Dairylee, Inc.

National Labor Relations Board - Board Decisions

Nov 18, 1964

149 N.L.R.B. 829 (N.L.R.B. 1964)

DAIRYLEE, INC. 829
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of District 50,
United Mine Workers of America , or any other labor organization , by discharg-
ing any of our employees or in any other manner discriminating against our
employees in regard to their hire or tenure of employment, or any term or condi-
tion of employment.
WE WILL NOT warn employees that we will never sign a contract with the
above -named Union unless all our employees joined that Union ; threaten our
employees that the plant will be closed and moved if they select the Union as their
bargaining representative ; interrogate our employees concerning their union
activities and the activities of other employees in a manner constituting inter-
ference , restraint , or coercion in violation of Section 8 (a) (1) of the Act; warn
our employees that the Union can do nothing for them ; prohibit our employees
from talking and soliciting for the Union during nonworking time or forbid our
employees from wearing union buttons in the plant ; threaten our employees with
discharge for engaging in union activities ; create the impression of surveillance of
our employees ' union activities ; instruct our employees to use their influence to
discourage union activities of other employees ; or inform our employees that
they have been reprimanded for engaging in union activities.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor organi-
zations, to join or assist the above-named Union or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities.
WE WILL offer Mary Ann Brothers immediate and full reinstatement to her
former or substantially equivalent employment and make her whole for any loss
of pay suffered as a result of our discrimination against her.
All of our employees are free to become or refrain from becoming members of the
above-named Union , or any other labor organization.
PARKER SEAL COMPANY , DIVISION OF PARKER-HANNIFIN CORPORATION
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , Federal
Office Building , Room 2023, 550 Main Street , Cincinnati , Ohio , Telephone No. 381-
2200 , if they have any question concerning this notice or compliance with its
provisions.
Dairylee, Inc. and Local 653, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of Amer-
ica. Case No. 1-CA-4478. November 18, 1964
DECISION AND ORDER
On August 31, 1964, Trial Examiner William J. Brown issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
149 NLRB No. 83.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He also found that Respondent had not engaged in other unfair labor
practices alleged in the complaint and recommended dismissal of
those allegations. Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief.
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 Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed.' The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, aid recom-
mendations of the Trial Examiner with the addition noted below.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner, and orders that Dairylee, Inc., West
Bridgewater,' Massachusetts,, its officers, agents, successors, and
assigns, take the action set forth in the Trial Examiner's Recom-
mended Order with the following addition :
Add the following paragraph as paragraph 2(b), the present
paragraph 2(b) and those subsequent being consecutively reletteied:
"Notify the above-named employee if presently serving in -the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
3 At the hearing the Respondent moved to dismiss the complaint because of non-
compliance with Sections 101.4 and 101.7 of the Board 's Rules and Regulations and state-
ments of Procedure , Series 8, as amended. Specifically the Respondent alleged that the
General Counsel had failed to investigate the charge or to afford Respondent an oppor-
tunity to settle the case before the issuance of the complaint. While we agree with the
Respondent that its motions were ngt'Cintimely in view of the-fact that issue had been
joined by the service of an answer to the complaint , nevertheless the motions were properly
denied. Compliance with the Board's Statements of Procedure in a complaint case is not
a jurisdictional requirement. See Un4ted Steelworkers of Amer", AFL-CIO (Boyles
Bros. Drilling Company), 123 NLRB 124. Furthermore , the failure of the General Counsel
to afford the Respondent an opportunity to settle the case before the issuance of the com-
plaint did not prejudice Respondent since the record shows that it was given an oppor-
tunity to settle on numerous occasions after ' the complaint was issued, but came forth
with no offer.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended , hereinafter referred to as the; Act, commenced with a charge filed by the,
above-indicated Charging Party; hereinafter' sometimes referred to as the Union, on
February 11, 1964 . ^ Thereafter the General Counsel of the National Labor Relations
Board , acting through the Board 's Regional Director for Region 1, issued the com-
plaint herein on March 25 , 1964 . The complaint alleged , in addition to jurisdictional
DAIRYLEE, INC. 831
matters, the commission of unfair labor practices defined in Section 8(a) (3) and (1)
of the Act by the above-indicated Respondent , hereinafter sometimes called the
Company or Dairylee.
The unfair practices alleged relate to the termination of Gary Saccocia on Febru-
ary 7, 1964, allegedly in reprisal for his activity on behalf of the Union , and to alleged
instances of interference with employees ' organizational rights under Section 8 (a) (1)
of the Act at or about the time of his termination . Respondent 's duly filed answer
denies that it is engaged in commerce within the meaning of the Act, asserts that
Saccocia voluntarily left its employ , and denies the commission of any and all of the
unfair labor practices alleged.
On the complaint and answer hearing was held at Boston , Massachusetts, on
April 21 and 22, 1964, before Trial Examiner William J. Brown . All parties appeared
and participated as noted above , being accorded full opportunity to present evidence
and argument on the issues.
At the outset of the hearing Respondent 's counsel presented motions to dismiss the
complaint for alleged noncompliance with Sections 101.4 and 101 . 7 of the Board's
Statements of Procedure . The Trial Examiner denied both these motions on the
grounds they were not litigable before the Trial Examiner following the issuance of
the complaint and at the time and place of the hearing , issue having been joined by
the complaint and answer.
Subsequent to the hearing , the General Counsel filed a motion to amend the tran-
script which motion was accompanied by proof of service on the other parties. No
opposition to the motion having been received and it appearing necessary and proper,
the motion is granted and the transcript is deemed amended accordingly , copies of
the motion to amend being heieby incorporated as part of the record . A brief filed
by the General Counsel has been fully considered.
Upon the entire record herein , and on the basis of my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
It appears from the complaint and answer that Dairylee is a corporation organized
under the laws of the Commonwealth of Massachusetts and maintains its principal
office and place of business in West Bridgewater , Massachusetts, where it is engaged
in the retail and wholesale sale and distribution of milk, related dairy products, and
packaged orange juice . At all material times Respondent 's direct interstate purchases
of orange juice amounted to approximately $3,600 per year . While Respondent's
sales are all within the Commonwealth of Massachusetts it was engaged during 1963
and the first quarter of 1964 in an arrangement whereby it purchased and received
milk having an annual cost of about $35,000 from a Vermont dairy and designed for
temporary storage in Respondent 's storage facilities and transhipment by Respondent
to another , unrelated dairy. In view of the fact that Respondent 's direct interstate
receipts are regularly recurring and not insubstantial and since its annual gross sales
exceed $500,000, I find that it is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act , and that the volume of its operations are such as
to justify and require the assertion of jurisdiction on the part of the Board.
If. THE LABOR ORGANIZATION INVOLVED
The evidence , including a stipulation of the parties entered into at the hearing, indi-
cates and I find that the Union is a labor organization within the purview of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and summary of events
Dairylee's merchandising operations are carried out in the area about Brockton,
Massachusetts , where it has been engaged for at least 10 years in the wholesale and
retail sale and delivery of milk, related dairy products , and orange juice. Dairylee's
president is Fred Walsh who appears to be in active and immediate control of
Respondent 's day-to-day operations . Reporting directly to Walsh are two employees,
Joseph Smith and Lloyd Tighe, whose status is in issue in this proceeding. The
General Counsel's position is that these two are supervisory employees and that
through their agency Dairylee acquired knowledge of Saccocia 's union activities and
engaged in acts of interference within the purview of Section 8 (a) (1) of the Act.
Smith, Walsh's son - in-law, and Tighe appear to be the day-to-day connecting link
between Walsh and an indeterminate number of wholesale and retail route foremen
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who are assigned to oversee and assist the operation of the 16 wholesale and retail
driver-salesmen of whom Saccocia was one. Neither Smith nor Tighe testified in the
hearing and an understanding of their authority and responsibility must be derived
from testimony of Saccocia as to what he observed them do and from Walsh.
While the evidence indicates that neither Smith nor Tighe regularly substitutes for
Walsh in his absence, that role apparently being performed by one Arthur Turner, a
friend having no apparent connection with Dairylee other than his accommodating
Walsh by managing it in his occasional absences , what concrete positive evidence there
is as to the status of Smith and Tighe requires the conclusion that they are supervisors
within the purview of the Act. Thus the evidence is uncontradicted that Saccocia
was hired by Smith , and by him was assigned his initial list of customers and given
instructions as to his duties and responsibilities as a retail driver for Dairylee. Also
according to the uncontradicted testimony of Saccocia , Tighe also hired at least one
retail route driver. The evidence also indicates that driver-salesmen meetings are
held on a fairly regular quarterly basis and they are presided over by Smith or Tighe.
Sometimes the meetings are held in the homes of Smith or Tighe. Saccocia testified
that any problems he encountered calling for management advice would first be taken
up with his foreman and if the problem remained unresolved would then be taken
up with Smith or Tighe.
The retail driver-salesmen start out with a list of customers which apparently either
enlarges or diminishes dependent on the enterprise of the driver and the development
of the general area in which he circulates . At the quarterly meetings presided over by
Smith or Tighe the route salesmen are encouraged to increase their sales but apparently
there are two important limitations on their sales efforts : ( 1) There appears to be a
legal prohibition against sales below cost , and (2 ) drivers are prohibited from solicit-
ing customers of Dairylee 's subdealers . The evidence in the instant case involves
Dairylee's relations with a subdealer known as Kramer Dairy with headquarters in
South Weymouth and retail routes running into an area in Brockton known as The
Development.
Among the issues in the instant case is whether or not Dairylee interfered with the
organizational rights of employees by the February 5, 1964 , announcement of certain
employee benefits. The evidence indicates that the Company operates on a calendar
year basis and at the conclusion of the closing of its books of account in 1962 and
1963 announced certain benefits for employees . Early in 1963 an additional paid holi-
day appears to have been granted and the evidence indicates that at a driver-salesmen
meeting held in August or September 1963 and presided over by Tighe, representatives
of an insurance company were present at the Company 's invitation for the purpose of
explaining to employees certain benefits available through their company. There has
been in effect at all times a hospitalization and medical insurance program. The
premiums on this were paid by the employees themselves prior to February 5, 1964,
although the Company furnished the bookkeeping involved in the deduction of
premiums from paycheck and payment over to the insurer. There also, appears to
have been in effect at all times a vacation program , as evidenced by the fact that on
Saccocia 's separation he was given 2 weeks' vacation pay in addition to other moneys.
In any event the case draws in issue the allegations that the February 5, 1964 , bulletin
board announcement of an additional paid holiday, hospitalization insurance at no
cost to the employee , and three sets of uniforms furnished and cleaned by the Company
constituted interference , restraint , and coercion.
The principal issue in the instant proceeding relates to the termination of Gary
Saccocia on February 7, 1964. The General Counsel contends that he was discharged
on that date in reprisal for his activities on behalf of the Union ; the Respondent's
answer on the other hand asserts that Saccocia voluntarily resigned on that date when
he was charged with violation of the rule against soliciting Kramer's customers.
Saccocia has been a member of the Union for some 6 years but, apparently, on a
withdrawal card following his military service and employment at Dairylee. Some-
time in December 1963, Saccocia talked to his fellow drivers about the possibility of
union representation ; at that time he also talked about this to Smith and Tighe, men-
tioning to Smith certain benefits including uniforms, insurance , and sick leave that
were afforded under the Union 's contract with another dairy . Also, about this time
Saccocia talked to Union Business Agent George O'Donnell . He appears to have
been accompanied by employee John Yannone , a route salesman and sometime fore-
man. Sometime prior to February 7, 1964 , Saccocia arranged with O 'Donnell to
schedule a union organizational meeting for Dairylee employees at the Russell Club
in Brockton in mid-afternoon of February 10, at an hour when the drivers would have
completed their routes and finished their accounting for the day . On the afternoon
of February 6, Saccocia appears to have had some conversation concerning union
benefits with Tighe and thereafter a heated exchange with Walsh. There is a sharp
DAIRYLEE, INC. 833
conflict in the evidence as to the content of the conversation between Saccocia and
Walsh on that occasion and this is more fully discussed below. In any event , as noted
above, Saccocia 's employment was terminated the following day.
B. The termination of Gary Saccocia
Saccocia was hired January 2, 1962 , as driver-salesman for a retail route covering
part of the Brockton area. His career as a driver-salesman appeas to have been a
relatively stormy one . Marjorie Prater , Dairylee's bookkeeper and office manager
for the last 10 years whose testimony I credit in this regard , testified that about a
month after Saccocia 's employment a shortage of some $ 150 was discovered in his
books. This appears to have been attributable to Saccocia 's shortcomings in view of
the fact that his predecessor 's books had been taped . At that time the arrangement
was made that he would repay Dairylee at the rate of $2 per week. Following this
initial shortage there appears to have been no difficulty respecting his accounting for
moneys except for a minor discrepancy of some $7 discovered after his separation
from employment . The testimony of Walsh , however , indicates that unlike the situa-
tion normally to be expected , Saccocia's books consistently showed him entitled to
excessive credits in his accounts.
In addition to the problem created for Walsh by his inability to fathom Saccocia's
books, there appears to have been recurring difficulties between Saccocia and' his
foremen . The testimony indicates that he had worked under three foremen, Calabris,
Yannone, and Mullane and was scheduled to be transferred to a fourth foreman, Kivi,
at the time of his separation . Also according to the testimony of Walsh , which I
credit in this regard , Saccocia 's antics about the loading platform infuriated employee
Phillips who complained of Saccocia 's conduct and threatened to injure him. There
is also testimony , which I credit , that Saccocia frequently used vile language both to
the office help and to the customers and was rebuked several times for this. There
appears also to have been an incident concerning damage to Dairylee 's truck while
operated by Saccocia for which another driver was responsible ; the other driver paid
$25 to Saccocia with the understanding that he would take care of the necessary
repairs to Dairylee 's truck . The repairs were never made and Saccocia at all times
up to the time of the hearing retained the $25 with the insistence that the money was
not owed to the Company but was owed to the truck and might as well be held in the
trusteeship of Saccocia as anyone else.
The evidence on the whole comports with Saccocia 's demeanor in the hearing room
as a rather assertive , somewhat belligerent, individual . There is also evidence indicat-
ing that Saccocia changed customers on a monthly basis to a weekly basis, sometimes
against their will, with the result that at least one customer was lost to Dairylee. This
does not appear to have been one of his major difficulties or to have had any substantial
effect on his separation.
Sometime in November 1963 Saccocia picked up a new customer , a Mrs. Boland.
She had previously been a customer of Kramer 's. At that time Kramer complained
to Walsh and Saccocia , asked by Walsh to justify his apparent violation of the rule
against soliciting Kramer 's customers, explained that other customers of his who were
neighbors of Mrs. Boland had prevailed upon her to become a customer of Saccocia.
According to Saccocia 's testimony , Mrs. Boland had previously quit Kramer on two
occasions and had for a time been going to the store for her milk. Saccocia apparently
offered her a cut rate , according to the testimony of Prater whom I found credible,
but at some time or other he increased her price to the regular rate and thereafter cut
it again . Walsh testified that sometime in late November or early December , follow-
ing Kramer 's complaint on the loss of Mrs. Boland as a customer , Saccocia attributed
Mrs. Boland 's switch in allegiance to some personal difficulties with Kramer's dairy.
In any event the evidence is conclusive that there was an established rule against
soliciting Kramer's customers and that in December 1963 a notice was posted in
Dairylee's premises to the effect that any driver soliciting Kramer 's customers would
be discharged . It also appears from the credited testimony of Prater and Walsh that
on February 7 Kramer called again with a complaint of solicitation of his customers
and said that it was the same one as had previously been guilty of this offense.
In the meantime , on or about January 28 , 1964, Saccocia had the second of his
conversations with Smith concerning the Union and the benefits that other dairies had
granted under union agreement ; at that time he told Smith of his plans to use the
Union as a means to getting comparable benefits from Dairylee . Thereafter, about
February 5, the Company announced new employee benefits in the nature of three
sets of uniforms , company furnished and cleaned , paid medical insurance, and an
additional paid holiday , Washington 's birthday . On February 6, the day following
the announcement of the new benefits, Saccocia had a conversation in Dairylee's plant
with Tighe and Yannone . In the course of this conversation , according to the testi-
7 70-076-65-vol . 149--54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony of Saccocia , he said to Tighe that the-new benefits were due to the employee
interest in the Union . At some point in this conversation Walsh came on the. scene
and had a stormy disagreement with Saccocia . According to Saccocia , Walsh said
that he had heard enough of the Union and that Saccocia was pretty sneaky in his
organizational efforts; calling Saccocia a vile name, Walsh denied that he would be
discharged for union activity but asserted that .he would be around for a long time.
Walsh admits calling Saccocia the foul name in question , asserts that he wag incensed
upon overhearing Saccocia grossly exaggerating the profit margin enjoyed by Walsh
on the dealer's efforts.
The following day, February 7, 1964, was the day of Saccocia 's separation, from
the Company and there is substantial conflict ' in the testimony as to the occurrences on
that day.' According to Walsh, Kramer called in the morning of that day ,- while
Saccocia was out on his route , and complained of Saccocia 's soliciting his customers:
Walsh's testimony is corroborated by Prater . According to Walsh , after Kramer's
call on the morning of February 7, he thought about the situation for a few minutes
and then instructed Prater to prepare a statement showing Saccocia as all clear in his
books of account . Kramer's complaint , according to Walsh , made ' it necessary that
he take action and Walsh's testimony indicates that he expected Saccocia would resign
when confronted with the second complaint.
Saccocia returned to Dairylee 's yard about 2 p:m: on February 7, turned his cash in,
and heard that Walsh wanted to see him in his 'office. ' Prater ' had already started
auditing Saccocia 's books when he arrived .- According to Saccocia 's account of the
conversation in Walsh 's office, Walsh appologized for his intemperate talk of the
preceding day and told Saccocia that he"thought they had better part company.
According to Saccocia they ' had found him $38 short in his accounts . Later this was
reconciled .' Walsh at some time--presented him with a'statement " ( in evidence as
General Counsel's Exhibit * No. 2) 'dated February 7 and asserting that Saccocia
voluntarily ; left' Daiiylee's employment as of that date with a clean reco rd.' This was
designed to be 'signed by Saccocia ' and witnessedby Walsh 'and Prater .' According to
Saccocia he was asked to sign this statement early in the afternoon and'ultimately
signed ,'it' at 7:30 in ' the evening after there had been a complete tape audit of his
books. Saccocia asserted that at some point duririg .their discussion of that day Walsh
indicated that the statement would be helpful as -a reference to him in seeking other
employment : ' , , • ' - -'i' ' ,
According , to ,Walsh, Saccocia said at an early point in ' their ' conversation of that
afternoon , "I guess this is it:" In'this regard he.is'in-effect coiroborated 'b'y,Prater
who attributed to Saccocia the statement at 'an early point of the `discussion ` of that
after̀nbon "I guess I'm all through ." There , is no indication as to when the ' second
solicitation by 'Saccocia -of Kramer's customers occurr'ed 'although ' the evidence does
indicate that Kramer telephoned his complaint to`Walsh on the morning of Febru-
ary 7. Saccocia testified that throughout the entire conversation on the afternoon-and
evening of February 7 there was no mention of Kramer 's name. On her ' cross-
examination Prater testified that she còuld not recall hearing anything 'about,the
morning complaint from Kramer during the part of the afternoon conversation which;
according to her testimony was substantial ; she heard between Walsh and Saccocia
in'tfie office.
Saccocia denied that he quit, General Counsel 's Exhibit No. 2 to the contrary not-
withstanding . I interpret the accounts of the occurrences of the raftemoon of Febru-
ary 7 as establishing ' a discharge ' of'Saccocia . I cannot believe that Saccocia would
voluntarily resign his employment . Such a course of conduct would be completely
inconsistent with the clear indications of bis - determination to'get the Union in and'to
promote his own commissioned earnings with ' Respondent .' His continued interest in
the organizational situation is demonstrated ' by' the ' fact that he, appeared at, the
Russell Club in Brockton ' for the union meeting 'scheduled- on February 10 and, when
no driver-salesmen employed . by Dair 'ylee attended ' the meeting; Sadcocia 'went to
Dairylee's premises and observed the drivers enjoying ' unprecedented largesse in the
nature of free sandwiches and beer , benefits which had been previously granted only
on'the occasion 's of meetings 'and never before 'on'Respondent's premises.
In reaching the conclusion that Saccocia did not quit but , instead , was discharged, I
attach greater significance to the , words and conduct of the interested participants than
I do to the wording of the . document in evidence as General Counsel 's Exhibit No. 2
which ,`' as'noted above , recites a voluntary departure from employment . I am not
urged that any , considerations ' of parol evidence 'rules preclude' my reliance on the
surrounding facts and circumstances and, indeed , where,the issue is whether there was
an agreement , as distinguished from what are the term's of an',admitted agreement,
the parol evidence rule would ' not preclude resort to surrounding indicia of the realities
dehors the four 'corners of the writing . See Am . ,Jur., Evidence §`091 * Jones;
DAIRYLEE, INC. 835
Evidence § 466, citing inter alia Thomas v. Barnes, 156 Mass. 581, 31 N.E. 683. I
conclude that Walsh's statement opening the February 7 interview in the office to the
effect that they had better part company plainly amounted to a discharge.
There is testimony from Prater and Walsh which is undenied by Saccocia and
credited by me, indicating that after the termination of events at the dairy on the
afternoon and early evening of February 7, Saccocia, while still in the dairy, tele-
phoned customers and said that he was not employed as a Dairylee driver anymore
and urging them to stop taking Dairylee products. Neither account attributes to him
the use of words indicative of a voluntary quitting and the urge to boycott is as con-
sistent with discharge as with resignation. 1 find the realities constituted a discharge
rather than a quit.
Having arrived at the determination that Saccocia was discharged rather than quit
his employment, there remains the question as to whether he was discharged in reprisal
for his union activities. I conclude that he was discharged because of his leadership
in advocating the Union and not because of his violation of the rule against soliciting
Kramer's customers. In this regard I rely primarily on the clear indications of all the
testimony that there was no discussion of the second Kramer incident at any time
on February 7 during the termination conference. If the discharge were really based
upon the solicitation of Kramer's customers I believe it inevitable that Saccocia would
have been confronted with the charge. I reach this conclusion even though there are
indications that Walsh believes Saccocia had given somewhat of a "cock-and-bull"
story when charged with the earlier solicitation.
I am also impelled to this conclusion by virtue of my inability to credit Walsh's flat
denial that he had absolutely no knowledge of union activity until subsequent to the
time Saccocia was terminated. In this area I credit Saccocia's account of his conver-
sation with Smith and Tighe in which they plainly indicated knowledge of his union
activity. It seems to me unlikely that they would fail to transmit their intelligence to
Walsh. Also 1 credit Saccocia's testimony summarized above and attributing to Walsh
the accusations of sneaky union organizational efforts made on the afternoon of
February 6. I credit also Saccocia's account, including that portion contained in
amendments to the transcript which establish that Walsh overheard the unionization
argument between Saccocia and Tighe before Walsh's entrance on the scene.
Respondent has painted too black a picture of Saccocia to be convincing. If he
were guilty of the numerous derelictions and defects attributed to him by Walsh and
Prater, he probably was deserving of discharge. However, the evidence here indicates
that he was discharged only after he had commenced organizational efforts and
Respondent not only knew of his efforts but had condemned them strongly and, as
hereinafter indicated, had taken steps amounting to interference as a means of deter-
ring them . Furthermore there appears to have been condonation or at least toleration
of the many shortcomings attributed to Saccocia for the 2 years of his employment up
until his activities in the months immediately prior to his discharge. Any shortages in
his accounts were limited to his initial weeks of work and were repaid as pointed out
above in installments . The vile language concededly was eliminated insofar as Prater
was concerned. The testimony concerning difficulties with his foreman is seen to be
insignificant in view of Prater's concession on cross-examination that Saccocia may
have been kept in the same group of drivers at all times with only the foremen being
changed for reasons apparently unrelated to Saccocia's alleged intransigence. In
short, viewing all the alleged deficiencies of Saccocia, it appears that they were either
eliminated, tolerated , or insubstantial and clearly were not alluded to at the time of
his separation.
Viewing the evidence in its totality, I find it to preponderate in favor of the conclu-
sion that Saccocia was discharged because of his activity in support of the campaign
to bring the Union in to Dairylee.
C. Interference, restraint, and coercion
The acts of interence, restraint, and coercion alleged in the complaint relate to the
February 5 posting of increased employee benefits and to the conversation between
Tighe and Saccocia on the afternoon of February 6 and the ensuing conversation
between Walsh and Saccocia on that same afternoon.
1. Announcement of benefits
With respect to the February 5 announcement of new benefits, the evidence indicates
that the announcement was made shortly after Saccocia's talk with Smith about the
benefits available under the Union's contract with another dairy. On the other hand,
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there is uncontradicted testimony from Walsh and Prater that it was a regular practice
of recent years to grant improvements and benefits following the closing of the Com-
pany's books at the end of the calendar year. Walsh testified, and his testimony is
not contradicted, that an improvement in employee benefits had been announced each
year since 1961 following the closing of the books. Also the evidence indicates that
the subject matter of group insurance and uniforms had been frequently discussed in
employee meetings. Apparently the Company had under consideration long prior to
the advent of the Union some improvement in this regard, as appears from the
sponsorship of these subjects by Smith and Tighe and the fact that insurance company
representatives attended at least one of the meetings. At least until the Union
acquired a majority and asked recognition the Respondent was under no obligation to
refrain from continuance of its normal practice. I find that the General Counsel has
not sustained the burden of establishing that the February 5 announcement of benefits
amounted to interference, restraint, and coercion of employees in their organizational
effort.
2. Interrogation
The complaint alleges that Tighe interrogated employees concerning union activities
on February 6, 1964. Saccocia testified that on the afternoon of February 6, Tighe
told him that Walsh wanted to know why the employees were unhappy. I credit
Saccocia's testimony and I find that Tighe did put this question to Saccocia and
Yannone. In view of the fact that Saccocia had previously taken the initiative in
talking to Smith and Tighe about his organizational efforts and the benefits he pro-
posed to seek through the Union's assistance, I cannot find any interference, restraint,
or coercion in this question by Tighe. There was no attempt to discover who the
union adherents were in addition to Saccocia and Yannone and it would not appear
that this exchange between Tighe and the two employees was anything other than an
innocuous passing the time of day.
3. Threats to close the plant
Reference has been made above to the talk among Tighe, Saccocia, and Yannone
in the plant on the afternoon of February 6. Saccocia's account of that discussion is
to the effect that after asking Saccocia why employees were unhappy, the ensuing
reference to Walsh's recent announcement of new benefits and Saccocia's rejoinder
that the management's action had been dictated by the union activity in the plant,
Tighe said that Walsh would lock the doors before letting the Union into the plant.
Walsh testified that he never threatened to close the plant nor did he authorize anyone
else to issue such a threat. Tighe did not testify.
In the absence of a denial from Tighe who was not called to the stand, I credit
Saccocia's account of this conversation which would include the utterance by Tighe
that Walsh would close the plant before letting a union in. As discussed above, I find
that Tighe was a supervisor. In view of the provisions of Section 2(13) of the Act,
Walsh's testimony to the effect that he did not authorize anyone to threaten the closing
of the plant is not sufficient to immunize Dairylee from the responsibility for Tighe's
utterance. I find and conclude that Dairylee through Tighe threatened to close the
plant rather than recognize the Union and thereby engaged in interference, restraint,
and coercion within the scope of Section 8 (a) (1) of the Act.
4. Berating and maligning of Saccocia
The evidence more fully outlined above establishes that during the course of the
heated discussion between Walsh and Saccocia following that among Saccocia,
Yannone, and Tighe, on the afternoon of February 6, angry words were exchanged
between Walsh and Saccocia in the course of which Walsh, according to his own
concession , called Saccocia a foul name.
Saccocia's account is that while he and Tighe were together, Walsh joined them and
said, "It's pretty sneaky of you trying to organize these guys and win them over" and
that he was "pretty small and a no good bastard." According to Saccocia's account,
Walsh's reference to him as "sneaky" and "a no good bastard" plainly had reference
to his organizational efforts on behalf of the Union.
I credit Saccocia's account of this conversation and find that in the course of it
Walsh in a fit of anger called Saccocia "sneaky" and "a no good bastard" because of
his union organizational efforts. This vilification of Saccocia plainly constituted inter-
ference with the exercise of the rights guaranteed in Section 7 of the Act and con-
stituted an unfair labor practice defined in Section 8 (a) (1) of the Act.
DAIRYLEE, INC.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
837
The unfair labor practices of the Respondent Employer set forth in section III,
above, occurring in connection with the operations of the Company described in
section I, above, have a close , intimate , and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
In view of my finding above that Respondent discriminated with respect to the
employment of Gary Saccocia in reprisal for his activities on behalf of the Union, I
shall recommend that Respondent be required to offer him immediate and full rein-
statement to his former or a substantially equivalent position , without prejudice to his
seniority or other rights and privileges , and make him whole for any loss of earnings
he may have suffered as a consequence of the unlawful discharge by payment to him of
a sum of money equal to that which he normally would have earned as commissions
from the date of his discharge to the date of Respondent's offer of reinstatement, less
net earnings during such period. The back earnings and interest thereon should be
computed in the manner prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the findings set forth above that the Respondent has in several different
particulars engaged in acts of interference , restraint, and coercion respecting
employees ' organizational rights under the Act, and having in mind the variety of
these acts of interference and the fact that they occurred in connection with the
discriminatory discharge of Saccocia , I shall recommend that Respondent be required
to cease and desist from infringing in any manner upon employees ' rights under
Section 7 of the Act.
On the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Sectioli 2 (6) and (7) of the Act.
2. The Union is a labor organization within the purview of Section 2(5) of the Act:
3. By threatening employees with the closing of the plant in reprisal for union
organization and by vilification and calling derogatory names to a leader of organi-
zational efforts on behalf of the Union, the Respondent has engaged in unfair labor
practices defined in Section 8 (a) (1) of the Act.
4. By discriminating with respect to the tenure of employment of Gary Saccocia,
thereby discouraging membership in the Union, Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
6. Respondent has not engaged in unfair labor practices alleged in the complaint
and not specifically found herein to have been committed.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law , and upon the
entire record in this case , I recommend that Respondent , Dairylee, Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening to close the plant in reprisal for union organization , vilifying,
disparaging , or calling derogatory names to employees engaged in organizational
activity, or in any other manner interfering with, restraining, or coercing employees
in the exercise of their rights under Section 7 of the Act.
(b) Encouraging or discouraging membership in the Union, or any other labor
organization of its employees , by discriminating against employees in any way with
respect to hire, tenure, or any term or condition of employment.
2. Take the following affirmative action which I find necessary and appropriate to
effectuate the policies of the Act:
(a) Offer to Gary Saccocia immediate and full reinstatement to his former or a
substantially equivalent position , without prejudice to his seniority or other rights and
privileges , and make him whole for any loss of earnings suffered as a result of his
discharge in the manner set forth in the section of this Decision entitled "The Remedy."
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports , and all other records necessary to determine the
amount of backpay due under the terms of this Recommended Order.
(c) Post at its plant in West Bridgewater , Massachusetts , copies of the attached
notice marked "Appendix A ." 1 Copies of said notice, to be furnished by the Regional
Director for Region 1, shall , after being duly signed by Respondent 's authorized
representative , be posted by it immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter , in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered , defaced, or covered
by other material.
(d) Notify the Regional Director , in writing , within 20 days from the date of
this Decision and Recommended Order, what steps it has taken to comply herewith.2
I recommend that the complaint be dismissed insofar as it alleges violations of the
Act not specifically found herein.
1 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order " shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order "
2 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read, "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT discharge or otherwise discriminate against employees with
respect to any term or condition of employment because of their participation in
organizational activities on behalf of Local 653, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America , or any other
labor organization.
WE WILL NOT threaten employees with the closing of the plant, nor will we
call them names of derogatory terms on account of their participation in union
organizational efforts.
WE WILL offer immediate and full reinstatement to Gary Saccocia , without
prejudice to his seniority or other rights and privileges , and make him whole for
loss of earnings suffered as a result of his discharge.
All our employees are free to become or remain members of the above-named
Union , or any other abor organization , except insofar as their rights in the latter
respect may be affected by an agreement lawfully entered into under the provisions
of Section 8 (a) (3) of the Act.
DAIRYLEE, INC.,
Employer.
Dated--------- ---------- By-------------------------------------------(Representative ) ( Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 24 School
Street, Boston , Massachusetts, Telephone No. 523-8100, if they have any question
concerning this notice or compliance with its provisions.