Dalton's Best Maid Products, Inc.

National Labor Relations Board - Board Decisions

May 24, 1963

142 N.L.R.B. 755 (N.L.R.B. 1963)

DALTON'S BEST MAID PRODUCTS, INC. 755
Dalton's Best Maid Products, Inc. and International Union of
United Brewery, Flour, Cereal , Soft Drink, and Distillery
Workers of America , AFL-CIO. Cases Nos..16-CA-1732 and
16-CA-1761. May 24, 1963
DECISION AND ORDER
On March 7, 1963, Trial Examiner C. W. Whittemore 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 attached Inter-
mediate Report. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report. The Respondent also
filed a 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 [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report and the entire record in this case, including the exceptions and
briefs, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as supplemented herein.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner?
1 In adopting the Trial Examiner 's determination discrediting the testimony of General
Manager Dalton that the November and December 1962 layoffs of Boker, Fuller, and
Robinson were due to lack of orders following the Cuban situation, rather than to the
Respondent's desire to discourage membership in the Union, we also rely upon: (a) the
uncontradicted testimony of Boker that on October 22, 1962, the Respondent discontinued
a weekly Fort Worth-El Paso run lasting from 4 to 5 days, which he theretofore custom-
arily performed, and assigned the run to Merchant Freight Motor Co., a common carrier ;
and (b ) Boker's testimony that in September 1962 Sales Manager Campsey stated to him
that if the drivers didn 't stay away from the Union, the Company "would fire [all of
them] and ship by common carrier." [Emphasis supplied ]
For the reasons stated in the dissenting opinion in Isms Plumbing & Heating Co., 138
NLRB 716, Member Rodgers would not award interest on backpay.
z The Appendix attached to the Intermediate Report is hereby modified by adding the
following immediately below the signature line at the bottom of the notice:
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.
142 NLRB No. 93.
712-548-64-vol. 142-49
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
An original and an amended charge in Case No. 16-CA-1732 were filed on
September 24 and October 17, 1962, respectively, by the above-named labor or-
ganization. Upon these charges a complaint and notice of hearing were issued
and served by the General Counsel of the National Labor Relations Board on
November 8, 1962. In Case No. 16-CA-1761 the same labor organization filed an
original and an amended charge on November 21 and 28, 1962, respectively.' On
January 3, 1963, General Counsel issued an order consolidating the two cases and
a complaint and notice of hearing in the latter case. The above-named Respond-
ent filed answers dated November 15, 1962, and January 11, 1963. The com-
plaints allege and the answers deny that the Respondent has engaged in unfair labor
practices in violation of Section 8(a) (1) and (3) of the National Labor Relations
Act, as amended. Pursuant to notice, a hearing was held in Fort Worth, Texas, on
January 23 and 24, 1963, before Trial Examiner C. W. Whittemore.
At the hearing all parties were represented and were afforded full opportunity to
present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs
have been received from the Respondent and General Counsel.
Upon the record thus made and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Dalton's Best Maid Products, Inc., is a Texas corporation, with its place of busi-
ness at Fort Worth, Texas, where it is engaged in the manufacture and sale of food
products.
During the year before issuance of the complaint it purchased and received goods
and materials valued at more than $50,000 directly from suppliers located outside
the State of Texas.
The complaint alleges, the answer admits, and it is here found that the Respond-
ent is engaged in commerce within the meaning of the Act.
H. THE CHARGING UNION
International Union of United Brewery, Flour, Cereal, Soft Drink, and Distillery
Workers of America, AFL-CIO, is a labor organization admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
The chief issues raised by the complaint arise from the admitted discharge of
one employee, Earl Huffman, in October 1962 and the subsequent temporary lay-
offs of employees Calvin Boker, Darryl Fuller, and Eugene Robinson. Both the
discharge and the layoffs were imposed in a context of management's openly avowed
hostility toward self-organization of the Respondent's truckdrivers.
The sequence of certain relevant events is as follows:
Of the approximately 12 regular truckdrivers employed at the time, 8 signed
union cards when organization began on September 15, 1962. Two days later
the Union filed a petition for certification with the Board. A hearing on the petition
was held October 8. One week later the employment of Earl Huffman was ter-
minated. On October 19 an election was ordered by the Regional Director. On
November 1 drivers Boker, Fuller, and Robinson were laid off 2 days. The elec-
tion was held on November 10, and resulted in the Union being certified on No-
vember 20. Three days later Boker was again laid off, this time for 5 days, and
in mid-December employee Fuller was also laid off for 1 week.
1 These two charges were inadvertently omitted from the formal documents placed in
evidence at the opening of- the hearing. Since the close of the hearing the Trial
Examiner has received a stipulation signed by all parties requesting that the said docu-
ments be received in evidence. The request is granted. The stipulation and the documents
attached are hereby made a part of the record in the case
DALTON'S BEST MAID PRODUCTS, INC. 757
B. Interference, restraint and coercion
The credible testimony of employees involved-testimony which for a substan-
tial part is without specific contradiction-establishes the following facts:
(1) Shortly after employees signed union cards on September 15 J. O. Dalton,
president of the Company, interrogated several employees as to whether or not
they had joined the Union. Dalton also asked employee Posa who had "started"
the organizing.
(2) Late in September or early in October, J. O. Dalton told driver Emerson
that he would give him $200 if he would get three or four other drivers to vote
against the Union. At the same time Dalton told Emerson that there were two
concerns which wanted to buy the business-and that he would sell if the drivers
"went Union." A few days after Huffman was terminated in October, J. O. Dalton
in fact did give Emerson $20, telling him to keep it as "expenses," although Emerson
protested that he had already received an expense check for the trip he was about
to make .2
(3) About a week after other drivers had come to his home to sign union cards
on September 15 driver Calvin Boker was told by Garland Dalton, vice president
and general manager, that if he "persisted" in his union activities he would have to
take an "I.C.C. physical" examination which, because of his faulty eyesight, the
employee knew he could not pass.
(4) During the organizing period Sales Manager Otis Campsey, admittedly a
management representative,
a Asked driver Boker if he was "thinking" of going union. He told Boker that
if they would "stay away from the union" wages would be raised, but if they did not
the drivers would be fired and shipments would be made by common carrier.
b. Asked driver Emerson if he was going to "stay" union, and told him that if
he would vote against it he could have a job as long as he wanted it.
c. Asked driver Day if he would "forget about" the Union were he promised a
raise.3
The foregoing interrogations, threats of reprisals, and promises of benefits not
only constitute interference, restraint, and coercion of employees in the exercise
of rights guaranteed by the Act, but clearly reveal the context of hostility toward
union activity in which the discharge and layoffs occurred.
C. The discharge of Huffman
The employment of Earl Huffman, an over-the-road driver, was terminated on
October 15, 1962. At the time of the hearing he had not been reinstated. The
Trial Examiner concludes and finds that he was effectively discharged as of the
termination date.
The conclusion is reached despite the various and shifting claims made by the
Respondent, through General Manager Dalton, as to the term applicable to the
employee's separation from service. As a witness at the hearing Dalton contended,
in effect, that on October 15 he merely intended to lay off Huffman temporarily, and
admitted that he had told a Board agent on October 22, in an affidavit, that the driver
had been laid off due to a reduction in force, but that he would be "glad" to recall
him when needed. Dalton then claimed that immediately following this interview
with a Board agent his secretary brought to his attention certain derelictions on
Huffman's part as to which he had had no previous knowledge, and that upon being
thus informed he decided that he would consider the temporary layoff to be a perma-
nent discharge. Yet the Respondent's answer, dated November 15, after the date
Dalton claims to have made his decision of discharge, alleges that Huffman was laid
off because of a "necessary reduction in force." Dalton's testimony is fully discredited
by self-contradictions. After twice insisting that he knew of none of three certain
matters until informed of them by his secretary, his later testimony establishes that
he was wholly aware of at least two of them on or before October 15, the date of the
claimed layoff. After admitting, apparently unintentionally, that he knew of these
9 J. 0. Dalton was not called as a witness . Counsel for the Respondent introduced into
evidence a ,letter from a local physician which stated that in his opinion it would be
"detremental" [sic] for him to "appear as a witness at any time" because of previous
heart attacks. No application was made by counsel, however, for the taking of a deposition
3 Campsey admitted (1) having "conversations" with employees about the Union ;
(2) that he asked Day if it was true that "they were going union"; and (3) that he
asked Emerson if be was "going union," but denied having promised Emerson a "job for
life" and having promised Day a pay raise. The denials are not credited.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two matters, one a gas ticket and the other a failure to make out certain I.C.C. logs,
Dalton's testimony makes it plain that in his opinion neither was a serious dereliction,
or a cause for dismissal. He said he checked the gas ticket, and found nothing
wrong. As to the failure to make out the log, he merely spoke in September to
Huffman and another employee who also had failed for some time to make out
the logs. Other evidence suggests the reason why Dalton could not reasonably, if
he would have, used the log factor as basis for a discharge. The testimony of both
employees establishes that they were required to drive for a number of hours
exceeding the limit permitted by Interstate Commerce Commission regulations and
both declined to make out false reports.
And as to the third item-a minor accident causing some damage to a company
salesman's car, undisputed evidence establishes that J. O. Dalton knew of the
incident at the time of its occurrence, nearly 3 months before the discharge, and
took no action regarding it.
In short, the Trial Examiner finds no merit in any of the various claims by Dalton
as to why Huffman was let go.
It is uncontradicted that J. O. Dalton became aware of Huffman's union activity
and adherence, by his own interrogation of the driver as early as September 20.
That his leadership was thereafter and more openly brought to management's at-
tention is shown by the fact that he served as the union representative at the Board
election, and shortly thereafter appeared as one of the two employee members of the
union negotiating committee.
When laid off on October 15 Huffman was told by Garland Dalton that he was
being "let go" because of lack of work. He protested that drivers with less seniority
were being retained. Yet shortly after the layoff-and about a week before the
election-the Respondent sent each of the employees a bitterly antiunion letter in
which it is stated, "We have never reduced the number of people in this plant
because of slow-downs."
The Trial Examiner is convinced and finds that the Respondent terminated the
employment of Earl Huffman on October 15, 1962, to discourage union member-
ship and activity, and that this unlawful dismissal interfered with, restrained, and
coerced employees in the exercise of rights guaranteed by Section 7 of the Act.
D. The layoffs
On November 1, a few days before the scheduled election, drivers Boker, Robinson,
and Fuller were suddenly and without previous notice laid off for 2 consecutive days
by Garland Dalton, being told that there was no work for them. All three were
known union adherents. (As noted above, Garland Dalton had warned Boker about
"persisting" in his union activities. Upon interrogation by J. O. Dalton, Robinson
had admitted that he had joined with others "in this union thing." And when asked
by Campsey, Fuller had admitted that he had joined.)
As a witness Garland Dalton explained this layoff in these words:
Well, for the first time in our lives, since we've been in business out there, right
after that Cuban thing we didn't get an order. For four days we went without
an order. It's one of the most unbelievable things that's ever happened to us.
The Trial Examiner quite agrees with Dalton's characterization. It is unbelievable.
Not only because of the several self-contradictions in Dalton's other testimony, but
also because of certain undisputed and relevant facts. On the second day of the
layoff, when the three drivers reported for work, but were told by Dalton to take
another day off, they found Charles Scallon, who had charge of the drivers and is
an admitted "conduit for management," Carl Koch, J. O. Dalton's grandson, and
others were doing the work which the three drivers customarily performed when not
driving. On this occasion, as they were leaving upon Dalton's instructions, Koch
asked them why. When told, Koch replied that there was plenty of work there
for them. When the three were permitted to return to work, the third, day, there
were six new but temporary employees on the job to help catch up with the work.4
The Trial Examiner concludes and finds that the layoff of the three drivers for
2 days was for the purpose of discouraging union membership.
On November 23, immediately after the Respondent was informed of the Union's
certification, Calvin Boker was again laid off by Garland Dalton, this time for a full
4 The Trial Examiner can place no reliance upon the testimony of Scallon who, as a
witness for the Respondent, at first testified to the effect that the warehouse was full on
November 1 and 2, so certain unloading could not be effected . On cross-examination he
admitted lie could not recall whether or not lie unloaded the material on those dates
DALTON'S BEST MAID PRODUCTS, INC. 759
week. He was merely told that there would be no run for him and to take the
week off.
On December 14 Fuller was also laid off for a similar period, being told by
Dalton that there was nothing for him to do, so he would have to "take a week off."
Dalton gave no credible reason supported by any company records for these
later layoffs of Boker and Fuller. The Trial Examiner is convinced and finds that
the two layoffs in November and December were precipitated by the same unlawful
motive which brought about the layoffs in October, and that all constituted inter-
ference, restraint, and coercion of employees in the exercise of rights guaranteed by
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent unlawfully discriminated in regard to the hire
and tenure of employment of the four employees involved herein, the Trial Ex-
aminer will recommend that the Respondent offer Earl Huffman immediate and full
reinstatement to his former or substantially equivalent position, without prejudice to
his seniority and other rights and privileges, and make him and employees Boker,
Fuller, and Robinson whole for any loss of earnings they may have suffered by
reason of the discrimination against them, by the payment of each of a sum of
money equal to that he normally would have earned during the period, or periods,
of discrimination, with backpay and interest thereon computed in the manner pre-
scribed by the Board in F. W. Woolworth, 90 NLRB 289, and Isis Plumbing &
Heating Co., Inc., 138 NLRB 716.
In view of the serious and continued nature of the Respondent's unfair labor
practices, it will be recommended that it cease and desist from in any manner infring
ing upon the rights of employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, AFL-CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
2 By discriminating in regard to the hire and tenure of employment of Earl
Huffman, Calvin Boker, Eugene Robinson, and Darryl Fuller, thereby discouraging
membership in and activity on behalf of the above-named labor organization, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and the
entire record in the case, it is recommended that Dalton's Best Maid Products, Inc.,
its officers, agents, successors, and assigns, shall:
I Cease and desist from:
(a) Interrogating employees concerning their union adherence in a manner viola-
tive of Section 8(a) (1) of the Act.
(b) Directly or by implication threatening employees with economic reprisals
or promising them benefits to discourage union membership and activity.
(c) Discouraging membership in International Union of United Brewery, Flour,
Cereal, Soft Drink, and Distillery Workers of America, AFL-CIO, or in any other
labor organizations, by discharging, laying off, or refusing to reinstate any of its
employees or in any other manner discriminating in regard to hire or tenure of
employment, or any term or condition of employment.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) In any other manner interfering with , restraining , or coercing employees in
the exercise of the right to self-organization , to form labor organizations , to join or
assist the above-named or 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,
or to refrain from any or all such activities.
2. Take the following affirmative action , which will effectuate the policies of the
Act:
(a) Offer Earl Huffman immediate and full reinstatement to his former or sub-
stantially equivalent position , without prejudice to his seniority and other rights
and privileges , and make him and Calvin Boker , Darryl Fuller , and Eugene Robinson
whole for any loss of pay they may have suffered by reason of the unlawful dis-
crimination against them , in the manner set forth in the section entitled "The Remedy."
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying all records necessary to analyze the amounts of pay due
and the right of reinstatement under this Recommended Order.
(c) Post at its plant in Fort Worth , Texas, copies of the attached notice marked
"Appendix " 5 Copies of said notice , to be furnished by the Regional Director for
the Sixteenth Region, shall , after being duly signed by the Respondent 's authorized
representative , be posted by the Respondent immediately upon receipt thereof, in
conspicuous places , and maintained for a period of 60 consecutive days. Reason-
able 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 Sixteenth Region , in writing , within
20 days from the date of the receipt of this Intermediate Report and Recom-
mended Order, what steps the Respondent has taken to comply herewith .6
fi 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 Circuit 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"
U In the event that this Recommended Order be adopted by the Board , this provision
shall he modified to read: " Notify the said Regional Director , in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO 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 you that
WE WILL NOT interrogate employees regarding their union adherence in a
manner violative of Section 8 (a) (1) of the Act.
WE WILL NOT threaten employees with economic reprisals or promise them
benefits in order to discourage membership in any labor organization.
WE WILL NOT discourage membership of any employee in International
Union of United Brewery, Flour , Cereal , Soft Drink , and Distillery Workers
of America , AFL-CIO, or in any other labor organization, by discharging,
laying off, refusing to reinstate any employee , or in any other manner dis-
criminating against any employee in regard to hire, tenure of employment, or
any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain , or coerce employees
in the exercise of the right to self-organization , to form labor organizations,
to join or assist the above -named or any other labor organization , to bargain
collectively through representatives of their own free choice, and to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities
WE WILL offer Earl Huffman immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges , and make him and Calvin Boker, Darryl Fuller, and
Eugene Robinson whole for any loss of pay they may have suffered by reason
of our discrimination against them.
SKIRVIN HOTEL AND SKIRVIN TOWER 761
All our employees are free to become , or remain , or refrain from becoming and
remaining members of the above-named or any other labor organization.
DALTON 'S BEST MAID PRODUCTS, INC.,
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, Sixth
Floor, Meacham Building , 110 West Fifth Street, Fort Worth, Texas , 76102, Tele-
phone No. Edison 5-4211 , Extension 2131 , if they have any question concerning
this notice or compliance with its provisions.
James Hotel Company , a Corporation d/b/a Skirvin Hotel and
Skirvin Tower and Hotel & Restaurant Employees and Bar-
tenders International Union , AFL-CIO, Local No. 246. Case
No. 16-CA-1737. May 24, 1963
DECISION AND ORDER
On February 26, 1963, Trial Examiner C. W. Whittemore 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 attached Inter-
mediate Report. Thereafter, the General Counsel and the Respond-
ent 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 [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings made by 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 Trial Examiner's findings, conclusions,
and recommendations to the extent consistent herewith.
1. We find, in agreement with the Trial Examiner, that the Re-
spondent violated Section 8(a) (1) of the Act by the following con-
duct : (a) On July 27, 1962, Chef Barnes warned employees that if the
Union "came in" he would no longer assist them to borrow money
from Respondent as he had in the past; 1 that the Respondent would
I Although the Trial Examiner found that Barnes stated he would no longer lend them
money, the testimony is that Barnes stated he would no longer act as intermediary be-
tween them and Mr. James, the Respondent 's board chairman . Member Leedom agrees
with this finding of violation because, insofar as appears from the record, Barnes ' threats
related to loans which the Respondent itself had previously made to employees . See Hill &
Hill Truck Lines, Inc., 120 NLRB 101, 110. He regards as distinguishable the Board's
142 NLRB No. 89.