Ebner Bros. Packers

National Labor Relations Board - Board Decisions

Mar 31, 1964

146 N.L.R.B. 546 (N.L.R.B. 1964)

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Twenty-sixth Region, shall, after being duly signed by an authorized
representative of the Respondent, be posted 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 the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Twenty-sixth Region, in writing,
within 20 days from the date of the receipt of this Recommended Order, what steps
the Respondent has taken to comply herewith.13
13 If this Recommended Order is adopted by the Board, this provision shall be modified'
to read: "Notify the Regional Director for the Twenty-sixth Region, 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, we hereby notify our employees that:
WE WILL NOT threaten our employees with plant closure or other reprisals
if they select International Ladies' Garment Workers' Union, AFL-CIO, or
any other labor organization, as their bargaining representative.
WE WILL NOT engage in conduct designed to create the impression of im-
pending plant closure if the employees select the above-named labor organiza-
tion to represent them.
WE WILL NOT place our employees in a position where they must declare
themselves for or against the International Ladies' Garment Workers' Union,
AFL-CIO, or any other labor organization, or otherwise interrogate our em-
ployees regarding their union sympathies or activities in a manner violative of
Section 8 (a) (1) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their rights guaranteed under Section
7 of the Act.
All our employees are free to become or remain members of International
Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, or
to refrain from such membership.
EARLE INDUSTRIES, 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, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone
No. 534-3161, if they have any questions concerning this notice or compliance with
its provisions.
Ebner Bros. Packers and United Packinghouse , Food and Allied
Workers, AFL-CIO . Cases Nos. 16-CA-1848, 16-CA-1874, and
16-CA-1888. March 31,,1964
DECISION AND ORDER
On October 3, 1963, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
146 NLRB No. 65.
EBNER BROS . PACKERS 547
certain affirmative action, as set forth in the attached Trial Exami-
ner's Decision. Thereafter, the General Counsel and the Respondent
filed exceptions to said Decision and supporting briefs. The Re-
spondent also filed a motion for rehearing, and u motion to reopen and
remand, and the General Counsel an answering brief and motion in
opposition.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case •to u three-member panel. [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
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 Decisions, the exceptions and briefs, the Respondent's
-motions, the General Counsel's opposing motion, and the entire record
in the case, and hereby adopts the findings, conclusions, -and recom-
mendations of,the Trial Examiner except as amplified and modified
in this Decision and Order.2
1. The Respondent contends that discriminatee Fougeron was a
-witness unworthy of belief, sand that the Trial Examiner should there-
fore have made no finding of 8(a) (3) discrimination as to him. We
,do not agree with this contention but affirm the Trial Examiner's
findings.3
Fougeron testified that he cleaned truck No. 2 on May 9, noted then
that it had been damaged, and reported the damage to Foreman
i The Respondent contends that cross -examination was unduly restricted by the Trial
Examiner and that only an order setting aside his Decision , or a hearing de novo before
a different Trial Examiner would correct the alleged prejudicial error
We have carefully analyzed the rulings to which the Respondent has specifically ex-
cepted and conclude that these rulings are within the allowable area of the Trial Ex-
aminer's discretion as to the scope of cross-examination See Arkansas Louisiana Gas
Company, 142 NLRB 1083, footnote 1; see also Ralph's Wonder, Inc ., 127 NLRB 1280,
1290, footnote 10
Concerning direct examination the Respondent also complains of not being allowed by
the Trial Examiner to show that it had discharged drivers other than discriminatees Smith
and Fougeron for being late. We note, however, that the Respondent made no offer of
proof on this point during the bearing and has not done so in its brief. In the absence
of a showing of the specific evidence it would adduce to show prejudice , we find no merit
in this contention of the Respondent.
We conclude that the Respondent has shown no bias or prejudice on the part of the
Trial Examiner nor has it shown that it was denied a full and fair hearing . Therefore,
we deny the Respondent 's motion for rehearing
2In affirming the Trial Examiner ' s finding of 8(a) (3) discrimination in the discharge
of Mills, we do not rely on footnote 1 of the Trial Examiner ' s Decision wherein the Trial
Examiner reinstated certain testimony This testimony was originally stricken by the
Trial Examiner and was not reinstated by him during the hearing . The record amply
supports the finding of discriminatory discharge of Mills without the stricken testimony
and we do not rely upon such testimony . We also correct the statement that Mills spent
GO hours driving each week. Sixty hours was his usual workweek and included, in addi-
tion to driving , time spent at customers' premises as well as the Respondent 's premises.
We note that the Trial Examiner accurately referred to the 60-hour week for drivers in
treating the cases of Smith and Fougeron. I
3 We correct a typographical error in the Trial Examiner 's Decision in the third para-
graph of part 4: "June 29" should be "June 19".
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wynn. This testimony the Respondent would use to discredit Fou-
geron as a witness. As urged in its motion to reopen the record, the
Respondent seeks to introduce documentary evidence concerning the
whereabouts of truck No. 2 on May 9. However, Respondent's Ex-
hibit No. 4, already in evidence, shows that truck No. 2 was scheduled
for a trip on May 9, and testimony of Foreman Wynn, already in
evidence, confirms that the truck made the trip as scheduled. From
this record evidence, without further documentary proof, we con-
clude that truck No. 2 was not at the plant and available for cleaning
by Fougeron on May 9. Accordingly, we deny the Respondent's mo-
tion to reopen.
This testimony by Fougeron was introduced by the General Counsel
in support of Mills' discriminatory discharge, and was intended to
show that the truck was damaged before May 13 when Mills used it
and the damage is said to have occurred. In finding the 8(a) (3)
violation as to Mills, which we affirm, the Trial Examiner did not rely
upon the Fougeron testimony. Nor do we. But, in the circum-
stances, we think that this, testimony does not warrant the assump-
tion that Fougeron was generally a witness unworthy of credit or
that his testimony concerning his own discharge should not be be-
lieved. At the hearing, Fougeron was supplied the date of May 9
by the General Counsel, who after considerable testimony concern-
ing Fougeron's own discharge on June 21, said : "Let's go back a
minute to May 9 of this year. Did you notice anything unusual
about truck No. 2?" The General Counsel may have used the date
in error and Fougeron may have compounded that error inadvertently.
On the record as u whole we see no reason to question the occurrence
of the incident but only its date.
2. The Trial Examiner made certain factual findings in connection
with his findings of 8(a) (3) discrimination as to Mills and Fou-
geron, which constitute independent violations of Section 8 (a) (1).
However, the Trial Examiner failed to enumerate these as independ-
ent 8 (a) (1) violations and to cover them in his recommendations
and notice. These instances of interference, restraint, and coercion
of employees in the exercise of rights guaranteed in Section 7 of the
Act, which we find to be violations of Section 8 (a) (1), are : (1)
John Ebner's offer of benefit to Mills by saying to him on May 18,
"Paul, just what will it take to satisfy you?"; (2) Steve Ebner's threat
to Fougeron on May 18 not to park his car with union stickers on it
across from the plant again. Concerning the latter incident, the
Trial Examiner credited Fougeron and referred to the incident as a
"criticism" by Steve Ebner showing knowledge of Fougeron's union
activity, which it was, but Fougeron's testimony also shows that
Ebner's words were that he did "not want to see it parked there again"
with the stickers on it, which was a clear threat.
EBNER BROS. PACKERS 549
ORDER
The Board adopts as its Order the Recommended Order and notice
of the Trial Examiner,4 with the following changes.
1. Renumber paragraph 1(c) as 1(d) .
2. Insert the following as 1(c) :
(c) Threatening employees with reprisals or promising them
benefits to discourage union membership and activity.
3. Add the following as the third paragraph of the notice :
NVE WILL NOT threaten employees with reprisals or promise
them benefits to discourage union membership and activity.
4 The Recommended Order Is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent , Its officers , agents , successors , and assigns , shall.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
An original and an amended charge were filed, on May 13 and 20, respectively,
by the above-named labor organization in Case No. 16-CA-1848. Upon these
charges a complaint and notice of hearing were issued by the General Counsel of
the National Labor Relations Board on June 28, 1963. Original charges in Cases
Nos. 16-CA-1874 and 1888 were filed, respectively , on June 17 and July 1, 1963,
by the same labor organization . On July 18 General Counsel issued his order
consolidating the three cases, an amended complaint , and a new notice of hearing.
Thereafter the above -named Respondent filed its answer . The consolidated com- .
plaint alleges and the answer denies 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 Wichita
Falls, Texas , on August 12 and 13, 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 General Counsel and the Respondent.
After the close of the hearing a motion was received from the Respondent to
reopen the record to receive additional evidence . Opposition to such motion was
received from General Counsel . By wire of August 30 said motion was denied by
the Trial Examiner.
Upon the record thus made, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Ebner Bros . Packers is a Texas corporation , with place of business at Wichita
Falls, Texas , where it is engaged in the business of processing and distributing meat
and meat products.
During the year preceding issuance of the complaint the Respondent -purchased
and received goods and materials valued at more than $50,000 directly from sup-
pliers 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
United Packinghouse , Food and Allied Workers, AFL-CIO , is a labor organiza-
tion admitting to membership employees of the Respondent.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The chief events placed in issue by the complaint: the alleged unlawful discharge
of four employees, occurred shortly after organizational efforts were begun among
the Respondent's employees by the above-named labor organization. The Respond-
ent admits having discharged employees Mills, Smith, and Fougeron, but denies
that its motive, as alleged in the complaint, was to discourage union membership.
The Respondent in its answer merely denies having discharged employee Jones.
B. Relevant facts and conclusions
1. As to the discharge of Paul L. Mills
Mills had been employed by the Respondent more than a year, most of that
period as a truckdriver, when he was summarily discharged on May 18, 1963. He
was one of four truckdrivers then employed who signed union authorization cards
on May 4. Mills became an active leader in helping to organize the 60 or more
employees working at the packing plant. He visited employees at their homes,
solicited signatures to authorization cards, and passed out union leaflets at the
plant gates. He displayed union stickers on his own car which he drove to and
from the plant.
As a witness for the Respondent, Steve Ebner, a director of the corporation in
charge of the trucking operations who testified that he discharged Mills, admitted
that he had known the driver was active in the union organizational move and
had seen the union stickers on his car. Thus there can be no question but that
management was well aware of Mills' leadership in the campaign before his discharge.
It is undisputed that Mills was required to put in about 60 hours of driving each
week-all within a period of 4 days, at the extremely low wage of $1.20 an hour.
At least two of his weekly runs were in interstate commerce: a Tuesday run of about
17 hours and a Thursday run of about 16 hours.
There is no credible evidence of any dissatisfaction on the part of management
with Mills' performance of his duties until after it became aware of his union
activities. In fact he had received a notable increase of pay from $1.15 to $1.20
an hour.
On May 11 for the first time he was accused by Steve Ebner of "falsifying" his
•truck logs. He was reprimanded for minor derelictions such as failing on one
occasion to account on his log for the 30 minutes lunch time allowed by the Com-
pany-time which the Company deducted from the total put in by the driver.
He was criticized also for failing to note the mileage on another slip shown on
the meter when leaving the plant. Ebner told him that if he so much as got a
traffic ticket thereafter he would be fired.'
Mills, however, did not cease his union activities. On May 17, his day off, he
again passed out union leaflets at the company parking lot.
The next day Mills went to the office to turn in his C.O.D. collections for the week
and to get his paycheck. While waiting for the office worker to receive his col-
lections, Mills was asked by John Ebner, head of the company, how his wife and
baby were. Mills replied that they had no baby as yet, having been married but
4 months. Ebner then asked him, according to the employee's credible testimony:
"Paul, just what will it take to satisfy you?" Mills replied, "Not anything," at
that time. When the secretary finally took his collections Mills asked about his
own paycheck. She told him be would have to see Steve Ebner about it.
Steve Ebner asked Mills where he had been and what truck he had driven on
Monday, May 13. Mills told him where he had been and that he had driven truck
No. 2 that day. Ebner then accused him of having damaged the truck without
reporting it. Mills said that so far as he knew the only thing the matter with the
1 The findings as to the May 11 incident rest upon Mills' credible testimony, which Is
hereby reinstated. The testimony was stricken by the Trial Examiner during presentation
of General Counsel's case-in-chief, when it appeared that it related to no issue then alleged
either in the complaint or in the answer As the record shows, the Trial Examiner pointed
out at the time, in effect, that General Counsel could bring in such evidence on rebuttal,
if necessary, but that he should not attempt to anticipate a defense not affirmatively
alleged Although Mills was recalled in rebuttal General Counsel, perhaps inadvertently,
failed to ask for reinstatement of the stricken testimony, or to query him about the
May 11 event. Since Steve Ebner did testify for the Respondent concerning the same
interview, however, reinstatement of the employee's testimony appears appropriate.
EBNER BROS . PACKERS 551
truck was that its door was hard to close. Ebner then called into the office leadman
Marvin Wynn, who had charge of the loading and truck conditions. Wynn told
them that so far as he knew the truck in question was all right the Saturday before
Mills took it out on Monday. Ebner then told Mills that another driver had re-
ported damage to the truck on Tuesday, the day after Mills had used it, and that
it "looked pretty damned bad" for him. Ebner then instructed Mills to find his
ICC log sheet for May 2-more than 2 weeks earlier. Mills replied that it must
be in the office, since he attached such sheets to an office clipboard upon return
from trips. Ebner then .told him to see if he could find a copy of it in the logbooks,
there in the office. Mills searched through the several books, which had been
neatly piled in the office, but was unable to find a copy of the specific log. He
said it might possibly be at home-it being undisputed that several logbooks were
used. Ebner gave him 20 minutes to go home and find it. He could not locate
a copy, returned to the office, and was fired by Ebner. Ebner gave him his checks
up Ito date, telling him that he did not want him "on Ebner's property or anywhere
around it or down at the plant again," according to Mills' credible testimony.
While waiting for Ebner to sign his checks Mills was told that he was an "intel-
ligent person" and "that it was just circumstances." Mills replied that he thought
that in this life there was no room for "middle of the roaders," one had to be on
one side or the other and he believed he was on the *right side. As he left Ebner
followed him and repeated that it was "just circumstances," and that it wouldn't
have come "to this" if he hadn't been seen "out on the corner yesterday with
that . nigger or seen in all the stores with that damned old commie." 2
Mills understood Ebner to refer to a Negro, 'apparently a union organizer who
had distributed leaflets with him, and to the "Commie" as James Stewart, the union
representative at the hearing.
As a witness Steve Ebner claimed that he fired Mills because he "couldn't allow
him to go out on the truck any more without all of his logs in," because he believed
he had "damaged the door to the truck," and because of a discrepancy "of an hour
and nine minutes" on a truck ticket. The Trial Examiner cannot believe Ebner's
claimed reasons. They fail to withstand scrutiny. Assuming that Ebner might feel
some concern about the possibility of being "fined" by ICC, the reasonable question
arises as to why that concern waited for more than 2 weeks and until the day after
Mills passed out leaflets at the plant. There is no direct evidence that Mills in fact
failed to make out the log-only that it could not be found. It is quite conceivable
that the copy may have been lost in that long period, in the office, or purposely
removed .3
Nor is there any direct evidence that Mills in fact damaged the rear door of the
truck. It was not until the day after he admittedly had used it that Wynn's atten.
tion was called to it. This was on Tuesday. Mills, it appears, worked that day,
again on Wednesday, and again on Thursday. 'Nothing was said to him about it
until Saturday-again the day after he had distributed leaflets at the plant. Had
management actually been concerned about the damage, why the several days'
delay in questioning Mills about it? 4
The single minor discrepancy of about an hour on a truck ticket, even if not satis-
factorily explained, at the most could have cost the company approximately $1.20-
hardly an item to a concern working its truckdrivers 16 or 17 hours a day within a
4-day period.
The Trial Examiner is convinced and finds that management used these minor
items as a pretext for ridding itself of a known union leader, and that the real
reason for the discharge was the Respondent's resolution to discourage union mem-
9 The quotations are from Mills' credible testimony. Ebner's denial that he made the
last quoted remark to Mills is not credited. Company documents in evidence show that:
(1) on May 31 John Ebner issued written instructions to all drivers that they were not
to talk to any customers or employees of such customers about their attempt to organize ;
and (2) on July 4 the Company issued a notice to all employees urging them "In Freedom's
name," after quoting "We hold these truths to be self-evident, etc " to "use our God given
11wisdom by not joining up with organizations that are communistic . . . .
i Indeed, as a witness Ebner admitted that this one log might have been "lost" and
"was not found in the office."
4 The testimony of the Respondent's witnesses regarding this "damage" is far from
Impressive . It could hardly have been serious . Steve Ebner described it as a dent in
the backdoor "near one of the hinges ." He said he , himself, "opened and closed it [the
door]" on May 15, and the extent of the damage , according to him, was that it was
"difficult to close."
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
borship and activity among its employees . Such discrimination interfered with,
restrained , and coerced employees in the exercise of rights guaranteed by Section 7
of the Act.
2. The discharge of N. L. Jones
On May 20, 2 days after driver Mills was discharged as described above, the
employment of employee N. L. Jones was terminated . The complaint alleges that
Jones was unlawfully discharged . At the hearing, although not in the answer,
through its witnesses the Respondent claimed that Jones had voluntarily quit.
Jones was the only packing plant worker to be involved in these proceedings and,
so far as the record shows, the one plant employee who actively participated in the
organizing campaign by soliciting signatures to union authorization cards.
According to the employee 's credible testimony he was approached on May 8 or 9
by Frank Ebner, personnel manager and a director of the Company, and was asked
if he had heard about the union "trying to move in ." Jones admitted that he had.
Ebner then asked him if he had signed a card , sand the employee said he had. Ebner
asked him why. Jones replied that he thought it would help him. Ebner then
declared that nothing could help him but Ebner Brothers , and asked who had given
him the card to sign. Jones answered that he had rather not reveal the name.
Ebner said that he could find out anyway.5
A few days later John Ebner, previously identified as the head of the Company,
came up to Jones just after he had finished "running off" five drums of lard. Ebner
ordered him to ppen up the drums. He did so. Ebner looked at them , and ordered
him to take the lard from two of them and run it through the vat again , stating
that the lard in two drums was bad. Although it appears that the five drums came
from the same batch and, as the employee testified without dispute , "If two of
them was bad, I think all five of them should be bad ." Ebner told Jones he was
going of report the matter to Frank Ebner, above identified , and added that it ap-
peared to him as if Jones just did not "mean to do right," and that while it looked
as if he were going to have to fire him, he would prefer to have him quit.
Within a few minutes Frank Ebner came to Jones and repeated the remark about
firing him .6
As Jones was returning to his vat, which he' had been cleaning , from his early
morning "break" on May 20 he met John Ebner. Ebner took him to the vat,
picked up a handful of suds, claimed there was grease in it, and after saying, "You
just don't mean to do right , do you?" told him to come to the office and get his
check. Ebner added that he had seen him "running around with that damned
Communist and that . . . nigger." Jones went to the office, received his check,
and left . He has not been reinstated.
The foregoing findings as to his discharge rest upon Jones' credible testimony and
surrounding circumstances as to which there is no dispute.
John Ebner 's account of the final interview fails to withstand the scrutiny of
reason. According to Ebner, as he was making his "rounds " that morning he
"came by where Jones was working" and "noticed that all over the floor there was
lard and it was so thick in there that I just reached my hand down and picked up
a handful and showed it to Jones" and said, "Don 't you know that you are not
supposed to waste this product like that ?" He claimed that Jones said "yes" but
gave him no explanation "so I turned around and walked off." Ebner further
testified that as he left "that particular room " he met the leadman of the department
and asked if he had seen "all that lard on the floor." The leadman replied that
he had not. Ebner proceeded to his office and, according to him , Jones appeared
within a few minijes and told him he was going to quit. Ebner merely replied, so
he said, "Okay , Jones, it is all right with me."
No member of management testified as to any incident of unsatisfactory work
by Jones, from the time of his employment in 1962 up to the day of his leaving. It
defies reason to believe that an employer would , under the circumstances described
by Ebner himself, merely say "Okay" when an employee walks into the office during
a workday and announces he is quitting . Normal curiosity would at least have
prompted the question "Why?"
s Frank Ebner's denial of this interrogation Is not credited.
O John Ebner denied having told Jones on this or any other occasion that "it looked
like he was going to be fired." The denial Is not credited. Ebner admitted having called
his attorney to see if he could fire Jones, and further admitted that he had been planning
to discharge the employee. Moreover, John Ebner did not dispute Jones' account of the
lard incident, except as to the threat of firing. Nor does the Trial Examiner credit
Frank Ebner' s denial of threatening to fire Jones on that occasion.
EBNER BROS . PACKERS 553
Furthermore, had 'the employer actually believed Jones had quit voluntarily, the
normal response to the charge, when received from General Counsel , would have
been to make that belief known and assure the employee that his job was available.
Yet not even the answer, filed by the Respondent, makes any claim that Jones had
quit his job.
On cross-examination Ebner claimed that when Jones went "upstairs" for his
check he immediately called the company attorney and told him Jones had quit.
He said he "wanted to clear with Mr. Nelson just exactly what was going on .
He then admitted that he had previously told a Board representative (counsel for
General Counsel at the hearing) that he had called Nelson to "see if he could fire
Jones," and that he had been "planning on firing Jones." Obviously there is a
serious conflict between Ebner's statement that he called Attorney Nelson to tell
him Jones had quit and that he called him to see if he could fire him.
In short, the Trial Examiner is unable to believe John Ebner's claim that Jones
quit.?
The Trial Examiner concludes and finds that Jones was discharged to discourage
union membership and activity, and that by such unlawful discrimination, and by
Frank Ebner's interrogation above described the Respondent interfered with, re-
strained, and coerced employees in the exercise of rights guaranteed by Section 7
of the Act.
3. The discharge of Billy Ray Smith
Smith, another of the four truckdrivers who signed union cards, also put in 60
hours a week, for which he was paid $1.15 an hour. With the other drivers he
signed a union authorization card on May 4 and thereafter visited plant employees
at their homes.
On May 17 he passed out union leaflets at the parking lot gate. He had union
stickers on his own car.
On May 30 he was accused by a management official of talking about the Union
to employees of the Respondent's customers and the next day was required to sign
a statement to the effect that he would not do so again.8
Also on May 30, Smith reported for work about an hour late, having overslept,
and Steve Ebner told him he would have to discharge him. Because his services
were needed the next day, however, he was permitted to work and then was dis-
charged on June 1, 1963. He has not been reinstated.
Accepting at face value the testimony of Steve Ebner, to the effect that Smith
was told by him on May 7 that if he was as much as 15 minutes late without an
acceptable excuse he would be discharged, it is clear that no such threat had been
given to this employee until after his union activity became known to management.
(Ebner said he had warned drivers about being late in September 1962-but Smith
did not come to work for the Respondent until January 1963.) No evidence was
offered to show that Smith had a bad tardiness record.
Since Smith had not finished his previous day's run-May 29-until nearly mid-
night, oversleeping the following morning seems not to have been a grave and
momentous dereliction. Had the Respondent so considered it, it is reasonable to
believe that he would have been fired upon his reporting. To suit management's
convenience, however, he was permitted to work another day and a half. When
this fact is considered in the light of the fact that also on May 30 he was required
to sign a statement to the effect that he would not discuss unions when on his route
it becomes reasonably inferable, and is found, that the Respondent was far more
concerned with his union activity than with the minor incident of being late. The
Trial Examiner concludes and finds that Smith's late reporting on May 30 was a mere
pretext and that the real motive precipitating the discharge was to discourage union
membership and activity. Such discrimination constituted interference, restraint,
and coercion.
7 The Respondent adduced testimony from other employees to the effect that after the
event Jones had told them he had quit Jones denied having made such statements. The
Trial Examiner believes him. Even if his denials are not accepted at face value , there is
questionable weight to be attached to statements made after a discharge It clearly is
not beyond reason for an employee, summarily discharged, to hide the blow to his self-
esteem by claiming , to his fellow employees , that he was leaving voluntarily.
8 Frank Ebner admitted thus warning Smith. Ebner also admitted that the subject of
union was the only one employees were forbidden to talk about . Since General Counsel
specifically disclaimed alleging that such disparity was a violation of the Act , no finding
to that effect is made.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The discharge of LaVerne T. Fougeroni
Fougeron was another truckdriver who worked about 60 hours a week within a
4-day period. He was the third of the four drivers, who signed a union card on
May 4, to be summarily discharged. He took part openly in the organization,
distributing handbills and putting union stickers on cars.
That management well knew of his activity, and resented it, is established by the
fact that on May 18 he was criticized by Steve Ebner for having his car with union
stickers on it, across the road from the plant at a filling station .9 Ebner admitted
having seen the stickers.
Fougeron was summarily discharged on June 21 for reporting in about an hour
late the previous day, June 20 He overslept-a not unreasonable explanation in
view of the fact that on June 29 he had been on a run from 5:45 a.m. to between
10 and 11 p.m.-some 17 hours.
As in the case of Smith, the Trial Examiner is convinced and finds that Fougeron's
late reporting for work on June 20 was a mere pretext, and that he actually was
dismissed for his continued union leadership and activity. According to Steve
Ebner it was not until May 14-after Fougeron's union activity became known-
that the threat of discharge for 15 minutes' tardiness was voiced by him.
Such unlawful discrimination interfered with, restrained, and coerced employees
in the exercise of rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set .forth in section III, above, occurring in 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
It will be recommended that the Respondent offer immediate and full reinstate-
ment to their former or substantially equivalent positions, without loss of seniority
or other rights and privileges, to employees Paul L. Mills, N. L. Jones, Billy Ray
Smith, and LaVerne T. Fougeron, and make them whole for any loss of earnings
they may have suffered by reason of the unlawful discrimination by payment to
each of them of a sum of money equal to that which he normally would have
earned as wages, absent the discrimination, from the date of his discharge to the
date of offer of full reinstatement, and 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 serious and extended nature of the Respondent's unfair labor
practices it will be recommended that it cease and desist from in any manner in-
fringing upon the rights of employees guaranteed in 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. United Packinghouse, Food and Allied Workers, AFL-CIO, is ^a labor organi-
zation within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of employees,
as described herein, to discourage membership in a labor organization, the Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
9 Ebner admitted reprimanding the employee for having his car at this place-which
he further admitted was not company property and that the Respondent had no control
over It-but denied referring to the union stickers . The Trial Examiner does not credit
his denial.
EBNER BROS. PACKERS 555
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case; the Trial Examiner recommends that Ebner Bros.
Packers, its officers , agents, successors , and assigns, shall:
1. Cease,and desist from:
(a) Discouraging membership in and activity on behalf of United Packinghouse,
Food and Allied Workers, AFL-CIO , or in any other labor organization , by dis-
charging , laying off, or refusing to reinstate any of its employees because of their
union membership or activities , or in any other manner discriminating in regard
to hire or tenure of employment , or any term or condition of employment.
(b) Unlawfully interrogating employees as to their union sympathies.
(c) In any other manner interfering with , restraining , or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Offer employees Paul L . Mills, N . L. Jones, Billy Ray Smith , and LaVerne
T. Fougeron immediate and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay they may have suffered by reason of the
discrimination against them , in the manner set forth above in the section entitled
"The Remedy."
(b) Preserve and, upon request , make available to the National Labor Relations
Board or its agents all records necessary to determine the amount of backpay due
and the right of reinstatement under this Recommended Order.
(c) Post at its operations in Wichita Falls, Texas , copies of the attached notice
marked "Appendix ." 10 Copies of said notice , to be furnished by the Regional
Director for the Sixteenth Region , shall, after being signed by the Respondent's
authorized representatives , be posted by it immediately upon receipt thereof and
be maintained by it for a period of 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are customarily posted . Reasonable
steps shall be taken to insure that such notices are not altered , defaced , or covered
by any other material.
(d) Notify the said Regional Director , in writing, within 20 days from the date of
the receipt of this Trial Examiner 's Decision , what steps it has taken to comply
herewith.ii
10 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 Deci-
sion and Order."
"In the event that this Recommended Order be adopted by the Board , this provision
shall be 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 discourage membership in and activity on behalf of United
Packinghouse, Food and Allied Workers, AFL-CIO, or in any other labor
organization of our employees , by discharging, laying off, refusing to reinstate,
or in any other manner discriminating in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT interrogate employees concerning their union sympathies in
violation of Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain , or coerce em-
ployees in the exercise of rights guaranteed them by Section 7 of the Act.
WE WILL offer Paul L. Mills, N. L. Jones, Billy Ray Smith , and LaVerne T.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fougeron immediate and full reinstatement to their former or substantially
equivalent positions , and make them whole for any loss of pay they may have
suffered by reason of our discrimination against them.
EBNER BROS. PACKERS,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing 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, Sixth
Floor, Meacham Building, 110 West Fifth - Street , Fort Worth , Texas, Telephone
No. Edison 5-4211 , Extension 2131 , if they have any question concerning this notice
or compliance with its provisions.
James A. Deveney d/b/a Devco Diamond Rings , Petitioner and
International Jewelry Workers, Local No. 9, AFL-CIO.' Case
No. 17 ISM-241. March 31, 1964
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer Michael J.
Lucero. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds that no question
affecting commerce exists concerning the representation of employees
of the Employer within the meaning of Section 9(c) (1) and Section
2(6) and (7), of the Act for the following reasons:
The Employer seeks an election among employees at its Kansas City,
Missouri, jewelry repair shop. The Union contends that it would not
effectuate the policies of the Act to assert jurisdiction over the Em-
ployer's operations.
The Employer solicits jewelry repair work from retail stores, and
resets diamonds in new mountings selected from the Employer's cata-
logue by customers of these stores; some of these stores are located out-
side Missouri. The Employer generally returns the jewelry to the
stores by insured parcel post. The record shows that the. value of
jewelry returned to stores outside the State of Missouri during the year
beginning April 1, 1963, when the Employer hired the first employee,
would on a projected basis amount to over $50,000. The Employer's
receipts for sales and services during the 6-month period, April 1963
through September 1963, amounted to approximately $21,000, of which
1 The Union' s name appears as amended at the hearing.
146 NLRB No. 68.