paid for the lunch hour, and made only one delivery on Saturday
Anglin also testified that Hill was short three times in his C.O.D. collections, and
each time he warned him that he would be discharged if he was short again He
further stated that Hill was willing to drive only the Peachtree-Chamblee route. He
attempted to explain this statement by testimony that while Hill never refused to
deliver another route, he knew that Hill desired only the Peachtree-Chamblee route
from the length of time he spent in asking questions about addresses of new customers
on his route. According to Anglin, this conduct by Hill was a subtle disclosure of
his desire to deliver the Peachtree-Chamblee route only. In regard to Davis. Anglin
testified that he was a versatile driver in that he was willing and able to handle any
route, could learn new routes quickly, returned promptly from deliveries, and made
two deliveries on Saturday where Hill made only one.
Anglin disclosed in his testimony that when the night shift in the warehouse was
terminated just prior to the hearing, he transferred two warehousemen on that shift
to driving trucks, largely because of their seniority. He testified that although one
of the warehousemen was inefficient, he was given an easy route and the driver of
that route was transferred to a route which the warehouseman could not handle.
He admitted on cross-examination that he never received any complaints about Hill's
work, that the latter did not drink on the job, was always polite, cooperative and
not argumentative, and that he "got his work done." He testified that the turnover
among Respondent's employees, in the shipping department, including truckdrivers,
was heavy.
Dan Connally Lyle, Respondent's head cashier, as Respondent's witness, testified
that 10 sales slips selected by Jacob Levitt from Respondent's files 10 were sales
slips of C.O.D. deliveries made by Hill in September and December of 1958 There
8 When counsel said "Uh-hush" after Davis answered, Davis added "On my end of it"
It is significant that it was not until on or about April 13, 1939, that Davis, the all-
round driver, first noticed any change in the routes
Hill testified that Jacob Levitt was engaged in a conversation with Anglin just prior
to his asking him to come into his office to receive the notice he was being discharged
10 Lyle checks all sales slips
CAPITOL FISH COMPANY 991
were five for each month. They showed shortages ranging from 20 cents to $7.21 11
for the deliveries in September and from $1.61 to $5.32 for the deliveries in
December. Lyle admitted that none of the shortages had been brought to the
attention of the Levitts or Anglin since they were considered to be minor shortages.
He testified that the shortages were paid up. He admitted that one-third of the
drivers had shortages in their C.O.D. accounts. Lyle also testified, contrary to
Anglin, that Hill made 2 deliveries a day and sometimes 3 a day, and averaged 14
or 15 deliveries a week.12 According to him, he checked daily the records of the
drivers.
Jacob Levitt testified that when he discharged Hill he told him business was slow,
Respondent had to economize and let some of the boys go, and that he was one
of them. He testified that Hill was selected for discharge because he was slower
than other drivers, was not as versatile as Davis, and asked questions about deliveries
on his route. He admitted that no complaints were received about Hill's work
and that he was doing his work "all right." He told Hill that if he wished a
reference or recommendation to feel free to call on him. He denied that Hill's
union activity had anything to do with Hill's discharge, and testified that he had
had knowledge of the union membership of several employees of Respondent. He
also testified that Respondent had no seniority rule, and that the turnover among
truckdrivers was heavy.
Respondent's Other Defenses of Hill's Discharge
Respondent also offered by way of defense the statement made by Hill on his
application for unemployment compensation that he was separated by Respondent
for the reason Jacob Levitt stated to him, namely that business was "dull," and his
failure to place a check in the box on the form that would indicate he was laid
off in connection with a labor dispute.13 Respondent also attacked the credibility
of Hill by evidence of judgments of the municipal court of Atlanta, Georgia, dated
May 2, 1956, holding Hill guilty of disorderly conduct arising from the distribution
of obscene literature and solicitation for prostitution.14
Discharge of Porter Baldwin, Jr.
Baldwin was hired in June 1958 and discharged on October 25, 1958. He was
employed as a truckdriver on a city route. He was replaced by Rosezell Johnson.
Johnson rode with him approximately 2 weeks before the discharge. Johnson was
hired on or about October 11, 1959, by Jacob Levitt for the purpose of replacing
Baldwin. Johnson was discharged by Anglin for cause 15 on or about November
"The figure $22 06 on line 24, page 403, of the transcript, is amended to read $6 02
'a In response to a question by the Trial Examiner, Lyle testified that Hill was short
from $15 to $30 every Saturday However, I do not rely on this testimony since no
reference was made to such a shortage in the testimony of Julius Levitt, Jacob Levitt,
or Anglin Lyle's testimony was given just before he left the witness chair and following
his direct, cross, and redirect examination The sales slips introduced by Respondent
showed no such shortage Moreover no reference was made to it in Respondent's brief.
if Hill took $15 to 00 from his collections on each Saturday morning, he apparently
had permission to do so.
is Respondent argued that the explanation by Hill of the separation, and the failure to
state that he was separated in connection with a labor dispute constituted a falsehood by
Hill since at the time lie completed the form he was of the opinion that he had been dis-
charged because of his union activity General Counsel, on the other hand argued that
Hill could not be expected to have the expertise that would enable him to identify the
subtle action by Respondent as being connected with a "labor dispute" or that he was
required to state his belief as to the real motive behind the discharge rather than the
explanation given him by Jacob Levitt In his testimony, Hill consistently stated that he
was not discharged in connection with a labor dispute, but that according to Jacob Levitt,
he was discharged for economic reasons.
14 The judgments against Hill were not for crimes of falsehood So his testimony is
not discredited per se. See Crown Corrugated Container, Inc, 123 NLRB 318. In evaluat-
ing Hill's credibility, I have considered his testimony and his demeanor on the witness
stand, any rebuttal testimony of Respondent s witnesses, and their testimony ds to Hill's
conduct during his employment by Respondent
15 Anglin testified that Johnson "just wasn't a truckdriver, he just wasn't a delivery
man" He just could not do anything. " . I think that he had been driving for
Mrs. Levitt." Mrs. Levitt was the mother of Julius and Jacob Levitt
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
22, 1958 . When Baldwin asked "Abe" a supervisor , why Johnson was riding with
him, the latter merely replied that he should let Johnson ride with him.
When Baldwin was discharged , he was told by Anglin that the reasons were
drinking on the job and cussing out customers . Baldwin asked him who the
customers were who made the complaints . According to Baldwin , Anglin replied
that he had to see a Mr. Wilson . 16 He stated that he attempted to reach Wilson
once by telephone but was unsuccessful . He made no other effort to get in touch
with him. Anglin admitted that neither he nor King, the sales supervisor, knew
who the customers were that complained . King or someone in the office usually
received the customer complaints , and King passed them on to Anglin . According
to Anglin, no record was kept of customer complaints until the unfair labor practice
charge alleging that Baldwin was illegally discharged was filed against Respondent.
,Baldwin was a member of Teamsters Union . He attended two of its meetings.
He testified that he did not know whether the Levitts or Anglin had knowledge of
his union affiliation . Julius Levitt and Anglin denied that they had. As previously
found, Julius Levitt, about 2 weeks before the election that was held in the latter
part of September and early October 1958, told Baldwin that if the Teamsters Union
did not win the election , there would be some new faces in Respondent 's plant
Baldwin denied that customers had complained about him or that he had ever
been reprimanded by the Levitts, or any other supervisor. He also testified that
when Anglin discharged him he said to Anglin that his membership in the Teamsters
Union may have had something to do with the discharge. According to him, Anglin
denied that it had. It was also Baldwin's testimony that Jacob Levitt was always
"egging" the men on to do their work by saying to them that they would have
to do better work when the Union came into the plant; that one day he specifically
said to him "to hurry up and get the stuff run, that I had to do better . . . if I am
going to be a union man."
Anglin testified that the customers ' complaints would have had to have been
received prior to Johnson being hired as the latter was engaged to replace Baldwin.
He stated that a prior complaint about Baldwin drinking on the job had been
brought to his attention, and that he had warned him about such conduct. He
recalled that the complaint was that Baldwin, while in a customer's store, "talked
back to them,",and at the time had liquor on his breath
Anglin admitted that he did not give Baldwin any prior notice of his discharge, or
the complaint on which it was based, and that he did not discharge Baldwin because
of consolidation of routes or any other retrenchment policy. He could not recall
receiving any complaints from customers about Baldwin . His testimony was that
he let Baldwin go without consulting anyone else 17
Respondent attacked Baldwin's credibility by introducing into evidence 106 time-
cards punched by Baldwin during the period of his employment from June 28 to
October 25, 1958 These cards show that he punched the clock 13 days at exactly
7 a.m., when he was scheduled to report for work, 50 days before 7 a in, and 43
days after 7 a.m. This evidence was offered to rebut Baldwin's testimony that he
was never reprimanded by his supervisors, and that he was fired for union activity,
and for the affirmative defense that, contrary to his testimony, he was a poor type
of employee. Respondent also offered evidence to show that, contrary to Baldwin's
testimony that his only conviction was for violation of a Federal statute controlling
the illegal transportation of whiskey in 1956. he had been found guilty in 1955 for
illegally transporting whiskey by the municipal court of the city of Atlanta and fined
$20. It was not clearly established by Respondent that the conviction in 1955 was
Baldwin's. Respondent further attacked Baldwin's credibility by evidence showing
that when he applied for unemployment compensation he failed to check the box
on the application form indicating he was discharged in connection with a labor
dispute, and that he stated on the form that Respondent had laid him off for drinking
on the job and "cussing out" customers although he at the time believed that he
was laid off for union activity . The form indicates that Baldwin identified the reason
given on it as Respondent's reason for laying him off. He testified that he told the
person at Georgia Employment Security Agency that he felt he was discharged for
union activity . He also testified that he was of the belief he was to give the
employer's reason and that the matter would be investigated , and a hearing held,
to determine what the real reason was.
There is also the testimony of Bell and Blackshear , witnesses called by General
Counsel , that they were members of Teamsters Union and were still employed at
16 Wilson was not identified
17 Since Jacob Levitt hired Johnson to replace Baldwin and Anglin discharged Baldwin„
there must have been some prearrangement between them, and I so find.
CAPITOL FISH COMPANY 993
the time of the hearing. As found in footnote 2, supra, it was also disclosed that
Bell was an observer for Teamsters Union during the election for a brief period
when Hill was absent.
Concluding Findings
Premised on the above findings, I make the following concluding findings.
Interference, Restraint, and Coercion
I have set out, supra, statements made by Julius Levitt in a letter he sent to employ-
ees on or about September 6, 1958, and in two speeches he made to employees on
Respondent's time about 1 or 2 weeks prior to the election. 1 find that the state-
ments made therein considered in isolation are expressions of opinion with respect
to union representation, protected by Section 8(c) of the Act,18 or deal with employ-
ees rights guaranteed by Section 7 of the Act. Levitt assured the employees in
the speeches prior to the election that they should feel free to vote the way they
wished and asked them to voice their opinions pro or con without any fear of
reprisal. The statement which, according to Baldwin, Julius Levitt made in the
speeches with respect to his readiness to help anyone not familiar with unions in
regard to voting, in this context and nothing more, is not a violation of Section
8(a)(1).
I have found that prior to the election in Respondent's plant in late September
and early October 1958, that President Julius Levitt asked employee Bell who the
leaders of the Retail Union and the Teamsters Union were; asked employee Winston
if he had attended any union meetings and whether he was for the Umon, and asked
employee Harrington if he attended any union meetings, supplementing the question
with the statement that he knew how many employees attended them. I have also
found that prior to the election, Julius Levitt stated in the presence of employee
Baldwin that there would be some new faces in the plant if the Teamsters Union
did not win the election.
With respect to statements made by Jacob Levitt, warehouse superintendent, I
have found that prior to the election, he told employee Blackshear that he was not
going to hell him to join or not join the Teamsters Union, but that if he talked to
some of the other employees he would find that if he joined he might be out of a
job. There is also the finding that Jacob Levitt asked McDonald, a former employee
seeking reemployment, who the leaders of the Retail Union were, saying at the same
time that he knew two or three of them. This question followed McDonald's volun-
teering that the Retail Union was organizing the plant.
I further find and conclude that the questions asked by Julius Levitt constitute
interrogation violative of Section 8(a)(1) of the Act,19 and the statement made by
Julius Levitt in the presence of Baldwin and the one made by Jacob Levitt to Black-
shear constitute threats violative of Section 8'(a),(1) of the Act.20 I consider, and
so find, Julius Levitt's and Jacob Levitt's statements in connection with their ques-
tions to Harrington and McDonald, respectively, to have given the impression that
Respondent engaged in surveillance. As such they are violative of Section 8(a) (1)21
I further find that Respondent's course or pattern of conduct relating to the union
activity and membership of its employees, starting with the letter of September 6,
1958, the speeches, interrogation, and threats and the discharge of Hill discussed
infra constitute a violation of Section 8(a),(I) of the Act 22 The letters and speeches
take on a new tone when considered with the other conduct.
is Nutone, Incorporated, 112 NLRB 1153, 1154-1155, affd N L R B. v. United Steel-
workers of America, CIO, 357 U S. 357; Schick, Incorporated, 118 NLRB 1160, 1161-1163 ;
Universal Producing Co, 123 NLRB 548. Also see Livingston Shirt Corporation, et at.,
107 NLRB 400
1B Blue Flash Express, Inc, 109 NLRB 591, 593; Grater Manufacturing Company, Inc,
111 NLRB 167, 169; Williamson-Dickie Manufacturing Company, 115 NLRB 356, 359-360;
Alamo Express, Inc, 119 NLRB 6, 7, 18, Mid-South Manufacturing Company, Inc., 120
NLRB 230, 232; Southeastern Mills, Inc, 123 NLRB 1783.
20 Texas Natural Gasoline Corporation, 116 NLRB 405; Reeves Brothers Incorporated,
et at., 116 NLRB 422; Harrisburg Building Units Co, Inc., at at., 116 NLRB 334;
Hoffman-Taff, Inc, 123 NLRB 1462
2'F. W. Woolworth Co., 101 NLRB 1457, 1458, footnote 2; Walton Manufacturing
Company, 124 NLRB 1331
22 Virginia Electric Power Co v, N L.R B , 319 U.S. 533, 539.
554461-60-vol 126-64
'994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Discharges
The Discharge of Bennie Hill, Jr.
My evidentiary findings, in brief, show that Hill was a better than average em-
ployee. He was cooperative and polite, was not late, never complained and "got
his work done." He was the truckdriver of a difficult delivery route given to him
after 6 months of employment to handle and develop. He had proved himself during
the first 6 months. An increase in pay accompanied the new assignment. He held
it until he was discharged, a year and 10 months later. There were no customer
complaints in regard to his handling of the route, or of any other work that Hill
handled. Hill stated that he had never been reprimanded by Respondent, although
Anglin, Respondent's warehouse superintendent, contended that he was reprimanded
three times for shortages in his C.O.D. accounts. However, there is the testimony
.of Lyle, Respondent's witness, that the shortages Respondent offered in evidence were
minor, had never been brought to the attention of management, and had been paid
up. And there is his further testimony that one third of Respondent's employees had
shortages. I credit Lyle's testimony corroborated by Hill's, and find that the
evidence fails to show that Hill was reprimanded for C.O.D. shortages. I also credit
Lyle's testimony that Hill made 2 deliveries a day, and sometimes 3, and averaged
14 or 15 deliveries a week. This negates Anglin's and Jacob Levitt's testimony that
Hill was a slow driver.23
Hill was an active member of Teamsters Union and its leader in Respondent's
plant He had also been the plant leader for Retail Union prior to its withdrawal
-from Respondent's plant in favor of Teamsters Union. He was an observer for the
latter union at the election held in Respondent's plant on September 26 and 29, and
,October 3, 1958. Julius Levitt, Respondent's president, knew that Hill was the plant
leader for Retail Union prior to its withdrawal. Vice President Jacob Levitt, and
Warehouse Superintendent Anglin saw him acting as observer for Teamsters Union
during the election. And prior to the election, Julius Levitt stated in the presence
of employee Baldwin that there would be some new faces in the plant if the Team-
sters Union did not win the election. Moreover, both Julius Levitt and Jacob Levitt,
who were also owners of Respondent, were hostile to union activity and membership,
and interrogated and threatened employees for the purpose of defeating the organiza-
tional activity of Retail Union and Teamsters Union, and Teamsters Union's
representation of Respondent's employees as collective-bargaining representative
The evidence shows that there was a reasonable basis for the judgment by
Respondent in August 1958, that certain of its costs appeared to be out of line
with sales and that the matter required study and analysis. The evidence also dis-
closes that the studies and analyses which Respondent made and reports thereof
amply justify Respondent's contention that in the early part of October 1958, it
-instituted a retrenchment program including a reduction in personnel for economic
reasons. The evidence does not show that it was instituted to cover up a discrimi-
natory discharge or other unfair 'labor practice. It does fail, however, to show any
connection between the retrenchment and Hill's discharge.
It is true that Respondent's testimony shows that the retrenchment program was
started on or about October 4, 1958, and from that date on there were reductions in
-personnel as part of the program But Respondent links a reduction in the number
-of truckdrivers to a reduction in the number of truck routes by consolidation or
elimination. Respondent's evidence alone discloses that the consolidation did not
-take place until after Anglin took over as general superintendent of its warehouse
,about February or March 15, 1959, and warrants the inference, which I now draw,
that it did not actually take place until on or about April 13, 1959, when the other
changes in the warehouse that were part of the retrenchment program were made.
While Hill was discharged on January 5, 1959, he was tagged for discharge on or
,about December 5, 1958, when Davis was assigned to ride with him It is a reason-
able inference. and one I now draw, that the actual decision to discharge him was
-made prior to December 5. The injury to Woodrow Carnes, a truckdriver, about the
middle of December 1958, and Davis' subbing for him until he returned 2 weeks later,
delayed Hill's layoff for that 2 weeks 24
2' I consider Lyle to have been a more objective witness than either Anglin or Jacob
Levitt In his position, he had direct knowledge regarding Hill's deliveries. More so,
than either Anglin or Jacob Levitt
2'' There is the likelihood that Respondent would have delayed the discharge in any
event until after the Christmas season since Davis was not ready, even absent Carnes'
-accident, to replace Hill until or about December 15, a close date to the Christmas season.
CAPITOL FISH COMPANY 995
December 5, 1958, the approximate date, Hill was openly tagged for discharge,
was approximately 12/3 months after October 13, 1958, when the Board certified
the results of the election, while it was approximately 4 months earlier than April 13,
1959, when the consolidation of truck routes took place. It can be reasonably
inferred that there is a connection between the event of October 13, 1958, and of
January 5, 1959. This is especially so since it appears from the record of this
case that Respondent's officials would hardly have been so naive as to discharge Hill
for union activity and membership earlier than December 5, 1958. On the other
hand, it appears to the Trial Examiner that to draw the inference that in this
context there is a relationship between the tagging of Hill for discharge on December
5, 1958, and the consolidation of truck routes on or about April 13, 1959, 4 months
later, would be to fly directly into the face of reason.
The evidence that Respondent hired Johnson to replace Baldwin on October 11,
1958, is a further rebuttal of Respondent's defense. If the truck route consolidation
was started on or about October 4, 1958, there would have been no need to hire
Johnson as anyone of the three or four drivers who became available as a result
of the consolidation could have replaced Baldwin when he was discharged on
October 25, 1958.
Respondent's willingness to replace a truckdriver with a night warehouseman of
known and tolerated inefficiency when the night warehouse work was discontinued
in April 1959 because of the latter's seniority, dissipates Respondent's defense that
efficiency and versatility controlled the termination of Hill who had seniority over
Davis. The replaced truckdriver was obviously a better employee than the night
warehouseman as he was transferred to a route that was too difficult for the night
warehouseman to handle. Also unexplained, is Respondent's position that the
employee to be terminated had to be Hill or Davis. It failed to show that a less
efficient truckdriver could not have been released at the time Hill was released, or
that it was not possible to retain the high caliber services of both Hill and Davis
Nor did it explain why the heavy turnover, which both Anglin and Jacob Levitt said
plagued the shipping department, did not take care of a surplus of drivers. Then
there is the testimony of Davis that he started a southside city route around the first
part of October 1958. This would indicate that in the fall of 1958, Respondent had
the need of an additional truckdriver rather than the unpleasant duty of discharging
one.
I find no merit in Respondent's defense that Hill failed to indicate on his applica-
tion form for unemployment compensation that he was discharged in connection with
a labor dispute when he had the belief that he was discharged because of union
activity. The term "labor dispute" is a term of art in labor relations. Federal
courts have toiled with the question whether certain conduct constituted a labor
dispute 25 within the meaning of the Norris-La Guardia Act.26 Hill could not be
expected to have known what the technical term means, or in any event whether a
discharge in a friendly atmosphere before he or Teamsters Union charged Respond-
ent with an unfair labor practice under the Act, was a discharge in connection with
a "labor dispute" as used on the application form.
Nor do I find any merit in the defense that Hill stated on the form that he was
discharged for economic reasons, when he was of the belief that he was discharged
for union activity. In the space reserved for an explanation of the separation, he
stated he was giving the reason given to him by Jacob Levitt, namely, that business
was dull. So it is clear that he gave Levitt's reason. His testimony at the hearing
indicates that he was of the opinion that the reason to be furnished was the reason
given by the employer. In my judgment, Respondent did not furnish the true
motive or reason to Hill when he was laid off. While Hill truthfully passed on the
reason to the Georgia Employment Security Agency that Respondent furnished him,
Respondent has not repudiated the reason it stated to Hill, and gains benefit from not
doing so, but at the same time attempts to brand Hill as a liar because he passed
it on to the Employment Security Agency. As stated above, I find no merit to this
defense.
I also find merit lacking in Respondent's attack on Hill's credibility because of his
conviction for disorderly conduct arising from distribution of obscene literature and
solicitation for prostitution in 1956. His offenses are not crimes of falsehood. As
previously found, supra, his testimony is not discredited per se. I find from his
-testimony, demeanor on the witness stand, and other factor stated in footnote 14,
supra, that his credibility should be judged by the same standards as the credibility
of other witnesses. In any event, I rely on Hill's testimony for corroboration only.
E g United States v American Federation of Musicians, 318 U.S. 741.
60 Stat 69 (1946).
O
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
My findings with respect to his discharge are premised largely on the testimony
of Respondent's witnesses.
For the reasons stated above, I conclude and find that Hill was discriminatorily
discharged for his union activity and membership to discourage membership in.
Teamsters Union, in violation of Section 8(a)(3) and (1) of the Act.
The Discharge of Porter Baldwin, Jr.
I have found that Porter Baldwin , Jr., was discharged on or about October 25,
1958. The question is whether he was discharged discriminatorily because of union
membership or activity as General Counsel contends or for cause as Respondent
contends. This question can be resolved at the threshold against General Counsel
because the evidence does not disclose that Respondent or any of its supervisors had
knowledge that he was a member of Teamsters Union or a member of Retail Union,
which had withdrawn in favor of Teamsters Union, or had engaged in any union ac-
tivity on behalf of either union . The facts that Baldwin joined the Teamsters Union.
and attended union meetings are not binding on Respondent unless it had knowledge
of such events 27 Since at the time the conduct in issue occurred, Respondent
employed approximately 100 persons and there were approximately 60 persons
in the unit involved in the election in Respondent's plant, the "small plant rule" has
no application here.28
.But even if the General Counsel had proved knowledge, my concluding finding
would have been the same. While Respondent did not present a defense clearly
showing reasons why Baldwin was discharged, on the other hand, General Counsel
failed to disclose by the preponderance of the evidence that he was discriminatorily
discharged for union membership or activity or other conduct discouraging member-
ship in Teamsters Union or Retail Union. 29 It does not follow per se from Respond--
ent's lack of more persuasive evidence of Baldwin' s cussing out customers and
drinking on the job, the reasons it advanced for discharging him, that the latter was
discriminatorily discharged within the meaning of Section 8(a)(3). The burden of
proof remained on the back of General Counsel 30
For the above reasons, I find that General Counsel has not proved by a pre-
ponderance of the evidence that Respondent discriminatorily discharged Baldwin-
in violation of Section 8(a) (3) and (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, which occurred.
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
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair-
labor practices, I shall recommend that it cease and desist therefrom and take cer-
tain affirmative action to effectuate the policies of the Act.
I have found that the Respondent interfered with, restrained, and coerced its-
employees in the exercise of the rights guaranteed in the Act. I am convinced'
that the unfair labor practices committed are related to other unfair labor practices
proscribed, and that the danger of their commission in the future is to be antici-
pated from the Respondent's conduct in the past. Accordingly, in order to make
effective the independent guarantees of Section 7, and thus effectuate the policies of"
the Act, I shall recommend that the Respondent cease and desist from in any manner
infringing upon the rights of employees guaranteed by the Act.
Since I have also found that Respondent discriminated in regard to the hire and
tenure of employment of Bennie Hill, Jr., I will recommend that the Respondent offer
to him immediate and full reinstatement to his former or substantially equivalent-
position, without prejudice to his seniority or other rights and privileges, and make
zr Etiwan Fertilizer Company , 113 NLRB 93, 97; Angus Manufacturing Company, Inc.,
123 NLRB 1919 ; Bakersfield Food Co, 123 NLRB 1130
29 See Bituminous Material 4 Supply Co, 124 NLRB 1007
29 See American Dredging Company, 123 NLRB 139; and Southeastern Mills, Inc., 123
NLRB 1783.
80 See National Shirt Shops of Delaware , Inc., et al ., 123 NLRB 1213; and American-
Dredging Co., Supra.
LOCAL 164, 1;AINTERS , DECORATORS AND PAPERHANGERS 997
him whole for any loss of earnings he may have suffered by reason of the Respond-
ent's discrimination against him, by payment to him of a sum of money equal to
that which he normally would have earned as wages from the date of his discharge
to the date of the Respondent 's offer of reinstatement , less his net earnings during
paid period , to be computed on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289,291-294.
Having found that General Counsel failed to prove the alle gations of the complaint
in regard to the discharge of Porter Baldwin , Jr., by a preponderance of the evidence,
I shall recommend that these allegations of the complaint be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Teamsters Union and the
Retail Union are labor organizations , all within the meaning of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Bennie
Hill, Jr., thereby discouraging membership in Teamsters Union , the Respondent has
engaged and is engaging in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act by its discharge of Porter Baldwin, Jr.
[Recommendations omitted from publication.]
Local 164, Brotherhood of Painters , Decorators and Paper-
hangers of America, AFL-CIO; International Brotherhood of
Painters, Decorators and Paperhangers of America, AFL-
CIO; and David W. Johns, Agent and A. D. Cheatham Paint-
ing Company
Local 1287, Brotherhood of Painters , Decorators and Paper-
hangers of America , AFL-CIO, and International Brother-
hood of Painters, Decorators and Paperhangers of America,
AFL-CIO and A. D. Cheatham Painting Company
Local 1010, Brotherhood of Painters , Decorators and Paper-
hangers of America, AFL-CIO, and International Brother.
hood of Painters, Decorators and Paperhangers of America,
AFI-CIO and A. D. Cheatham Painting Company . Cases Nos.
1J-CB-306, 12-CB-07, and 1f3-CB-308. March 7, 1960
DECISION AND ORDER
Upon a charge in Case No . 12-CB-305 duly filed on June 2, 1959,
and a charge in Case No. 12-CB-307 and Case No . 12-CB-808 duly
filed on June 11, 1959, and upon amended charges duly filed on
July 16, 1959, by A. D. Cheatham Painting Company , herein referred
to as the Company, the General Counsel for the National Labor Rela-
tions Board, by the Regional director for the Twelfth Region , issued
126 NLRB No. 1'11.