Clayton-Willard Sales

National Labor Relations Board - Board Decisions

Mar 28, 1960

126 N.L.R.B. 1325 (N.L.R.B. 1960)

CLAYTON-WILLARD SALES 1325
Clayton E . Smith and Willard Smith d/b/a Clayton-Willard
Sales and John L . Hodges and Gregory D. Ortlieb and Richard
Calvin Crosby. Cases Nos. 12-CA-661, 12-CA-687, and 12-CA-
702. March 28, 1960
DECISION AND ORDER
On September 24, 1959, Trial Examiner A. Norman Somers 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 as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, 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 briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications.'
THE REMEDY
Having found that the Respondents violated Section 8(a) (3) and
(1) by discriminatorily discharging employees Gregory D. Ortlieb,
John L. Hodges, and Richard C. Crosby, the Trial Examiner recom-
mended that Ortlieb and Hodges be reinstated to their former or sub-
stantially equivalent positions and be made whole for losses in pay
by reason of the discrimination. He recommended that no such reme-
dies be extended to Crosby.
The record shows that Crosby was discharged by Respondents on
November 21, 1958, because of his union activities. The Trial Ex-
aminer so found on the basis of Crosby's credited testimony as to his
termination interview with Respondent Willard Smith; on the cred-
ited testimony of Ortlieb and Hodges; and on "a rather formidable
array of `objective circumstances."' The Trial Examiner's recom-
mendation to withhold the customary remedy from Crosby stems from
1 After the hearing, the Respondent moved to reopen the record and requested the Board
to issue subpenas to obtain certain statements allegedly made by employee Ortlieb before
the Florida Industrial Commission. As the proffered evidence was not shown to have
been unavailable at the time of the hearing, and as it appears from the record as a whole
that no useful purpose would be served in reopening the record to consider the proffered
evidence, we deny the Respondent's motion D L. & S. Manufacturing Co, Inc., at al,
123 NLRB 1524
126 NLRB No. 157.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his conclusion that Crosby's attempted repudiation of the charges
filed by him and his testimony on the witness stand as to this matter
removed him from all right to have the Board's processes invoked to
remedy the discrimination against him.
The record shows that in April 1959, subsequent to the filing of
Crosby's charges, Crosby wrote two letters to the Board's Regional
Office. In the first, he asked for advice on how to drop the charges.
In the second letter, he stated that the charges were false and that
his conscience would not let him continue them. Crosby was inter-
viewed on two occasions by Board agents to whom he first stated his
desire to withdraw the charges as false. When he was requested to
repeat such statement under oath, he reversed himself and agreed to
the further processing of the charges. On the witness stand, Crosby
explained that in the spring of 1959, he tried to get into the good
graces of the Respondents so as to obtain the latter's recommendation
in connection with a new job for which he was applying. He also
was afraid that the Respondents would inform prospective employers
of his union activities and make it impossible for him to get another
job. He visited Respondent Smith, and on the latter's suggestion,
wrote the second letter to the Board. Smith admitted the visits by
Crosby, but denied that he had induced him to write the letters and
testified that Crosby had volunteered to send the letters. The Trial
Examiner declined to undertake to reconstruct what happened be-
tween two witnesses on whose testimony he was unable to place full
reliance.
Crosby's efforts in trying to withdraw the charges impeded the
Board's investigation to some extent. We do not condone his conduct.
However, we are not unmindful of the predicament of an employee
discriminatorily discharged for union activities and expecting with
some measure of justification further retaliatory action on the part
of his former employer. Such employee may feel desperate enough
in his efforts to find a new job to try to get into the good graces of his
former employers by unwarranted means. Moreover, we do not agree
that Crosby was deliberately evasive in his testimony as to the occur-
rences in the prehearing stage. He was subjected to vigorous cross-
examination, and to our reading of the record, made a reasonable
effort to explain the somewhat confused circumstances of his visits
with Smith to the best of his ability.
The remedy of reinstatement and backpay is not a private right,
but a public right granted to vindicate the law against one who has
broken it.2 Its object is to discourage discharges of employees con-
trary to the statute and thereby vindicate the policies of the National
Labor Relations Act.3 The statute authorizes reparation orders, not
NLRB v Reynolds Corporation, 155 F. 2d 679 , 682 (C A 5).
3 Waterman Steamship Corporation v. N L R B , 119 F. 2d 760 , 762 (C.A. 5).
CLAYTON-WILLARD SALES 1327
in the interest of the employees , but in the interest of the public.
They are not private rewards operating by way of penalty or of
damages.'
The withholding of backpay and reinstatement of Crosby under the
circumstances adverted to above would not effectuate the purposes of
the Act. Accordingly, we shall provide for such remedy in the Order
below.
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 , Clayton E. Smith
and Willard Smith, d/b/a Clayton -Willard Sales , Jacksonville,
Florida, its officers, agents , successors , and assigns , shall:
1. 'Cease and desist from :
(a) Discouraging membership in Truckdrivers , Warehousemen
and Helpers Local Union No. 512, affiliated with 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 in
regard to hire, tenure , or any other term or condition of employment,
except as authorized by Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
(b) Interrogating employees concerning their affiliation or sympa-
thies with the above-mentioned labor organization, or any other labor
organization , or concerning their voting in any Board-conducted elec-
tion, in a manner violative of Section 8 (a) (1) of the Act.
(c) In any other manner interfering with, restraining , or coercing
employees in the exercise of the right of self-organization , to form
labor organizations, to join or assist Truckdrivers , Warehousemen
and Helpers Local Union No. 512, affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, or in any other labor organization, 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 as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities, except as authorized in Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Gregory D. Ortlieb, John L. Hodges, and Richard
Calvin Crosby immediate reinstatement to their former or substan-
tially equivalent positions , without prejudice to their seniority or
4 Agwilines , Inc. v. NLRB., 87 F 2d 146, 151 (C A 5).
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.other rights and privileges or, if such position is presently unavail-
able, place them-on a preferential hiring list for the filling of future
vacancies, and make them whole for any loss of pay suffered as a result
of the discrimination against them, from the date of discrimination
to the offer of reinstatement or placement upon a preferential hiring
list, as the case may be, all in the manner set forth in the section of
the Intermediate Report entitled "The Remedy," as modified by the
instant decision of the Board.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination or copying, all payroll records, social-security
payment records, timecards, personnel records and reports, and all
other records helpful in analyzing the amount of backpay due and
the right of reinstatement under the preceding provision.
(c) Post at their warehouse in Jacksonville, Florida, copies of the
notice attached hereto marked "Appendix." B Copies of said notice,
to be furnished by the Regional Director for the Twelfth Region,
shall, after being signed by the Respondent's authorized representa-
ttive, be posted by the Respondents immediately upon receipt thereof,
in conspicuous places, including all places where notices to employees
are customarily posted, and maintained for a period of 60 consecu-
tive days. Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondents violated Section
8(a) (1) of the Act by promising employees wage increases and
benefits if they voted against the Union, by threatening employees,
,and, by threats, intimidation, and promise of benefit trying to obtain
withdrawal of the charges and complaint from employee Crosby.
I 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."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Truckdrivers, Ware-
housemen and Helpers Local Union No. 512, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or in any other labor organization, by
discriminatorily discharging any employee or in any other man-
CLAYTON-WILLARD SALES 1329
ner discriminating in regard to hire, tenure , or any other term
or condition of employment , except as authorized by Section
8(a) (3) of the Act, as modified by the Labor -Management Re-
porting and Disclosure Act of 1959.
WE WILL NOT interrogate employees concerning their affiliation
or sympathies with the above-mentioned labor organization or
any other labor organization , or concerning their voting in any
Board-conducted election , in a manner violative of Section
8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with , restrain, or
coerce our employees in the exercise of the right of self-organiza-
tion, to form labor organizations , to join or assist Truckdrivers,
Warehousemen and Helpers Local Union No. 512, affiliated with
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen 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
as guaranteed in Section 7 of the Act, or to refrain from any
and all such activities , except as authorized in Section 8 (a) (3)
of the Act, as modified by the Labor -Management Reporting and
Disclosure Act of 1959.
WE WILL offer to Gregory D. Ortlieb, John L. Hodges, and
Richard Calvin Crosby immediate reinstatement to their former
or substantially equivalent positions , without prejudice to their
seniority or other rights and privileges , or, if such position is
presently unavailable , place them on a preferential hiring list for
the filling of future vacancies , and make them whole for any
loss of pay suffered by them as a result of the discrimination
against them.
All our employees are free to vote for or against any labor organi-
zation in any Board -conducted election , or not to vote at all, as they
see fit. Also our employees are free to become, or to refrain from
becoming, members of any labor organization , except to the extent that
this right may be affected by any valid agreement in conformity with
Section 8 ( a) (3) of the National Labor Relations Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
CLAYTON E. SMITH AND WILLARD SMITH
D/B,A CLAYTON-WILLARD SALES,
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.
554461-60-vol. 126-85
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before the duly designated
Trial Examiner on May 25, 26, and 27, 1959, in Jacksonville, Florida, on the con-
solidated complaint of the General Counsel, as amended at the hearing, and answer
of Respondents. The issues litigated were whether Respondents discriminated against
the three Charging Parties herein in violation of Section 8(a)(3), and otherwise
interfered with, restrained, and coerced their employees in the exercise of their
rights in violation of Section 8(a) (1) of the Act. The General Counsel presented
oral argument but filed no brief, and Respondents filed a brief but made no oral
argument. On the entire record and my observation of the witnesses, I hereby
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The Respondents, Willard Smith and Clayton E Smith, are brothers and com-
prise the partnership of Clayton-Willard Sales, sometimes referred to as the
Company or the partnership. They are engaged, in a plant or warehouse in
Jacksonville, Florida, in the wholesale vending and distribution of bicycles, includ-
ing parts and accessories, and hobbies. Since the early part of 1959, they have also
conducted this business in a plant or warehouse in Chamblee, Georgia (outside
Atlanta), under the corporate name of Clayton-Willard Sales, Inc. The corpora-
tion , like the partnership, is wholly owned and controlled by the Respondents. The
purpose of the Georgia warehouse, as Willard Smith described it, was to put Re-
spondents in a better competitive position by being nearer to the supplier of their
bicycles, and also to increase their out-of-Florida business by basing themselves
closer to unexplored areas with market potential. The result is that all the out-of-
Florida orders of Respondents' business are now handled through the Georgia
facility, and all of the business of the Jacksonville warehouse is confined to Florida.
However, the out-of-State shipments from Jacksonville preceding the events here
involved exceeded $50,000 annually. Quite apart from this, the two warehouses,
whether owned corporately or by the partnership, are branches of a single , integrated
enterprise. Accordingly, it is found that at all times herein material, Respondents,
in the conduct of the business or enterprise above described, were engaged in inter-
state commerce within the meaning of the Act and to an extent which satisfies the
Board's jurisdictional standards.
H. THE LABOR ORGANIZATION INVOLVED
Truckdrivers, Warehousemen and Helpers Local Union No. 512, affiliated with
the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America (hereinafter called the Union), is a labor organization within the mean-
ing of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The central issue
On November 7, 1958, in an election held among the employees at Respondents'
Jacksonville warehouse, the Union lost four to three. Two weeks later, Respond-
ents terminated the complainants in this case. The General Counsel contends this
was retribution against the three employees who Respondents thought were account-
able for the Union's tally. Respondents contend this was a reduction in force
motivated by business considerations. We turn to the record.
B. The evidence summarized and discussed
1. Background events: organization of employees, and interrogation
of complainants 1
In May 1958 Complainant Richard Calvin Crosby asked William Fowler, busi-
ness agent of the Union, how to go about organizing his fellow employees, and at
1 The events here reviewed occurred in May or early June, or more than 0 months be-
fore December 15, 1958, when the first charge was served They are therefore considered
not as specifications of unfair labor practices but solely for their evidentiary bearing in
interpreting later events. See Senorita Hosiery Mills. Inc, 115 NLRB 1304, footnote 3.
Included here also are events which Complainant Crosby testified occurred in "June or
CLAYTON-WILLARD SALES 1331
his solicitation the bulk of Respondents' warehouse force (seven out of eight), in-
cluding Crosby and the other two complainants, met with Fowler on a Sunday
early in June. After Fowler addressed them and answered questions concerning
the Union, the group signed authorization cards. The next day, at the plant, Fowler
asked Willard Smith, the partner in charge of personnel at the Jacksonville ware-
house (who will hereafter be referred to as Smith, and whose brother, Respondent
Clayton E. Smith, will be referred to by his first name), for recognition of the
Union. Smith declined, saying the Company never had a union, and that he saw
no need for one at the time.
After Fowler left, Smith asked Complainants Hodges and Gregory D. Ortlieb
whether they knew Fowler or had met him before. Each answered in the negative.
Ortlieb's disclaimer was met by the statement, "That was one of your buddies."
The same day, this time in the presence of Ratliff, the Company's sales manager,
Smith, again asked Ortlieb whether he had seen "that man" (Fowler) before, and
Ortlieb admitted he had. Smith then asked specifically whether another employee,
not a complainant in this case, had been to the meeting with Business Agent Fowler.
(The reference was to Henry Coroneas, whose father was identified as a "pretty
strong union man." He had been out of the city and was the one who had not
attended the meeting.) Ortlieb replied that that employee did not attend. Smith
then asked who else had been at the meeting, to which Ortlieb responded about
95 percent. Smith then asked Ortlieb to keep the conversation "confidential." A
week later, Smith asked John Hodges whether he was "sure" he had never seen
Fowler before, and Hodges repeated his disclaimer.2
In June or early July 1958 (supra, footnote 1) Smith asked Complainant Crosby
how and by whom the Union got started. Although Crosby, as appears previously,
was the actual instigator, he professed ignorance. Smith accused Crosby of with-
holding information from him, and after one of the Company's road salesmen tried
to elicit the same information from Crosby, likewise without success, Smith again
accused Crosby of holding out 3
2. Conversations during the pendency of the election and immediately thereafter
Before the election and while the representation proceeding was pending, Smith
interrogated Hodges and Ortlieb still further concerning their union connections
and sympathies. Contemporaneously, according to the undenied testimony of
Hodges and Ortlieb, Clayton Smith, addressing each of them separately, and pointing
to a posted article in Life magazine, which dealt with exposure of corruption in the
July." The Respondents are entitled to the date more favorable to them, and these too
will receive consideration for the limited purpose here described
2 Smith was never asked nor did he testify concerning the above conversations His
only testimony was that in October and Novmeber, before the election, he did not "inter-
rogate" any employee about his union affiliation or sympathies Apart from the fact that
the period cited did not meet the dates as fixed by these witnesses, Smith's blanket denial,
if it can be deemed to encompass these incidents, would go only to the conclusionary
aspect of Hodges' and Ortheb's nairations This hardly meets their detailed testimony,
with the specification of occasion and content, including, in Ortlieb's case, the naming of
Sales Manager Ratliff as having been at Smith's second conversation with him While,
as more fully explicated later (infra, footnote 5), I would thus be obliged to credit
Hodges and Ortlieb, I should, add that in this specific instance, the factor on which
Smith relied to support his denial does not apply in any event Smith testified lie did not
interrogate employees concerning their union ties or sympafliie- because lie was warned
against it by the Board agent who arranged the employee election and by his attorney-
These incidents occurred early in June and the election petition was filed the following
month.
2 The above too is not specifically denied (see supra, footnote 2), and is credited
Also credited is Crosby's undenied testimony that Smith expressed a good opinion of
Crosby's work (which the record indicates Smith in fact entertained) and an intention to
make Crosby foreman of the then contemplated Georgia plant
For reasons later indicated, Crosby is not credited on controverted items unless he is
reliably corroborated in other respects And so I do not credit Crosby's testimony con-
cerning other aspects of his conversations with Smith, such as that Smith conditioned
Crosby's receiving the position in Georgia on the defeat of the Union, promised a raise
for the force if the Union lost the election, and said that even if the Union won, its
victory would be futile because Respondents' attorneys would use delaying tactics in
negotiations with the Union, which would make it pull out in disgust.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Union, said to Hodges, "Look here, here's your friend," and to Ortlieb
that these were "your leaders." 4
The interrogation of Hodges took place in each instance at his work place. Smith
approached him and asked if he had heard about a union trying to come into the
warehouse. Hodges said he had not. Smith then asked what Hodges thought of the
Union. The latter repeated his protestations of ignorance and indifference. Smith
then stated that a union would not help the employees, and asked Hodges if he had
been contacted about a union. Hodges again answered in the negative. A few
weeks later, Smith again approached Hodges and put the same questions to him and
received the same answers.
About a month before the election, Smith asked Ortlieb how he "felt about the
election ." Ortlieb indicated he thought he would not vote. Two weeks later, Smith
asked him the same questions and Ortlieb said he "still didn't think [he] was going
to vote for [the Union]." Smith assured Ortlieb that "nobdy [would lose his] job
no matter how it turned out," and expressed the opinion no one would vote for
the Union anyway. Ortlieb said he thought the Union would receive "some support"
and on Smith's asking from whom, mentioned Henry Coronas (the employee about
whom Smith had asked Ortlieb in one of the June conversations) "because his
daddy's a pretty strong union man."
The election, as mentioned, took place the afternoon of November 7. All the
seven employees then eligible voted and the count was three in favor of the Union
and four against.
Immediately after the election, Smith asked Ortlieb "what I had done" (referring
to how he had voted). Ortlieb replied that he "did what I told him I was going to
do," to which Smith responded, "Well, I believe you . . . You have never lied to
me before . . . I don't think you will now." 5 In actual fact, on the morning of
the election, and before the balloting, Crosby, according to his undenied testimony,
had openly sworn Hodges and Ortlieb to keeping their pledge to vote for the Union.6
Later that day, Smith assembled the employees. Thanking them for a vote which
obviated the closing of the plant, he assured them that there were no hard feelings
4I differ with the General Counsel in his view that there is an "aroma of coercion" in
Respondents' posting of the Life article and of cartoons dealing with corruption in high
places in the Teamsters hierarchy, and in arguments made by Smith in opposition to the
Union during his queries of Hodges and Ortlieb. The action falls within the immunity
of Section 8(c) of the Act to the "expressing of views, arguments, or opinion " Assuming
that certain statements , even though couched as arguments , can be interpreted as threats
when decoded in the light of contemporaneous illegal conduct (cf, e g., N.L R B v.
Wslbus H. Ford, d/b/a Ford Brothers, 170 F. 2d 735, 738 (CA 6) ; N L R.B v Gate
CstV Cotton Mills, 167 F. 2d 647, 649 (C A. 5) ), I find no warrant for such an inference
here, particularly where the exposures in the posted matter were factual and indisputably
relevant to the employees ' choice. Clayton ' s comments to Hodges and Ortlieb in pointing
to the article are simply an evidentiary item to be weighed along with all other evidence
on the question of whether Respondents knew or suspected these persons to be union
proponents.
5 Other than his blanket denial, as previously described (aapra, footnote 2), that he
"interrogated" employees about the Union, Smith made no reference whatever to the
incidents particularized by Hodges and Ortlieb . As there indicated , it is difficult to see
how this denial , which simply touches the conclusionary aspect of the incident described,
measures up against the precise and detailed testimonies given by Hodges and Ortlieb as
to occasion and content , some of it containing matter favorable to Respondents Smith
gave no indication of whether he disputed that these meetings ever occurred, even to the
extent of the matters favorable to him, or merely limited his dispute to the portions
ascribing interrogation to him. If the latter, it would be necessary to have his version,
since vital to the resolution of the parts in conflict is knowledge, through a fully stated
version of the conversations, of what parts are in agreement, of how a given conversation
insofar as agreed to came to be, and of what its fair import was in the light of portions
not in dispute. Hodges and Ortlieb are credited
6 This happened in the presence of two other employees, one of whom was Roscoe
Owens Although Smith described Owens as "foreman of the bicycle department," his
duties, as Smith described them, would indicate that Owens' position falls short of that
of a supervisor , and that he is rather an expediter, who, in Smith 's words, tells the men
"what the boss wants " Crosby testified he saw Owens talk to Smith that day, which
Smith does not deny, since he had daily contact with Owens in his above-described
capacity Crosby also testified that he overheard Owens tell Smith about his actions in
regard to Hodges and Ortlieb. This last I do not credit.
CLAYTON-WILLARD SALES 1333
toward those who voted for the Union, and suggested that they get back to work and
drop the subject 7
This brings us to the termination of the three complainants.
3. The termination of the complainants on November 21, 1958
At the end of the day on Friday, November 21, Smith called in Hodges, Ortlieby
and Crosby in that order, and told them their employment was ended. All the
interviews occurred between each complainant and Smith alone.8 Each testified that
Smith attributed the termination to the Company's belief that he had voted for the
Union. Thus Hodges testified Smith told him he "had reason to believe [Hodges]
had voted for the Union," that he praised Hodges for his "fine record" as an em-
ployee, promised to give him "a good reference anytime," but suggested that if he
wanted a union he "should go somewhere else where they had a union ." Ortlieb
testified that when he entered, Smith said, "Greg, . you and I are going to part
marriage," whereupon Ortlieb reminded Smith that he had promised "there wasn't
going to be anybody fired over . . . the Union," to which Smith responded, "Well-
I'm not firing anybody-I'm just-that's a harsh word-I'm just terminating two or
three of you-if it ever comes up again in a year or so--l know there would be two
or three of you would vote for it." Crosby testified that when he entered, Smith
told him "we were fixing to part working together" and that it seemed Crosby "wanted
the Union more than [he] wanted [his] job," that Crosby then reminded Smith of
his promise that "no one would lose his job," whatever the outcome, to which
Smith replied he was "waiting for the whole mess to be over with"; further, that
Smith told him he had a "fine" record, and Smith would give him a good reference,
except that he "would have to mention [Crosby's] being involved in a labor dispute
and that would make it hard for [him] to get a job."
Smith claimed that he told the complainants he was laying them off because of
business conditions. He testified he told Hodges that "due to business not being what
it's supposed to, I'm going to have to lay you off or terminate your employment,"
and that as Hodges left he told him to feel free to call upon him for a reference,
because "if I can't help you, I certainly won't hurt you " Smith further testified that
he gave Ortlieb the same reason, but that Ortlieb "picked up his check and walked
out" before he could discuss the matter of a good reference with him. (Smith
testified he could truthfully have given Ortlieb a good reference on the score of
ability and honesty.) As to Crosby, Smith testified he gave him the same reason
as the others, and that he promised him a good reference, but denied that he said
he would disclose to future employers he had been involved in a "labor dispute."
7I do not adopt the General Counsel's Interpretation of Smith's address as conveying
that Respondents would have closed the plant if the Union had won, or that Smith
warned the employees not to discuss the Union on pain of discharge. Rather do I
accept Smith's explanation that he was conveying that if the Union had been named
bargaining agent and had made "unreasonable demands," Respondents would have been
placed in a disadvantageous position as against competitors not faced with such demands
and have been forced to price themselves out of the market. I also accept Smith's explana-
tion that what he intended to convey about the union discussion was that now that the
suspense was over, the employees should get back to their normal work routine. The
burden of proof being always on the General Counsel, Respondents are "entitled to the
interpretation which exonerates rather than convicts." Senorita Hosiery Mills, Inc.,
115 NLRB 1304, 1315
8 Hodges testified that during his interview, Clayton Smith entered the office and put
him through an inquisition climaxed by Hodges' admitting he had voted for the Union.
On the other hand, Ortlieb, though he heard Hodges testify and followed him on the stand,
testified that he had been waiting outside Smith's office during the interview, and with a
clear view into Smith's office, he recalled no one entering it when Hodges was there.
Allowing for the fact that Ortlieb's attention might then have been distracted by a con-
versation in which he was then engaged with the pricing clerk and a road salesman, I
would deem Respondents entitled to have Ortlieb's testimony considered as corroborating
Smith's denial that Clayton entered the office at any time during that interview Hodges'
testimony concerning any portion of the interview which he fixes as having occurred
after Clayton's alleged entrance (including the statement, which he attributed to Smith,
that Hodges would be ineligible for unemployment compensation under Florida law dis-
qualifying "workers in a labor dispute") is not credited. Resolution of the conflict be-
tween him and Smith over the conversation preceding Clayton's alleged presence (as
described in the text) is deferred pending the discussion of the conflict between Smith and
all three complainants.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Before analyzing the conflict between Smith and the complainants, I at once
discount the testimony of Robert Ray Nichols, a "disinterested" witness. He testi-
fied that on November 24, pursuant to an ad inserted in the newspapers, he applied
for a position, and that Smith, while interviewing him, told him he discharged an
employee (whose description fit Hodges) because the latter tried "to bring the Union"
in. On my interrogation of the witness, it developed that he was a friend of Hodges,
and on that previous Friday, when the termination occurred, Hodges told the witness
he had been fired because he voted for the Union, which the witness concluded was
a "dirty thing." Assuming the witness appeared in Respondents' office as an ap-
plicant, as he claims, his mission was manifestly too suspect to warrant placing any
reliance on his testimony, and his testimony is discounted in toto-but with one
exception.
The exception is the reference to the ad. Respondents on the morning of
November 21 inserted an ad in the paper, which ran for 3 days, and read as follows.
Man to work in warehouse Prefer man with sales ability. Must have good
education. Apply 1731 Danese St. See Mr. Smith.
During the earlier part of the day on which they were terminated, complainants
saw persons in the office responding to the ad and waiting to be interviewed by
Smith. Monday morning, November 24, Smith put two persons, whom he hired
through the ad, to work in the departments in the warehouse from which Hodges and
Ortheb had been severed. Also, at about that time, he hired two persons to work
at a special shipping table to handle, as Smith testified, the yearend shipping orders.
In that context, Smith would hardly have been likely to tell the complainants he was
laying them off for economic reasons, without at once being challenged by them on
the score of the ad in the papers that morning, the applicants being seen in answer
to it earlier that day, and on the score also of these additional facts: that only 7
days earlier, Respondents gave a general wage raise to the force, and that during the
preceding month Respondents had taken on a new warehouseman, who was still
there Further pointing to the mutually assumed finality of the action is the fact that
there was no discussion of a subject which normally comes up when an employee is
laid off, namely, their being called back in the event of future vacancies.
The facts thus support the complainants in their dispute with Smith over whether
he told them that this was an economic layoff, as he claimed, or indicated that this
was a final severance, as they testified he did. The matter of whether Smith expressly
attributed this severance to his belief in their support of the Union is deferred while
we consider Respondents' claim that the termination was in fact an economically
motivated reduction in force instead of a discharge.
Smith's claim that this was in fact an economic layoff and not a discharge is under-
mined by a rather formidable array of "objective circumstances" 9 pointing the other
way. Some of these have been cited in our consideration of the question of whether
Smith told the complainants that such was his reason. Each assertion made to sup-
port the claim that the terminations were economically motivated seems refuted by
conduct in the contrary direction. Thus, Smith testified that orders and income had
fallen off; yet despite it, Respondents granted a general raise the week before Smith
testified that the slump had been "building up for 2 or 3 months," during which he
would have gone through with the contemplated reduction of three but for the
pendency of the election; yet on October 18, 1958, a little over a month before the
termination, he hired a new warehouseman, who was retained after the termination.
The claim of Respondents that the termination of the three was an economically
motivated reduction in force meant that conditions were such that the Respondents
had concluded to eliminate nearly half its force; yet, in addition to the fact that the
conduct already alluded to points to a contrary conclusion, there was no dollar
showing of any kind to make such a conclusion comprehensible; indeed Smith's
assertions, themselves unsupported, spell out an accustomed seasonal drop, which
had not theretofore been deemed cause for reduction, so far as appears; and the
only assertion Smith made to differentiate the situation he described from the normal
seasonal drop was that "1957 was a little better year than '58," which still under-
scores the inquiry as to how that could have led to the conclusion that the force
needed to be reduced by nearly half. Finally, the claim that this was a reduction
at all is in the face of the fact that four new employees were taken on when the
three complainants were let out, which looks rather like an increase of one. Indeed
in bringing the warehouse force up to eight, the Respondents would seem to have
restored it to its numerical composition in June.
9 Brady Aviation Corporation, 110 NLRB 25, 30, enfd . 224 F. 2d 23 (C.A. 5).
CLAYTON-WILLARD SALES 1335
Smith tried to reconcile the hiring of four with the claim that the termination was
a reduction in force. In doing so, he testified that the two men whom he hired
through the ad and placed in the respective departments of Hodges and Ortlieb
(Charles Dupree in Hodges' bicycle department, and Sam Andrews in Ortlieb's
hobby department) were taken on as "trainee salesmen." Smith explained that this
was because he was about to lose one of his road salesmen, Teal by name, and that
he was looking for a successor. Smith further explained that before being sent on
the road, a salesman must spend a preliminary apprenticeship at the warehouse to
become acquainted with the vast assortment of items dealt in by Respondents, and
that the reason two trainees were hired to fill one selling position is the high
mortality rate of trainees in the competition for selection, that at least two, more
often three, and sometimes four trainees are hired in order to fill one selling vacancy,
while the others drop out.
Smith was not explicit as to whether he meant that the trainees actually replace
the other warehousemen while being trained, or that, operationally speaking, they
are surplusage in the warehouse, their function being only to learn what is needed
to enhance their selling prowess. It would seem, on rather heavy balance-and,
indeed, the only meaning consistent with the claim of a reduction in force is-
that the trainees hired are above and beyond the regular manpower needs of the
warehouse. Otherwise, if trainees were intended to take the place of the employees
in the warehouse, the departure of two salesmen from Respondents' employ, under
the asserted proportion of trainees to each selling vacancy, could sweep out the
regular warehouse force. Also, if such was the impact of a trainee salesman on
warehousemen's jobs, then Crosby, Hodges, and Ortlieb, whose service ran from
1955, 1956, and 1957, respectively (infra, footnote 10), would have felt it during
prior salesmanship vacancies, the last one of which occurred in 1957, when Teal
himself was hired. Yet there is no indication that they or anyone else in the ware-
house had previously been affected by the filling of salesmen's vacancies.
The fair import of Smith's testimony, then, is that Dupree and Andrews, the
alleged trainees, were not filling any vacancies created by the severance of Hodges
and Ortlieb, but were simply there to absorb the knowledge needed to be salesmen.
One would hardly have thought so from reading the ad. It is difficult to see bow
an applicant responding to it could have failed to think that the job he was to fill
was not that of a salesman who was to undergo a preliminary tutelage at the ware-
house, but a job in the warehouse as such, for which he would be preferred if he
could also sell, but from which he would not necessarily be barred if he could not.
However, language being the imprecise instrument it is, the words of the ad would
hardly control standing alone, so we pass on to the two men who were hired at the
shipping table. They were concededly hired for work in the warehouse, which had
to be done Smith testified they were taken on, as they were in past years, as
extras to fill the yearend shipping orders. But extras, as the term connotes, are
hired for overflow work, to do work above what the regulars can handle. Smith
explained that the complainants had not been hired "specifically" for the work given
the extras, but there is no question that such work is encompassed within a ware-
houseman's labors. Smith testified that he hired the extras because their salaries
were less than the complainants', and the difference "was a tremendous saving to
the Company." We are at once confronted with the task of reconciling this with the
demonstrated practice of Respondents of placing a higher value upon experience-
a practice reflected in the general raise given only a week earlier, and indeed in the
fact that complainants themselves had worked their way up from salaries even
lower than those of the extras to their then current ones, as a result of Respondents'
policy which places a premium upon experience 1e Also, if economy were a factor,
one wonders what could have impelled an employer to refrain from at least offering
these regulars an opportunity to work out the year at the lower rate before turning
that work over to outsiders. And finally, one wonders why Respondents would not
have seized upon the opportunity to effect a truly "tremendous saving" by having
the work for which the extras were hired performed by the two trainee salesmen,
since under the fair import of Smith's explanation for their being hired, they were
not there to fill Ortlieb's and Hodges' places, but to learn to be good salesmen on the
to Their starting dates and respective wages at time of hiring and termination are
as follows
Name Hired
Weekly wane
when hired
Weekly wage
when terminated
Richard Crosby--------------March 1955 $40 $60
John L Hodges ------------- Sept. 1956 $45 $62 40
Gregory D. Ortlieb----------- Sept. 1957 $40 $58
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
road. I would not understand Respondents to claim that work at the shipping table
is not part of a salesman 's learning program, for we are told by Smith that one of
the trainees , Dupree, was working at the shipping table in March 1959.11 Dupree's
and Andrews ' not being put to work for which the other two were hired would thus
be attributable to the fact that there would be no saving of any kind in doing so,
and this would be so only if they were needed full time in Hodges ' and Ortlieb's
respective departments , where they were placed. Dupree and Andrews were thus, in
fact, filling vacancies created by the severance of Hodges and Ortlieb
The severance thus lack the attributes of an economic layoff and would seem to
possess all the attributes of a discharge . The intended finality of the termination
is further demonstrated by events after it. On November 25, 4 days after the termi-
nation , in response to an inquiry from an employment service concerning Crosby,
Smith gave Crosby a good reference on the score of ability and character, but
answered "no" concerning whether he would rehire him.12 The attitude expressed
to the employment service would seem reflected in the fact that none of the com-
plainants were called upon to fill subsequently occurring vacancies either. One
opened up in the Jacksonville warehouse in 1959 , and Respondents filled it from the
outside. The other occurred in the Georgia warehouse , in which Smith had earlier
promised Crosby a job (supra footnote 3). As stated earlier, that warehouse was
established , among other things , to handle the interstate business of Respondents'
enterprise , and Respondents , as the persons in sole ownership and charge of the
corporation formed to take over that warehouse , controlled the selection of per-
sonnel there as well as in Jacksonville . The vacancy in the Georgia warehouse was
filled by one Cannady, an erstwhile filling station operator in Jacksonville, who,
some time after complainants ' termination , did a short hitch at the Jacksonville
warehouse (working on dollies, as Smith explained ) before being sent out to
Georgia, where he has regular warehousemen's duties.13
On the premise that "action and conduct on some occasions speak louder than
words" (N.L.R.B. v. The M. H. Ritzwoller Co., 114 F. 2d 432, 436 (C.A. 7) ),
we must conclude that the persons taken on at the time of the termination, whose
hiring Smith sought to reconcile with his claim of an economic reduction in force,
were simply replacements created by the severances here involved, which loom
rather inexorably as an outright discharge . Respondents would seem to have said
as much at an earlier time, while the charges were pending and before the General
Counsel issued his complaint . This was in a latter sent by Respondents on March
5, 1959, to a congressman . In essence , the letter protests the fact that the charges
were pending and denies that the Union was the reason for the termination. How-
ever, the letter achieves pertinence from what it says was the reason . In relevant
part, it states that the complainants were terminated "because their services were
just unsatisfactory ," and it espouses the Respondents ' right to "terminate an employee
for unsatisfactory services and hire someone whom we think could better serve
our purpose ." Life would perhaps not be quite the same if an irate citizen could
not sound off to his congressman without having his words brought back to plague
him. Yet Respondents gave it the importance it achieved , particularly on the issue
of Smith 's credibility.
To understand how the letter achieved a significance beyond the issue to which
it is immediately pertinent , we must suspend our narrative while we relate the aspect
"The two purported trainees would seem not to have gotten past the warehouse stage
Andrews quit after 3 weeks, and Dupree after 3 months whether Teal's departure had
meanwhile taken place, we do not know The Trial Examiner's suggestion that the
record be supplemented by a stipulation concerning this and other matters was rejected
by Respondents' counsel because of a policy of their office against posthearing stipulations.
12 Testifying to the above was Joseph A. Amesbury, in charge of the service He related
he called Respondent Company as a reference listed on Crosby's application and had this
conversation with Smith as the man to whom he was referred as the person "in charge
of personnel " Though Smith denied he received such a call, it must be said that there
is nothing to impeach the disinterestedness or reliability of Amesbury. He is a mature
man of obvious professional competence, who testified with dignity and reserve There
was nothing about him which would impel or warrant the kind of inquiry that the Trial
Examiner made of Nichols (the self-styled applicant), with its devastating revelations.
Indeed he testified, quite candidly, that in view of Smith's endorsement of Crosby on the
score of competence and honesty, he ignored Smith's last avowal and sent Crosby out on
job interviews anyway
3a One Buchanan was hired in a supervisory capacity in Jacksonville when Clayton
Smith took over the management of the warehouse in Georgia Unlike the General
Counsel, I attach no significance to that hiring.
CLAYTON-WILLARD SALES 1337
of the hearing which concerned it. The letter was produced by the General Counsel
toward the end of Smith 's cross-examination, up to which time, by way of under-
scoring his claim of a reduction in force, Smith stressed that the complainants were
satisfactory employees, and that he had no complaints "whatsoever" about their work.
The General Counsel 's production of a copy of the letter and his efforts to establish
the foundation for its proffer brought on a stormy interlude , in which , at the same
time that counsel was making his objections , Smith was trying to qualify his previous
indorsements of the complainants in order to reconcile the letter with them. Smith
did so the following morning, on redirect , by explaining that the letter (which was
signed by his brother Clayton ) meant not that complainants' "work was unsatisfac-
tory to the point that it was no good ," but that they were "more unsatisfactory than
those retained ." The fact that this would not be quite in keeping with a letter convey-
ing that the men were "terminate [d] . . . for unsatisfactory services" and replaced
by persons who could "better serve our purpose" is less important than how Smith
proceeded to particularize upon his explanation . At this stage and for the first
time, Smith came forward with a statement of complainants ' asserted shortcomings,
which tended to nullify his previous utterly unqualified expression of satisfaction
with them. Thus, as Smith now testified, Hodges had sustained 'a back sprain
which made him unable to lift bicycles , Crosby was beset by creditors whose pursuit
of him was embarrassing to Respondents , and Ortlieb had acquired a paper route
some 8 weeks before his termination , which assertedly weakened him toward end
of day and made lVm less available for overtime . The belatedness of these quali-
fications , taken with the fact that they were admittedly not even mentioned at the
time of the termination , would rather undermine Respondents ' claim that they ever
relied on them . However, it was in Smith 's particularization of his assertion concern-
ing Ortlieb , after the latter testified in rebuttal , that he would seem to have rendered
himself the graver disservice.
In mentioning Ortlieb's paper route, Smith gave no indication that he had even
suggested that Ortlieb give it up . Ortlieb then testified that far from objecting to it,
Smith had suggested it: he told him his son-in-law supplemented his income with a
paper route , and suggested Ortlieb do the same . Ortlieb then went on to say that
when he thereupon acquired the paper route , he told Smith about it and the latter
said their was no objection as long as it did not interfere with Ortlieb 's availability
for overtime . Ortlieb testified he met all overtime requests , and heard nothing
about the matter since. Smith then resumed the stand , and as he now told it, the
paper route, previously advanced as but a qualification to his earlier unqualified
expression of satisfaction with Ortlieb along with the other two , achieved dimen-
sions of insubordination incompatible with even a qualified indorsement. Smith
testified that when Ortlieb told him, 8 weeks before the termination , that he had
the paper route, he told Ortlieb this violated,a company rule against outside employ-
ment, and that 3 weeks before the termination , he told him his work was falling off
and that "he had to make up his mind one way or the other ." As he went deeper
into the story, in the space of minutes, he involved himself in manifest self-
contradictions suggestive of sheer improvising . Thus, he was asked what Ortlieb
replied on each of the two occasions , and he answered that Ortlieb made no reply
either time, and in respect to the second conversation , Smith volunteered the explana-
tion that "Gregory is not much for talking, he'd just look at you." His own counsel
then asked why, since Ortlieb was violating a company "rule," he had not terminated
him earlier , and Smith replied , "Because he told me he was going to get rid of it."
Asked when Ortlieb told him that, he replied it was the second conversation.
Reminded of his own statement , only a few moments earlier, that Ortlieb made no
reply to his complaint in the second conversation , and of his own volunteered
explanation in connection with it, that "Gregory is not much for talking," Smith
replied , "That was the first time," which contradicted his earlier unequivocal testi-
mony that Ortlieb was silent in response to Smith 's asserted complaint on both
occasions . Questioned as to this , Smith reversed his course to the point where the
ultimatum and the promise seem to have evaporated . Smith testified:
Q. (By Trial Examiner .) Well, if I tell you that my recollection is that you
said that Mr . Ortlieb was silent the second time you spoke to him would you
say my recollection is wrong9
A. No, if you say that, that might be it.
Q. But is it true that he didn 't say anything at that time?
A. That he didn't say anything.
Q. In the second conversation when you spoke to him?
A. When I asked him if he still had his paper route?
Q. And vou-
A. And he said yes.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q And then you said it's against the rules. Now is it true that he didn't
answer at that time?
A. No, he told me he had his paper route at that time and I told him that
I thought he ought to get rid of it and that's all that was said.
Apart from the fact that Ortlieb would hardly have been likely to cling to a mere
supplementary means of income (yielding him $28 a week), when told it would
jeopardize his major source of sustenance, Smith's testimony on that point, in its
content and character, does not warrant acceptance, and it is found that the paper
route, which he was now trying to turn to Ortlieb's disadvantage, had been suggested
by him, and that he at no time objected thereto.
The credibility issue as between Smith and Ortlieb concerning what was said at
the latter's terminal interview would seem ripe for determination Before doing so,
we revert to one phase of the "trainee salesmen" explanation for Hodges' and
Ortheb's displacement, because it would seem to bear further on credibility. Smith's
description of the pains of the search for a replacement for but one road salesman
raised the question of why he could not have avoided all this by finding one from
within the ranks, a matter which would have meant a great saving to Respondents
and have spared the other travail which he claimed to follow in the quest of one.
Smith gave reasons why others were unavailable But as he recited the qualifications
he required, they would seem to have fit Ortlieb, who is alert, tightly knit, and
tersely articulate. Indeed, Smith's sole reservation concerning Ortlieb on that score
was his youth. But, as with the paper-route episode, he sai(P this after having
previously said the reverse: before Ortlieb's name came up he testified "age doesn't
have too much to do with it " Smith's explanation that Ortlieb's youth meant a
higher premium for car insurance causes one to wonder how this could have deterred
an employer who asserts a willingness to stake two, three, and as many as four
trainees to full salaries if it will yield him one good salesman , or why, if such was
a factor, he could not have broached to an otherwise qualified prospect, such as
Ortlieb, a proposed adjustment for the higher premium in his future salary as sales-
man-a proposal which would have been presumably acceptable to Ortlieb in view
of the "great differential," to which Respondents call our attention in their brief
"in the wages of warehousemen as opposed to salesmen."
The result of all the above is that Smith has failed in his effort to avoid the plain
inference flowing from the hiring of new employees at the same time that Respond-
ents assertedly laid off the three here involved The character of his testimony, with
assertions at odds with admitted facts and with palpable shifts in positions as each
exigency arose, bears strongly on the weight to be given his denial as against
Ortlieb's affirmative testimony concerning the terminal interview.
Ortlieb was not impeached concerning any aspect of his testimony. A measure
of his forthrightness was the direct and ungrudging manner in which he gave testi-
mony favorable to Respondents. We have noted his role in discrediting the testimony
of his fellow-complainant , Hodges, to the effect that Clayton Smith entered Smith's
office during Hodges' interview and made statements linking the termination to an
antiunion motivation (supra, footnote 8). He also gave testimony favorable to
Respondents in other respects, which are entitled to serious and earnest consideration
on the ultimate issue , and will be discussed in the concluding findings. Nor can
we altogether overlook the attribute of character reflected in Ortlieb's undertaking
the self-denying rigors of the supplementary job, which Smith tried to turn to Ortlieb's
disadvantage. This too calls for qualities of self-discipline, which sometimes dif-
ferentiate the forthright witness from the weaker vessel, who seeks escape in delusive
faults of memory, or sheer self-deceit.
Ortlieb emerges as a forthright, cleancut young man who inspires confidence
against his testifying to other than what he remembers and against his memory being
colored by self-interest Indeed, in respect to the other crucial phase of the terminal
conversation, concerned with whether Smith said this was an economic layoff, or
made it clear that this was a final parting of "marriage," the objective circumstances,
as we have seen, supported his version and correspondingly discredited that of Smith.
His testimony as a whole, when weighed against Smith's in its entirety, persuades
me of the truth of Ortlieb's entire version of what occurred at the terminal interview,
and I credit it.
As to the other complainants , I would have had grave reservations against accept-
ing their testimony, as against Smith's denial, that Smith expressly put this termina-
tion , though final, on grounds similar to those which I have found he put to Ortlieb.
The finding that in his conversation with Ortlieb he linked the termination of all
the complainants with the belief that they would be the likely supporters of the
Union in a future election endows their testimony with the corroboration, which,
along with the fact that they were also sustained on the issue of whether Smith put
CLAYTON-WILLARD SALES 1339
the termination on the ground of a layoff at all, tips the scales of credibility in
their favor on that score. They are credited in their versions of the terminal inter-
view insofar as they testified that Smith linked the termination to his belief that they
supported the Union.14
We complete our factual recital with an account of a visit made by Ortlieb to the
warehouse a few weeks after the termination. He was discussing a prospective pur-
chase with Smith, and, in the course of it, the latter's brother Clayton came along
and asked Ortlieb whether he was working. Ortlieb replied he had a job through
the holidays with Railway Express, and Clayton replied, "Well, you got what you
wanted there, with the niggers and the union." 15
C. Concluding findings
1. Concerning the termination
This has not been an easy case to resolve, as few credibility issues are. The trying
responsibility for reconstructing events which have become "exposed to the sport
of fugitive and biased recollection" 16 is hardly lightened where witnesses, all too
humanly, are far from being above the battle. The interest that opposing witnesses
have in the result, nothing else appearing, normally enures to the benefit of the
defense, for the burden of proof "rests continuously on the [prosecution] and does
not shift to the [defense]." 17 The General Counsel's burden here would hardly
have been met if all he had to pit against the word of Smith, with all its infirmities,
on the one hand, were the opposing words of Hodges, Crosby, and Nichols, the
self-styled applicants, on the other.
Giving a different dimension to the record, however (apart from the credible
Amesbury, who testified on but one item in the case , supra, footnote 12), were the
objective circumstances and also the demonstratedly credible Ortlieb. We need not
repeat the objective facts here, since they have been amply detailed in the preceding
discussion. They gave mute but telling testimony in vindication of the contention
that this was an outright dischaige and not an economic reduction in force, as
Respondents claimed. Since Smith, by his full acknowledgment of the complainants'
satisfactory record as employees, has ruled that out as a factor to account for what
was manifestly a dismissal of the complainants, we are perforce led to inquire what
could have accounted for this otherwise unexplained hostility. It was a hostility the
true reason for which Respondents, by the character of their discredited defense and
the attendant contradictions and shifts in position, must be found, under well-
recognized authority, to have been trying to conceal.18
"As to the other aspects of the conversation which were not thus fully corroborated,
their versions are held to be no greater than in equal balance with Smith's testimony and
therefore to fail of being sustained This includes Hodges' testimony concerning what
happened, beginning with Clayton Smith's alleged appearance during I-lodges' terminal
interview (supra, footnote 8), and Crosby's testimony, denied by Smith, that Smith
threatened to inform prospective employers of his involvement in a labor dispute.
>s Clayton never testified, and thus never denied the statement attributed to him.
Smith testified that during the discussion of the purchase, not Clayton but Roscoe Owens
was present, and only the prospective purchase was discussed Smith was not corrobo-
rated by either Clayton, the person implicated, or Owens, whose confidential status as an
employee was earlier described by Smith, supra, footnote 6 nor was their failure to testify
accounted for. On the basis of the comparative performance of Ortheb and Smith as
witnesses, the latter's uncorroborated alibi testimony on behalf of Clayton does not
measure up against Ortheb's testimony, and the latter is credited
Crosby too testified to a visit at the warehouse in which Smith ordered him out with a
statement that he "mess with the Union" As stated (supra, footnote 3), Crosby is a dis-
credited witness, for reasons later noted His uncorroborated testimony is not accepted
as against Smith's testimony that lie merely told Crosby not to bother the men, because
they were busy
" Art Metals Construction Company v NLRB, 110 F. 2d 148, 150 (C.A. 2,
L Hand, J )
17 N L R B v. Brady Aviation Corporation, 224 F 2d 23, 25 (C.A 5).
rn See, e g, N.L R B v. Condenser Corporation of America, 128 F 2d 67, 75 (C A. 3)
NLRB. v C TV Ratcliffe, et al , d/b/a Homedale Tractor & Equipment Company,
211 F 2d 309, 314 (CA 9) , N L R.B v Eclipse Moulded Products Company, 126 F 2d
576, 581, 582 (C.A 7) ; N L R B v E C Brown Co., 184 F. 2d 829, 831-832 (C A. 2).
Cf. N.L R B. v. C. & J. Camp, Inc . et at. d /b/a Kibler-Camp Phosphate Enterprise, 216
F. 2d 113, 115 (C.A, 5) ; N.L.R.B. v. International Furniture Company, 199 F. 2d 648,
650 (C.A. 5), enfg 98 NLRB 674.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As was stated by the court in the Condenser case, cited in the last footnote:
[An] employee may be discharged by the employer for a good reason, a poor
reason , or no reason at all, so long as the terms of the statute are not vio-
lated . . . But it does not follow from that undisputed proposition of law
that a failure to give a reason , or giving evasive or contradictory reasons by
management may not be considered in determining the question of fact as
to the real motive for the discharge.
The proposition above is but an application of traditional doctrine governing cases
concerned with motive . And it has its most familiar application in the field of
criminal law, which gives it all the stronger pertinence in a milder, civil proceeding.
The most frequently cited pronouncement of that doctrine is in Wilson v. United
States, 162 U.S. 613. There the Court upheld a charge by the trial judge that the
jury, as the triers of the facts,
had the right not only to take [false] statements [by a defendant] into con-
sideration in determining whether or not the defendant's conduct had been
satisfactorily explained by him upon the theory of innocence, but also to regard
false statements in explanation of defense made or procured to be made as in
themselves tending to show guilt. (pp. 620-621) [Emphasis supplied.]
The principle has had extensive application in Federal and State court decisions.11
This is far from saying that a false defense establishes the forbidden motive in
and of itself. But it is a corroborative circumstance which gives significance to other
evidence which, standing alone, would not have fully spelled out the illegal motive.
As applied to this case, omitting Smith's declarations to the complainants at time of
the discharge and his brother Clayton's remark to Ortlieb attributing his then situa-
tion to his desire for a union, we have activity on the part of Respondents before
the termination which would indicate a purpose to ferret out the persons responsible
for getting the union campaign started, with a suspicion that the complainants were
involved, and a purpose, through interrogation of Ortlieb and Hodges, to ascertain
the identities of the union supporters. Divorced from the rest of the case, it is
not self-demonstrably indicative of an intention to resort to reprisal measures, as,
for example, an outright threat would be. Particularly so when taken with Smith's
assurances against retribution made privately to Ortlieb and openly to the group
immediately after the election.
However, a record cannot be thus fragmented . It is an entire and integral thing,
and one part gives meaning to the other. The portion of the record showing a
purpose in opposition to the Union and the interrogation of employees concerning
their ties with the Union and concerning whether they will vote or had voted for
it, can hardly be divorced from an otherwise rationally unexplained discharge of as
many employees as voted for the Union, all of them with concededly satisfactory
work records. To say otherwise is to say that the discharges occurred out of sheer
caprice or for no reason at all. But even Respondents make no claim to being
thus rationally unmotivated . In an endeavor to assign a rational motivation for the
severance, they tried to paint what was an actual discharge as something which it
plainly was not, and in doing so resorted to assertions rather consistently belied by
conduct giving mute but eloquent testimony to the contrary and all too frequently
in outright conflict with each other. This, under established doctrine previously
described , betrayed an intention to conceal the true motive and thus contributed
further to the inference that the discharges were related to the purpose in opposition
to the Union. Confirming the inference of the causal relation between the pur-
pose and the action taken which rather flowed from the facts themselves, are Smith's
telling the complainants at the time of the termination that he was acting to eliminate
the union supporters from the plant, and Clayton Smith's comment to Ortlieb at-
tributing his plight after the termination to his desire for a union.
Cases such as this seldom present a study in black and white, and this is no
exception. There are elements in Respondents' favor, which, although I discern no
reference to them in Respondents' brief, strike me as important enough to be
weighed in the scales before striking the final balance. Thus there is Ortlieb's
19 Followed : Allen v. U.S., 165 U S 792, 500; Shama v. U S., 94 F. 2d 1, 4 (C.A. 8),
cert. denied 304 U.S. 568; U.S. v. Lindsay, 26'4 F. 2d 94, 96 (C A 4), cert. denied 252
U S. 583. Accord : People v. Buckminster, 207 Ill. App. 230, affd. 282 1I11. 177, 118 NE
497; People v. Santo, 273 F. 2d 249, 254; 43 Cal 2d 319, cert. denied 348 U.S. 959;
People v. McLean, 84 Cal. 480, 24 P 32; People v Taylor, 70 Cal. App 239, 244; 232 P.
998; Cleveland v. McNea, 107 NE 2d 201; 158 O. St. 138; U.S. v. Graham et at., 102
F 2d 436, cert. denied 307 U.S 643.
CLAYTON-WILLARD SALES 1341
testimony that in the preelection incident in which Smith asked him about his voting
intentions , the conversation turned to the question of the likely union supporters,
and Ortlieb named as among them an employee who was in fact retained, Henry
Coroneas. Also, when Smith, immediately after the election, asked Ortlieb how
he had voted, he said he accepted Ortlieb's disclaimer that he had voted for the
Union. In addition, there is the fact which I have gleaned from the formal or
public file in the election proceeding, and of which I take official notice (Case No.
12-RC-341), that the person named as the observer for the Union was James R.
Owens. He is presumably the Roscoe Owens mentioned in other contexts (supra,
footnote 6). This raises a question, to me at least, of why it should not have
been they whom Respondents would have suspected instead of any two of the other
complainants.
I have given ,these factors earnest and sympathetic consideration, but such weight
as they have would seem rather plainly to be overborne by the persuasiveness of
the showing in the remainder of the record that the termination had as its motive
the elimination of all vestige of potential support for any future efforts of the
Union to obtain entry in the Respondents' establishment, whatever the manner by
which Respondents arrived at the belief that the complainants constituted that vestige.
In that connection, I have discredited Crosby's testimony that he overheard Owens
inform Smith of Crosby's act of pledging the other two complainants to support
the Union (supra, footnote 6), and I now discredit, for reasons made clear in the
ensuing subsection, Crosby's testimony that in a visit to Smith's home shortly before
the hearing, Smith said that a few days after the election, Owens informed him
who the Union's supporters were. However, where the purpose is shown to exist
and the action taken has no rational explanation except in the accomplishment of
that purpose, the conclusion that this last was so still stands even if the record
remains obscure concerning the specific journey traveled in arriving at the belief
that the action under inquiry tended to accomplish that purpose. The visita-
tion upon the three complainants was, after all, hardly a matter from the blue.
Smith's questioning and probing of them indicates they were suspect from the
beginning, and in finally striking on November 21, he did hit the actual instigator
and his two pledgees. But whether Respondents' aim was accurate or wide of the
mark is not controlling. What does control is the purpose with which Respondents
took aim and fired; for discrimination is no less an infraction of the statute when
inspired by a belief, however mistaken, that the employee is in tie or sympathy with
a union than when it is the result of actual knowledge that he is. N.L.R.B. v.
Fredrica Clausen, d/b/a Luzerne Hide & Tallow, 188 F 2d 439, 443 (C.A. 3), cert.
denied 342 U.S. 868, and cases cited therein. Smith, throughout his probings, and
Clayton by his remarks to Hodges and Ortlieb before the termination, and by the
respective remarks of both of them on the day of the termination and thereafter,
indicated the fact of their belief in the complainants' sympathy with the Union.
They did not state their sources, as they would hardly be likely to do.
Having carefully considered all factors in the case, pro and con, and after giving
them what I would deem to be their due weight, I conclude that the General Counsel
has met his burden of proof, that he has established by a preponderance of the
evidence that the termination, claimed to be a layoff, was in fact a discharge, and
the discharge would not have taken place but for Respondents' belief that the
complainants had supported the Union and, for that reason, would be likely to sup-
port it in the future. In coming to this conclusion, no suggestion is intended that
there was any basis for criticism in Respondents' purpose not to have the Union in
its plant. That was their right and, as I have noted (supra, footnote 4), they
were entitled to use all legitimate means of persuasion in fulfillment of that pur-
pose. But the choice is one for the employees to make, and the Act guarantees
them freedom in its exercise. This case concerns only the respects in which Re-
spondents, in pursuit of their purpose, overstepped the bounds of the permissible
and invaded that freedom which the Act guarantees.
It is accordingly found and concluded that on November 21, 1958, Respondents
discriminated against Gregory D. Ortlieb, John L. Hodges, and Richard C. Crosby
for the purpose of discouraging membership in the Union, in violation of Section
8(a) (3) and (1) of the Act. In so concluding, I am mindful of a possible attrition
in Respondents' Jacksonville force subsequent to the time here considered. What
this connotes and how it would normally affect the remedy when taken into con-
sideration with the corporate-owned branch of the enterprise in Georgia may well
be pertinent at the stage of compliance. It is not pertinent at this stage, where the
issue is whether an unfair labor practice has been committed, not how it is to be
remedied, with which we shall deal later.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Concerning the independent acts of interference , as alleged
In the circumstances here disclosed , the interrogations of Hodges and Ortlieb prior
to the election , and of Ortlieb immediately thereafter , as described in section B, 2,
above, acquire a coercive thrust and are likewise violative of Section 8(a) (1) 20
It is further concluded that the General Counsel has not sustained by a prepon-
derance of the evidence the allegations of his complaint that Respondents before
the election : Promised the employees wage increases and benefits if the Union were
defeated ; told employees after the election that they would have closed the business
if the Union had won, and forbade employees under pain of discharge from talking
about a union thereafter ; advised an applicant that the Respondents discharged an
employee because he tried to bring a union into the plant; and told a complainant
that prospective employers would be informed by them that he had attempted to
organize a union in Respondents ' place of business.
Also to be recommended for dismissal , as not sustained by a preponderance of
the evidence , is the allegation , inserted by the General Counsel by way of amendment
during the hearing, that Respondent Willard Smith interfered with the rights of
Complainant Crosby "by threats, intimidation , promise of benefit, and other like
acts and conduct , for the purpose of obtaining withdrawal of the charge and com-
plaint." This is based on testimony of Crosby concerning what happened during
two visits he made to Smith's home , at the latter's invitation , toward the eve of
the hearing . Smith and Crosby agree that the subject of the discussion was his
dropping of the charge with the Board and repudiating his sworn representations to
its agents as false. In evidence are two letters from Crosby to the Board 's Regional
Office: the first, in typewriting , purporting to have been prepared April 3, 1959,
merely asks for advice on how to drop the charges . The second , in handwriting,
and purporting to have been written April 6, 1959, says the charges are false and
his conscience "will not let me continue with them ." Crosby testified that neither
of these was sent out until his first talk with Smith , and that while the first letter
was prepared before his first visit , the second letter was written in conformity with
Smith 's instructions to him during the first visit.
Crosby further testified that the visits and the letter followed a call he made to
Smith to ask for a good reference for a job in which he was interested ; that Smith
invited him to his home after Crosby , in response to Smith's question as to how
he stood in relation to the Union , represented to Smith, untruthfully as Crosby now
claims, that he had already sent out a letter to the Board asking how to withdraw
his charges , and that before proceeding to Smith 's home, he had his wife type up
the April 3 letter designed to conform to his untrue representation to Smtih. Crosby
testified that at Smith 's suggestion he sent the second letter , containing the reference
to his conscience , after Smith put him through an inquiry concerning the truth or
untruth of the various allegations of the complaint , told him how his lawyer would
twist him on the witness stand, and held out to Crosby the prospect of being taken
back to his old job at an increased rate now prevailing in the warehouse . Crosby
testified that he was visited by a Board agent after he sent the first letter, and
that during that visit, he repudiated his earlier charges, untruthfully as he now
claims; that after he sent the second letter he was again visited, this time by two
Board agents, to whom he repeated his allegedly untruthful disavowals of his
charges, up to the point where he realized his representations were to be embodied in
writing and sworn to by him, and at that point be reconsidered , and, truthfully as
he claims, reaffirmed his earlier charges and swore to what happened at the meetings
between him and Smith.
Smith admitted the visits by Crosby , but claimed the letters were volunteered and
had been dispatched by Crosby before either of the interviews. I shall not under-
take to reconstruct what happened between these two witnesses , on whose testimony
I am unable to place full reliance. On that score , we would find little assistance in
the flighty memory of Crosby 's wife, whom the General Counsel produced as a
corroborating witness. Sufficient for all relevant purposes here is that I am satis-
fied that Crosby was deliberately evasive about many of the details of his encounters
20Thie complaint fixes the acts of interrogation as having occurred in October and
November Hodges recited that the interrogation of him occurred in August The evi-
dence went in without objection and Smith ' s blanket denial of having engaged in any
preelection inters ogation has been deemed to extend to those testified to by Hodges as
having taken place in August The August interrogation was thus fully litigated and was
as much in issue as the October and November interrogations of Ortheb American News-
paper Publishers Association v N L P B , 193 F 2d 782 , 789, 799-800 (C A. 7), Bert
denied sub none International 1'ypogsapliical Union v. American Newspaper Publishers
Association, 344 U S 812.
CLAYTON-WILLARD SALES 1343
with Smith, including the sequence between the letters and the visits. I hold that
the General Counsel has not sustained the burden of proof concerning the aver-
ments in that portion of his complaint. I also hold, as stated in "The Remedy"
section of this report, that Crosby, by his admitted actions and by the quailty of
his testimony concerning them , is not entitled to a remedy for the violations found.
IV. THE REMEDY
It having been found that Respondents have engaged in certain unfair labor prac-
tices, it will be recommended that they cease and desist from them and take certain
affirmative action in order to effectuate the policies of the Act.
Normally, where it is found that employees have been illegally discriminated
against in respect to hire and tenure, the remedy prescribed is an offer of reinstate-
ment to the employees in question and reimbursement for wages lost in consequence
of the discrimination . This remedy is recommended in full for Gregory D. Ortlieb.
It ,is recommended that it be withheld completely from Richard C. Crosby. We
shall discuss the case of John L. Hodges immediately after that of Crosby.
The fact that an employee has been discriminated against does not automatically
entitle him to reinstatement with backpay. The latter are awards made in the
Board's discretion, where it finds it will effectuate the policies of the Act to require
such a remedy. The Act "is not, it cannot be made a private one to enforce a
private right." It prescribes "a public procedure looking only to public ends." 21
The Board "acts only in a public capacity to give effect to the declared public policy
of the Act." 22
Normally, since the "measures [prescribed in the remedy] relate to the protec-
tion of the employees and the redress of their grievances," 23 the remedy of rein-
statement and backpay is appropriate in vindication of the protections guaranteed
by the Act. This policy, at times, conflicts with a competing policy, such as, for
example, that of safeguarding the Board's processes against abuse.24 When a person,
though found to have been discriminated against, has been determined to have been
less than candid in his dealing with Board agents or in his testimony on the witness
stand, his remedy may be withheld from him in whole or in part, depending upon
the gravity of the offense, and to the extent necessary to vindicate the basic policy
enunciated by Mr. Justice Holmes that "men must turn square corners when they
deal with the government." 25 The rationale, enunciated by the Board in an early
case, is that such false statements are "a gross abuse of the processes of the Na-
tional Labor Relations Board and place in danger the whole scheme of protection
afforded to employees under the Act." 26
In vindication of the policy of encouraging candor among persons who seek
Board aid in "redressing their grievances" under the Act (supra, footnote 23), the
Board has ordered withholding of the remedy, in part as in Wilson & Co., supra,
footnote 26, or in full as in Remington Rand, 13 LRRM 2565, depending upon
gravity of the offense. More recently, a Trial Examiner, on the authority of O'Don-
nell's Sea Grill, 55 NLRB 828, recommended withholding of all remedy to an em-
ployee who had deliberately falsified on the witness stand. See Whirlpool Corpora-
tion, 126 NLRB 1117.
Crosby, on his own admission, and whatever the conflict concerning what
happened between him and Smith, lied to the Board's agents in attempted repudia-
tion of his charges. In doing so, he was misleading them and obstructing them in
an informed performance of their duties. The General Counsel's plea on his behalf
that he had purged himself on the witness stand by making a clean breast of his
admitted wrongdoing would be more impressive if the quality of his testimony con-
cerning that occurrence warranted the Genial Counsel's description. I am not
satisfied it does. Rather am I satisfied, from the confusing and contradictory nature
of Crosby's testimony on that point, that he was deliberately evasive concerning
pertinent details regarding what happened and concerning the sequence of the visits
to Smith in relation to the letters to the Board. Since, as appears from Smith's
endorsement of Crosby on the score of his honesty, the lad would not seem to have
engaged in conduct reflecting on his integrity until the time here discussed, I shall
not dwell further upon the details, except to state that his conduct removes him from
all right to have the Board's processes invoked to remedy the discrimination against
him.
21 A gwilines , Inc v N L R B., 87 F 2d 146, 150 (C A 5).
22 Phelps Dodge Corp v N L R B , 313 U S. 177, 193
23Republio Steel Corporation v. N.L.R.B., 311 U.S. 7, 11
as Cf. N.L.R B. v. Indiana & Michigan Electric Company, 318 U.S. 9, 18-19.
W U.S. v Nashville, Chattanooga & St. Louis Railway Company, 118 U.S. 120, 126.
20Wil8on & Co ., 11 LRRM 2545.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
We come to Hodges. In his account of his terminal interview, he recited that
Clayton Smith entered Smith's office and subjected him to inquiry concerning how
he voted, until he, Hodges, finally confessed that he had voted for the Union. The
credited Ortlieb, who had been outside the office awaiting his turn, testified he saw
no one else enter the room, and while allowing for Ortlieb's possibly being dis-
tracted by conversations with the Company's pricing clerk and a salesman, I never-
theless felt that on balance, Crosby's testimony did not outweigh Smith's denial
and hence failed of being credited. This hardly warrants a conclusion of deliberate
falsification on Hodges' part. His testimony was free of internal contradiction and
he gave every indication of his own confidence in the truth of what he was asserting.
This is exemplified, indeed, by a point which Respondent cites to Hodges' detriment.
It concerned the immaterial question of whether, during his interview with Smith,
Crosby, as Hodges testified, came by the office and left. Ortlieb testified he did not
see Crosby enter, and Crosby testified he was making deliveries and did not get to
the office until shortly toward the end of Ortheb's interview, which followed that of
Hodges. It was of no significance whether Crosby came by during the interview or
not, and while Hodges would thus have had no motive in falsely placing Crosby
there and could without undue embarrassment have acknowledged error in the
light of his cocomplainants' testimony, nevertheless, when recalled to the stand by
Respondent, though his attention was specifically called to their testimony, he un-
hesitantly, and with apparent honesty of conviction, testified that his recollection that
Crosby came by during that interview had not been altered. Hodges' friendship with
the discredited Nichols, who testified to an admission made to him by Smith on
being interviewed as an applicant for a position in response to the ad, has caused
me to scrutinize the record for any showing of complicity between the two. On
that score, there is only the testimony of Nichols that before he applied for the
position or saw the ad, Hodges had told him that he had been discharged because he
had voted for the Union, and that after he told Hodges of his purported interview
with Smith, Hodges put him in contact with the Board's representative and attended
the interview. This creates suspicion, to be sure, but would hardly warrant placing
upon the young man, whose character is otherwise unimpugned, the stigma of
complicity to deceive The record, therefore, does not afford a basis for a con-
clusion that Hodges had been guilty of either deliberate falsification or other mis-
conduct, which would warrant the drastic measure of denying him the normal
remedy for the discrimination against him. He is therefore to be included in the
remedy along with Ortheb.
Accordingly, Respondents should offer to Ortlieb and Hodges reinstatement to
their "former or substantially equivalent positions, without loss of seniority or other
rights and privileges" (The Chase National Bank of the City of New York, San
Juan, Puerto Rico, Branch, 65 NLRB 827, 829), and be made whole for losses in
pay by reason of the discrimination, in accordance with the formula enunciated in
F. W. Woolworth Company, 90 NLRB 289.
Since, as appears, the enterprise has been expanded to encompass two ware-
houses, the new one being in Georgia, we are brought to a consideration of the role
of the new warehouse in the remedy. The new warehouse had an entirely legiti-
mate purpose, and its function was to advance the enterprise as a whole. It now
handles the out-of-Florida business of the enterprise, which formerly was handled
at Jacksonville. This has meant a diversion of business from the Jacksonville ware-
house, with an attendant diversion of both executive, selling, and warehouse per-
sonnel from Jacksonville. Thus Clayton Smith has gone there to manage the place;
a salesman, formerly at Jacksonville, has been detailed there; and Cannady, after his
short stay in the Jacksonville warehouse, is now a warehouseman there. But for
the corporate form of the ownership of that warehouse, the computation of back-
pay and the reinstatement obligation would normally have been based on the man-
power needs of the entire enterprise. The corporate form of ownership of one
branch of the enterprise, however legitimate its purpose, is not an insulator against
the same result here. The corporation, like the partnership, is wholly owned and
controlled by the same two Respondents, and the selection and control of personnel
for both warehouses is in the same two hands. Indeed, as the recipient of business
formerly handled at Jacksonville, with its attendant diversion of manpower needs
from the old warehouse, it is to that extent the "successor" of the partnership within
the meaning of the remedial obligation. Applicable here is the pronouncement in
N.L R.B. v. Arthur J. Colten, et al. d/b/a Kiddie Kover Manufacturing Company,
105 F. 2d 179 (C.A. 6) that-
It is the employing industry that is sought to be regulated and brought within
the corrective and remedial provisions of the Act in the interest of industrial
peace. . . . It needs no demonstration that the strife which is sought to be
CLAYTON-WILLARD SALES 1345
averted is no less an object of legislative solicitude when contract , death, or
operation of law brings about change of ownership in the employing agency.
Respondents control the job opportunities in Georgia no less than in Florida, and
the selection of personnel for the Georgia warehouse , like the one in Florida, is
governed by their determination of the utility of such personnel to the enterprise as
a whole And while in the books the transferred personnel are presumably carried
as employees of the corporation , it is but an incident of the function which that
plays in respect to the enterprise as a whole. To the extent that the new warehouse
would normally play a role in effectuating the backpay and reinstatement remedy
apart from its corporate form of owneiship , its role is still the same , even if Re-
spondents have to invoke the auspices of the corporation as their "agent " for that
purpose, as they do for all other purposes of the enterprise . N.L.R.B. v. Hopwood
Retinning Co., Inc., 98 F. 2d 97, 102 (C.A. 2); 104 F. 2d 302, 305 (C.A. 2).
What the above means is simply that the computation of what the complainants
would normally have earned but for the discrimination would be based on such
jobs, if any , as they would normally have filled at either branch of the enterprise,
but for the discrimination ; and that the manpower needs of the entire enterprise
should be considered in connection with the offers of reinstatement to be made to
them. If, for nondiscriminatory reasons, their former or substantially equivalent
positions are unavailable at the Jacksonville warehouse , but by any chance, such
jobs are available for them in Georgia, then they should be offered such jobs there.
On the other hand, if, again for nondiscriminatory reasons, such j obs are not avail-
able to them at either warehouse , then they , or the one for whom no substantially
equivalent position is immediately available, shall be placed upon a preferential
hiring list, and shall be offered reemployment in a position substantially equivalent
to his former one, as such employment becomes available at either branch of the
enterprise , before other persons are hired for such work . Cf. The Jefferson Com-
pany, Inc, 110 NLRB 757, 761. Also, in the latter instance , backpay shall run
from the date of discrimination to the date the employee in question is placed on
such list , instead of, as normally, to the date of offer of reinstatement.
A word in further clarification of the contingent obligation to offer a position at
the Georgia warehouse : it does not mean that Respondents must necessarily re-
imburse either complainant for the expense of moving from his present residence in
order to be able to accept the offer Such an unqualified obligation does not arise
except where the new location was itself in furtherance of an illegal purpose, which
is not the case here.27 The offer need simply be on a nondiscriminatory basis and
the matter of reimbursement for the expense of moving to the new location hinges
upon Respondents ' normal practice or policy in that regard in shifting or trans-
ferring employees from one warehouse to the other.
The unfair labor practices here found included a discriminatory discharge, which
goes to the "heart of the Act." 28 Therefore , in order to insure "the benefits of
prevention and prophylaxis ," 29 and in order to make effective the interdependent
guarantees of the Act , a broad cease -and-desist order will be recommended 30
Upon the basis of the above findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment of em-
ployees, thereby discouraging membership in a labor organization , the Respondents
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a)(3) of the Act.
2. Thereby and by interfering with, restraining , and coercing their employees in
the exercise of the rights guaranteed in Section 7 of the Act, by coercive interroga-
tion concerning their union affiliation or sympathies, and concerning how they will
vote and did vote in a Board election , Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act
[Recommendations omitted from publication.]
21 Industrial Fabrscatting , Inc., et al , 119 NLRB 162, 173.
21 N T R B v Entwistle DIf9 Co, 120 F 2d 532, 536 (C A. 4)
^ Hutcheson , Judging as Administration, Administration as Judging , 2 Texas L Rev.
(1942), 1, 6
20 Cf N L R B v. Cheney California Lumber Company, 327 U S. 385.
554461-60-vol. 126-86