Emmadine Farms, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1962

138 N.L.R.B. 1098 (N.L.R.B. 1962)

1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations 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 Cylinder Gas, Petroleum and
Accessory Drivers and Inside Employees, Local Union No. 283, an affiliate
of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization of our employees, by
discharging, refusing to reinstate, or in any other manner discriminating against
them in regard to their hire or tenure of employment or any term or condition
of employment.
WE WILL offer Leonard Bieganski, Leonard Calcaterra, Anthony Licausi,
Joseph Gondek, Walter Wilson, and Edna Wilson immediate and full rein-
statement to their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered by them as the result of the discrimina-
tion against them.
WE WILL NOT interrogate our employees concerning their union membership
or activities, or threaten them with reprisals for engaging in such 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
organizations, 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 other concerted activities for the purpose of col-
lective 'bargaining or other mutual aid or protection, and to refrain from any
or all such activities.
All our employees are free to become or remain, and to refrain from becoming
or remaining, members of the above-named or any other labor organization.
HERMAN BROTHERS PET SUPPLY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
-------------------------------------------
(FRANCIS HERMAN)
-------------------------------------------
(LEON HERMAN)
-------------------------------------------
(JuLIUS J. HERMAN)
This notico must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Industrial
Building, 232 W. Grand River, Detroit 26, Michigan, Telephone Number, Woodward
2-3830, if they have any question concerning this notice or compliance with its
provisions.
Emmadine Farms, Inc. and Ernest G. Ostling
Milkdrivers and Dairy Employees Union, Local 338, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America and Ernest G. Ostling. Cases
Nos. 2-CA-8099 and 2-CB-3282. September 27, 1962
DECISION AND ORDER
On April 11, 1962, Trial Examiner Fannie M. Boyls issued her
Intermediate Report in the above-entitled proceeding, finding that the
138 NLRB No. 127.
EMMADINE FARMS, INC. 1099
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the General Counsel and the Re-
spondents filed exceptions to the Intermediate Report, and the Gen-
eral Counsel and Respondent Company filed supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members 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 Inter-
mediate Report and the entire record in the case, including the excep-
tions and briefs, and hereby adopts the findings,' conclusions,2 and
recommendations of the Trial Examiner, with the additions and mod-
ifications noted below.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner except that (1) paragraph numbered 1 (b) of the
Order recommended against the Respondent Union is hereby deleted,
and paragraph numbered 1 (c) of such order is consequently re-
numbered 1(b) ; (2) the corresponding paragraph in Appendix B
beginning with the words "WE WILL NOT deny" is hereby deleted;
and (3) the backpay obligations of the Respondents shall include the
payment of interest at the rate of 6 percent to be computed in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716'
I We note, in addition to the commerce data reported in the Intermediate Report, that
Respondent Company's answer admits that Respondent Company is engaged in both the
wholesale and retail distribution and sale of dairy products , and that it received more
than $500 ,000 from its retail sales for the year preceding the issuance of the complaint.
z We agree with the Trial Examiner 's finding that Respondent Union caused the Re-
spondent Company to discharge Ostling. The reason for this action taken by Respondent
Union against Ostling was , we find, that employee's opposition to the policies and leader-
ship of Respondent Union. Like the Trial Examiner , therefore , we find that Respondent
Company has violated Section 8 (a) (3) and ( 1) of the Act and the Respondent Union
violated Section 8(b) (2) and ( 1) (A). While the Trial Examiner found that Respondent
Union's failure and refusal to process Ostling's grievance respecting his discharge was
independently violative of Section 8(b(1) (A ) of the Act , we find it unnecessary to reach
the legal question presented by that finding, for we view Respondent Union's treatment
of Ostling subsequent to the discharge as additional evidence of the role played by it in
the discharge , for which discharges Respondent Union is herein found to have violated
Section 8(b) (2) and ( 1) (A) and for which an appropriate remedy is provided.
8 For the reasons set forth in the dissent in the Isis Plumbing case, Member Leedom
would not grant interest on backpay.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by Ernest G. (Bob) Ostling on August 14, 1961 , against
Respondent Emmadine Farms, Inc., herein called Enunadine , and on November
14, 1961 , against Milkdrivers and Dairy Employees Union , Local 338, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America,
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called Local 338 or the Union, the General Counsel of the National Labor
Relations Board , acting through its Regional Director for the Second Region, on
December 11, 1961, issued a consolidated complaint against Emmadine and Local
338. The complaint alleged that Respondent Local 338, by causing Respondent
Emmadine to discharge Ernest G. Ostling for reasons other than nonpayment of
dues and initiation fees, and by thereafter failing and refusing to process a grievance
in his behalf, violated Section 8(b)(2) and ( 1) (A) of the National Labor Relations
Act, as amended ( 61 Stat. 136 , 73 Stat. 519 ), and that Respondent Emmadine, by
complying with Local 338's request that it discharge Ostling, violated Section 8(a)(3)
and (1 ) of the Act. Each Respondent filed an answer , denying that it had engaged
in the unfair labor practices alleged.
Pursuant to notice , a hearing , at which all parties were represented , was held
before Trial Examiner Fannie M. Boyls at intermittent dates between January 24
and February 14, 1962. All parties were afforded an opportunity to argue orally
before me and to file briefs Counsel for the General Counsel and for the Charg-
ing Party argued orally at the conclusion of the hearing but filed no briefs. Counsel
for Respondent Emmadine and for Respondent Local 338, on the other hand,
waived oral argument and filed briefs . I have duly considered the arguments and
briefs
Upon the entire record, and , from my observations of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT EMMADINE
The complaint alleges, Emmadine concedes , Local 338 does not dispute, and I
find, that Emmadine is a New York corporation engaged in the sale and distribution
of milk and milk products ; that it maintains its principal office and place of business
at 2338 Hermany Avenue, in the Borough of the Bronx, city and State of New York,
and also maintains a plant at Millwood , New York, among other places ; that dur-
ing the year preceding the issuance of the complaint , which is a representative year,
Emmadine purchased indirectly , from outside the State of New York , milk, bottles,
and other goods and materials valued in excess of $50 ,000 which were transported
and delivered from out-of-State sources to Emmadme's Bronx and Millwood plants;
and that during the same year Emmadine, in the course and conduct of its business
operations , received in excess of $50,000 from the retail sale and distribution of
milk and milk products.
Emmadine admits, Local 338 does not dispute , and I find, that Emmadine is
engaged in commerce within the meaning of the Act . I further find that it will
effectuate the policies of the Act to assert jurisdiction herein
II. THE LABOR ORGANIZATION INVOLVED
Respondent Milkdrivers and Dairy Employees Union , Local 338, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
is a labor organization within the meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
It is undisputed that when Emmadine Branch Manager Fred Jobin discharged
Ernest G. (Bob) Ostling in June 1961 , allegedly for leaving on his milk route
about 10 minutes early , he led Ostling to believe that the discharge was at Union
Steward Mauro's request and that Local 338's president , Conrad, and its secretary-
treasurer , Manchester , had approved the discharge . Emmadine contends , however,
that its branch manager lied to Ostling in attributing responsibility for the discharge
to Local 338 and the local contends that it had nothing to do with Ostling's dis-
charge. The local's explanation for its failure to process a grievance in Ostling's
behalf is that it felt that he was not in good faith seeking reinstatement , and believed,
in any event . that it could not be successful in securing his reinstatement.
Sharp issues of credibility are involved in determining whether , as the General
Counsel alleges, Ostling's discharge was the result of a conspiracy between Emmadine
and Local 338 to rid the plant of an employee who had become obnoxious to the
Local as a result of his persistent opposition to the Union's leadership and policies
or whether , as Emmadine and the local contend , the discharge was solely at the
insistence of Emmadine and for reasons unrelated to Ostling 's union or other pro-
tected concerted activities.
EMMADINE FARMS, INC. 1101
B. Ostling's relations with Local 338
1. Early background
John A. Manchester has been Local 338's secretary-treasurer for about 22 years.
Although the jurisdiction of Local 338 covers more than the various Emmadine
Farm plants, Manchester was largely responsible for organizing the employees of
Emmadine, regards it as his "pet," and claims to make all decisions affecting
Emmadine. He first met Ostling at the conclusion of World War II when intro-
duced by John Gorlitz, an uncle of Ostling's wife and a close personal friend of
Manchester's. At Gorlitz's request, he obtained a job for Ostling at Dellwood
Dairies. At that time Manchester had considered Ostling "one of our boys."
After Ostling had worked for Dellwood about 2 years, Manchester advised him to
leave because, according to Manchester, Ostling "didn't get along with the shop
steward there" and management "was always complaining about him." With
Ostling's consent, Manchester then arranged with the "top management" of
Emmadine Farms to employ Ostling as a utility man, with the understanding that
he was to become a routeman as soon as the first vacancy arose. Ostling worked
for Emmadine from April 1947 until his discharge in June 1961, first as a utility
man, then as a routeman, and finally as a route rider.
The first controversy between Ostling and Manchester disclosed by the record
arose in 1949 in connection with the selection of a shop steward for the Emmadine
White Plains plant where Ostling was then working. Although the executive board
of the local is authorized under its constitution and bylaws to decide whether a shop
steward is to be elected by the members or appointed by the executive board, Man-
chester, in practice, decides this matter and appoints a shop steward if he wishes to
do so. In 1949 an election was permitted but Manchester, backing one of the
candidates, Tucker, and urging that a "solid front" be presented to management,
persuaded Ostling, among other nominees, to withdraw his candidacy under circum-
stances which led Ostling to believe that the election was a sham. Despite heated
arguments between Ostling and Manchester in that connection, however, their
generally amicable relationship does not appear to have been seriously impaired
because of the incident. Ostling thereafter, in 1951 or 1952, sought and obtained
Manchester's assistance in processing a grievance which resulted in Ostling's obtain-
ing the position of route rider, which he held thereafter until the date of his
discharge.'
2. Ostling's relations with Local 338 during and after November 1959
The record shows that beginning in about November 1959, Ostling in a number of
instances, which will be described below, openly criticized Manchester or Union Shop
Steward Vincent Mauro and opposed certain union policies and union action or
inaction Manchester had appointed Mauro as shop steward in December 1959,
following a meeting with 10 or 12 of the union members whose advice he valued.
In November 1959 the Emmadine plant at which Ostling worked was located in
White Plains, New York. About that time, however, the ownership of Emmadine
changed and the new owners decided to discontinue the operations at White Plains,
transfer some of the routes and employees to a plant which they already owned on
Hermany Avenue in the Bronx, and transfer the remainder to a newly established
depot at Millwood, New York, News of the proposed splitup and transfer caused
considerable dissatisfaction and alarm among some of the employees, including
Ostling, because of a fear that they might lose their seniority, because the new loca-
tions proposed would involve greater traveling distances to and from the homes of
some of the employees, and because of an anticipated loss of pleasant working
conditions which they had enjoyed at White Plains.2
On November 30, 1959, Ostling sent a letter to Fred Conrad, president of Local
338, referring to the Emmadine changes as a "reorganization," stating that an elected
union official had reported to some of the employees that no discussion between the
Union and Emmadine about the reorganization had taken place, challenging this
action as well as the action of Union Shop Steward Tucker in assisting Emmadine
'The findings in the above subsection are based upon the mutually corroborative testi-
mony of Ostling and Manchester
2 Manchester himself testified that the employees had reason to be dissatisfied with the
proposed changes and stated that, in his opinion, the Hermany Avenue plant in the
Bronx was "not fit for pigs"
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in making up transfer lists as violations of the collective-bargaining contract, assert-
ing that the union official had informed employees that they would lose their com-
pany seniority rights and would probably also suffer other detriments, asking what
recourse the employees had, and requesting a satisfactory reply in writing. No
reply to this letter was ever received.
According to the credited testimony of employee William Connover, Manchester
read this letter to a small group of employees at a meeting at which Vincent Mauro
was selected as a shop steward and told the employees that "he was disgusted with
a letter like that coming into the office." Manchester at first testified that he saw
this letter, then later that he was not sure he had seen it but that it was not the type
of letter he would answer "because it's a bunch of gibberish, it makes no sense what-
ever," is "self-serving" and "has no foundation at all." He added, "It would be
ridiculous for a union official in my capacity to answer a thing like that." 3
In August 1960, Ostling received a letter, signed by "F. A. Conrad, President,"
inviting him, as a member of Local 338, to attend a meeting of the Mid-Hudson
Political Association and to pay a $25 initiation fee in that organization. Ostling
did not attend the meeting or join the organization. But, as Manchester credibly
testified, only about 650 of the 2,500 or 3,000 members of Local 338 joined the
Political Association. I therefore attach no significance to the fact that Ostling
did not join
In the spring of 1961, however, Ostling openly criticized and argued with Man-
chester and engaged in other activities which came to the attention of Manchester
and which may well have given him concern.
About March 1, 1961, eight or more of the Emmadine employees met in Ostling's
home to discuss working conditions at the Bronx plant and union affairs. They
complained about safety conditions, the overloading of trucks, the delay of trucks
in getting out of the plant in the mornings, and the possibility of the employees being
able to elect their own shop steward rather than having to accept one appointed by
Manchester. According to employee McEvoy's credited testimony, Ostling "was
the head" of this meeting. Plans were made to hold another such meeting after
Ostling returned from his scheduled vacation and employee Walker made a list
of the subjects to be discussed at the next meeting. These subjects, in the order
listed were: "Shop Steward," "Unauthorized Personal [sic] in office doing jobs
other than their own," "Stop overloading because of time consumed," and "No
special union meeting unless all are invited." 4
On April 14 a union meeting was held for the purpose of nominating delegates
and alternate delegates to the International's convention to be held in Miami on
July 3. After the Local's president, Conrad, its secretary-treasurer, Manchester,
one of its business agents, William F. Kennedy, and a shop steward, Murray, from
Marydale Creameries, were nominated as delegates and Union Business Agent Luke
Kennedy and employees Clark and LaPrice were nominated as alternate delegates,
Manchester ruled that, of those nominated, only the local's officers and its business
agents were eligible to run because the monthly dues of the others had not, for the
preceding 2-year period, always been paid prior to the first of each month for
which they were payable. Ostling-who had nominated one of the employees
ruled ineligible-as well as a number of other employees present, were disturbed
about Manchester's ruling, for the dues of employed rank-and-file members had
been checked off pursuant to the current collective-bargaining agreement and the
a Before sending this letter , Ostling had prepared and started circulating a petition,
addressed to Manchester , requesting a meeting to discuss Emmadine working conditions
but Ostling did not himself sign the petition and it was never presented , as Ostling ex-
plained, because the Union 's new contract with Emmadine, codifying working conditions,
was ratified before he had an opportunity to present the petition . Although I credit
Ostling's further testimony that Manchester , when meeting with a few of the employees
at the conclusion of one of the union meetings in late November or early December, re-
marked that be knew about the petition and stated that nothing like that had ever been
done before and that he was disappointed , there is no evidence that Manchester knew,
and I do not infer that he knew, of Ostling's responsibility for initiating the petition.
Mauro, who shortly thereafter became the new shop steward at the Bronx branch of
Emmadine, was 1 of the 15 employees who signed the petition but it is undisputed that
he signed it at the request of an employee other than Ostling and he testified that he
did not know of Ostling's sponsorship of it.
'The findings in the above paragraph are based upon the undenied and credited testi-
mony of Ostling and McEvoy.
EMMADINE FARMS, INC. 1103
employees had no control over the dates upon which their employers checked off
their dues.5
Approximately a week later Ostling and about 18 or 19 other employees held an
informal meeting at the home of Emmadine employee Crompton. In addition
to Emmadine employees, several Local 338 members from other dairies, including
Edwin Harris, a good friend of Union Steward Murray from Marydale Creameries,
were present. According to the credited testimony of employee McEvoy, Ostling
"ran that meeting" as he had the meeting at his own home during the preceding
month. Ostling protested that it was not right to disqualify men as delegates to
the Miami convention on the ground that they were not members in good standing
when their dues had been deducted pursuant to their union contract and contended
that Manchester's ruling in this regard was inconsistent with the ruling of a Federal
judge on eligibility of candidates. Other employees agreed with Ostling and ex-
pressed their desire for a rank-and-file member to represent them in Miami. Ostling
also advocated the selection of union shop stewards by secret ballot elections and
expressed dissatisfaction with Mauro as the shop steward at Emmadine. Some other
matters on the agenda which had been prepared at the previous informal employee
meeting and, in addition, the Mid-Hudson Political Association, were discussed.
During the meeting, employee Harris announced that his shop steward, Murray,
from Marydale Creameries, was arranging a meeting with Manchester at the latter's
office and invited all the employees present to attend.6
The meeting with Manchester, referred to by several of the witnesses as the
"gripe" meeting, was held early in May. About 20 employees, including Ostling,
attended. Among the subjects discussed were the way in which delegates to the
Miami convention had been nominated, the manner in which shop stewards were
selected, the terms of the newly negotiated collective-bargaining agreement, and
the manner in which Manchester was representing the interests of the employees.
At this meeting, Ostling and three other employees had heated discussions or
arguments with Manchester. According to Ostling's credited testimony, he got
into an argument with Manchester about the manner in which nominations to the
Miami convention were handled and told Manchester he did not "believe the way
the delegates were nominated was on the level"; Manchester thereupon challenged
Ostling "for saying that he wasn't on the level"; Ostling lost his temper and told
Manchester "he could think what he wanted"; and Manchester replied, "Oh, you
are on the level?" 7 Robert Pearson, another Emmadine employee, credibly testi-
fied that during the meeting Ostling and Manchester had "quite a discussion there
at points"; that Ostling was accusing Manchester "of not carrying on the work of
the local as he should," and that Manchester said that Ostling was "more or less
trying to take over the local." He further testified, and I find, that during the
meeting there was a "reference to some meetings that Bob [Ostling] had been hold-
ing in his home or someplace else" and that "Manchester said he knew about these
meetings, but that as far as he was concerned, he wouldn't hold it against him." 8
According to Pearson's further testimony, which I credit, both Osthng and Man-
chester "got a little warm under the collar" during their arguments and although
Ostling was only one of four employees who had loud exchanges with Manchester,
Ostling spoke " as long or longer than any of them."
The Marydale shop steward, Murray, and Manchester testified, and I find, that
during the gripe session and after Manchester had explained that in view of the
economic situation, the contract terms which had been negotiated were the best
that the Union could get, Ostling suggested going "back to the old days," batting
R The Union's membership record for Ostling covering the period since January 1960,
for example, shows that on no occasion were his dues checked off prior to the first day
of the month for which the dues were payable. Manchester testified that there were
only about 200 of the 2 ,500 or 3,000 members whose dues had been timely received for
the 2-year period preceding April 14, 1961.
8 The findings in the above paragraph are based upon the undenied and credited testi-
mony of Ostling , McEvoy, and Harris.
7 Manchester testified that he had "no recollection" of Ostling accusing him of not
being on the level, but did not deny that this occurred.
8 Ostling and Harris also testified that Manchester referred to these meetings but they
asserted that Manchester mentioned Harris', as well as Ostling ' s, name in this connection
and said that he would not hold it against them . I find it unnecessary to decide whether
Harris' name was also mentioned for It is clear that Manchester , In any event , referred
to Ostling.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employers over the head and making them go along with some of the union
demands and that Manchester replied that "the strong-arm days are all over" and
that he would not advocate a strike. Manchester conceded that the testimony of
other winesses as to what was said at this meeting was "pretty near right" but
denied accusing Ostling of trying to take over the local. In accepting Pearson's
testimony rather than Manchester's on this issue. I have relied heavily upon the
demeanor of the witnesses. Pearson impressed me as absolutely frank, honest, and
reliable.
I do not credit Manchester's further testimony that his personal attitude toward
Ostling has never changed, that his relations with Ostling have been friendly during
the entire time he has known him, and that Manchester could not remember any
scraps with him. I credit, instead, Ostling's testimony that he had not been on
friendly terms with Manchester or with Union Steward Mauro for sometime
prior to his discharge and had not been speaking to them if he could avoid it.
C. The discharge of Ostling
1 Ostling's encounter with Union Steward Mauro on the
morning of June 17, 1961
On the morning of Saturday, June 17, Ostling's truck was loaded and iced be-
fore 6:15 a .m., the regular starting time for Emmadine retail routemen, and he
parked it on the street outside the plant, as was his custom when the loading was
completed before starting time.9 Employee McGrael's truck was also loaded early
and he, too, parked on the street outside the plant just behind Ostling's truck.
Ostling and McGrael engaged in conversation until Ostling looked at his watch,
announced that it was 6:15 and said, "Let's go " Ostling started on his route, with
McGrael following behind Within a half block of the plant they saw another route-
man, McEvoy, approaching the plant and he greeted them. About 15 minutes
later, when Ostling and McGrael were about 6 miles from the plant, Shop Steward
Vincent Mauro, in his car, overtook them, passed McGrael and waved Ostling to
the side of the road. McGrael passed the two of them at that point io
As Mauro approached Ostling, he asked the latter how he "would like to start
in all over again." Ostling asked what Mauro was talking about Mauro said,
.You left early." Ostling denied that he had done so and asked, "How come you
are worrying about me leaving early and Mr. McGrael left exactly the same time
I did, and you let him go by and you stopped me?" Mauro told him, "Don't worry
about what anybody else does, just worry about what you do." There ensued an
argument, with Ostling addressing some vile language at Mauro and accusing him of
permitting a number of contract violations while falsely accusing Ostling of a "time
violation." As Mauro left, he announced that he was going to bring Ostling up
on charges ii
2. Ostling's telephone conversations with Branch Manager Jobin
on June 17 and 19
When Ostling returned to the plant after completing his milk deliveries, he found
a note in his locker requesting him to telephone Branch Manager Jobin . Pursuant
9 As employee Pearson testified , prior to Ostling ' s discharge , it was the practice of
employees whose trucks were loaded early to park outside the plant yard until 6:15, but
about 2 days after Ostling's discharge Union Steward Mauro Informed Pearson and
other employees who were thus waiting outside the plant to discontinue doing so and
thereafter not to report to the office before 6:15.
10 The above findings are based upon the testimony of Ostling , corroborated in material
respects by that of McGrael and McEvoy. The latter two witnesses , subpenaed by the
General Counsel , appeared very uneasy or frightened and testified very reluctantly, es-
pecially with respect to the starting time. Both had previously given statements to a
Board agent placing the time that Ostling and McGrael left as 6 :15 and also, in July
1960, at Ostling 's request , had made statements before a notary public. While not re-
pudiating the prior statements , each appeared reluctant to testify positively as to the
time For reasons hereinafter set forth , I deem it unimportant whether Ostling and
McGrael left precisely at 6:15 or a few minutes earlier.
U The above account is based upon the credited testimony of Ostling. Mauro testified
be accused Ostling of leaving early and suggested that be return to the plant and start
all over again ; that Ostling addressed vile and obscene language at him and said that
neither Mauro , Manchester , nor Jobin could make him go back and start over ; and that
Mauro then threatened to bring Ostling up on charges.
EMMADINE FARMS, INC. 1105
to these instructions he did call Jobin at the latter's residence. Ostling's account of
the conversation is substantially as follows: Jobin asked him "what happened down
there" that morning and explained that Mauro had reported that Ostling had left
early and had demanded that Ostling be fired. Ostling denied that he had left
early, asked what authority Mauro had to tell Jobin to fire him, and also asked
whether Jobin had gotten in touch with Union Secretary-Treasurer Manchester or
Union President Conrad. Jobin replied that he had not personally contacted any
union official from the office but that Mauro had assured him that Manchester had
approved the discharge Jobin promised, however, that he would get in touch with
the Union on the following Monday, June 19, and call Ostling on Monday night
to let him "know what the score was." During the conversation, Ostling asked
Jobin whether he had done anything to offend the Company and mentioned that
Mauro had accused him of loading the trucks. Jobin replied, "What has that got
to do with the union?" and assured Ostling that he had done nothing to offend the
Company.
On Monday night, June 19, Jobin telephoned Ostling as he had promised to do.
Ostling's wife answered, called her husband to the telephone, and listened to the
ensuing conversation over an extension telephone in their home because, as she
explained, she was anxious to learn the final decision as to whether her husband
had lost his job. Ostling's account of the telephone conversation, corroborated by
the testimony of his wife, is substantially as follows: Jobin reported "that he could
not contact Mr. Manchester, but he did contact Mr. Conrad, and Mr. Conrad had
okayed the firing." 12 Ostling then protested that the treatment being accorded him
was "wrong," that he did not understand what authority the Union had to direct
Jobin to fire him, again protested that he had not left on his route before 6:15, and
told Jobin that another employee had left at the same time Ostling did. Jobin
replied, "Well, it doesn't make any difference about the time. They are out to get
you." Ostling asked if Jobin was referring to the Union and Jobin replied in the
affirmative. Ostling then told Jobin that he "was going to fight this all the way"
and that Jobin "was going to wind up in the middle." Ostling also told Jobin during
this conversation of uncomplimentary rumors he had heard about Jobin at the time
Jobin was employed by Emmadine and that Ostling had refused to "buy" the rumors
and had accepted Jobin on the basis of his performance at Emmadine.
Jobin's account of his two telephone conversations with Ostling was very confused.
On direct examination by his own counsel, he testified that when Ostling called him
on June 17, he asked Ostling, "What did you do this morning9"; that Ostling replied,
"What do you mean what did I do this morning?"; that Jobin then asked, "Did you
go out early9"; that Ostling stated, "No, Fred, I didn't go out early"; and that Jobin
told him, "Look, Bob, as far as I am concerned, you are all through as of right
now." When asked by his counsel whether he told Ostling, "Mr. Mauro told me-
I got a call from Mr. Mauro to fire you," Jobin answered, "I could have said almost
anything" and when pressed, testified, "I could have." He explained that after he
told Ostling he was through, Ostling said "I know the union is out to get me" and
added, "I'll get your job and I'll get everybody else's job up there." 13 Tobin testi-
fied that he replied, "'So what9 They are out to get you. You are all through.
I checked with Jimmy Mauro,' or I might have said, `with Manchester.' And I said,
`That's it'" Jobin explained, however, that he had not in fact checked with Jimmy
Mauro and that he told Ostling this lie only "to get him off my back." He further
testified that Ostling told him he had been a "nice guy" when he came to Emmadine,
although everybody had said he was no good, adding, "I always treated you right,
Fred. I don't know why you are acting like this," and that Jobin told him, "Look,
I'll check on this, and I'll let you know Monday night "
Jobin further testified on direct that he called Ostling back on Monday night,
June 19, and told him, "Bob, that still holds"; that Ostling asked why, and he
explained, "I checked with Conrad, and it holds That's all there is to it. I'm sorry,
and good-bye." On cross-examination, Jobin testified that after he told Ostling,
"What I told you the other day holds," Ostling replied, "You shouldn't do this,
Fred, because you are going to be right in the middle. I'm going to get the union,
I'm going to get your job, too " According to Jobin, he retorted, " `Bob, I checked
with Manchester, I checked with Conrad, and they said it's all right, and that's
it . .' I could have said `Mr. Manchester,' I could have said 'Mr. Conrad' I
don't know. I probably said `Conrad."' Jobin testified further, however, that he
12 Manchester testified that he was out of town from June 10 to about June 20
"'On cross-examination, Jobin testified that he could not remember whether it was
during the first or second telephone conversation that Ostling "threatened " him and
that it "could have been" during both conversations
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not in fact call or otherwise communicate with Manchester or Conrad and that
he had no intention of doing so when he told Ostling he would.14
Both because of his demeanor while on the witness stand and because of the
vague and unreliable nature of his testimony in regard to the telephone conversations
as well as in other respects, I find Jobin unworthy of belief where his testimony is
inconsistent with that of other witnesses whom I regard as credible. Ostling, on
the other hand, both from his demeanor on the stand and because of the consistency
of his testimony under long and arduous cross-examination, impressed me as a
generally trustworthy and truthful witness. Nor is there any question in my mind
as to the thoroughly honest and truthful character of Mrs. Ostling, who corroborated
her husband's testimony with respect to the June 19 conversation. I credit their
testimony as to the telephone conversations with Jobin.
3. Jobin's alleged reasons for discharging Ostling
Jobin testified that he had observed violations of the 6:15 a.m. starting rule on
a few occasions, that he had warned all the drivers repeatedly not to violate the rule,
that shortly before June 17 he had heard rumors that the men were "starting to go
out early again"-but could not name any person from whom he heard such rumor-
and it "could have been" as a result of these rumors that he decided to check the
leaving time of the trucks on Saturday, June 17, his day off from work. According
to his testimony, he arrived at the overpass, where he normally waited when check-
ing trucks, at about 5:45 a.m., and concealed himself under the overpass for the
purpose of observing, and that "about 6:05" by his watch saw Ostling drive up the
ramp in his truck. He testified that he did not see McGrael, who was following
just behind Ostling's truck. Jobin then drove home, passing the plant on the way,
and saw, but did not speak to, Union Steward Mauro as the latter was emerging
from the plant yard. When Jobin arrived home, he telephoned his office assistant
at the plant to have Ostling call him when the latter returned from his route.
On direct examination, Jobin was not asked and did not state, unless by impli-
cation, why he discharged Ostling. He did testify, however, that in addition to the
June 17 occasion, he had apprehended Ostling leaving early in about February
1961.15 On cross-examination by union counsel, Jobin testified that he discharged
Ostling for an "accumulation" of reasons in addition to the leaving time reason.
He described the nature of this accumulation as follows: "I will describe it as he
described it. He was a guardhouse lawyer.16 . Any time anything came up
pertaining to the way that I operated the business, if I wanted to change somebody's
days off or something like that, I could never do anything, and he would advise my
personnel as to what they could do and what they couldn't do. And consequently,
he had them all in a turmoil." On cross-examination by counsel for the General
Counsel, however, Jobin, while reiterating his irritation over the fact that "every
time anything came up . some of the employees would go to Bob," insisted
that he did not fire him for that reason, but instead, for the starting time reason.
On redirect examination by his own counsel, however, Jobin asserted that on the
morning of June 17, he left the underpass as soon as he saw Ostling, without waiting
to see if any one else was leaving early, because "'I had what I wanted," explaining
that he had previously decided to fire the first person, if any, he caught leaving early
on June 17 in order to make an example of him and convince other employees that
they should take the 6:15 rule seriously.
But, again inconsistently, Jobin, in response to a leading question on recross, by
union counsel, stated that one of the reasons for discharging Ostling was that he
was the only one of Emmadine's employees who had violated the leaving rule twice.
Strangely, however, in the very next breath, he again asserted that the only reason
for checking the leaving time on June 17 was to make an example of any employee
14 Conrad testified that "during June 1961" he did not at any time discuss or com-
municate with either Marrow, Emmadine's president, or Jobin regarding the discharge or
proposed discharge of Ostling.
15 On that occasion, Ostling had stopped at a luncheonette and, upon emerging, saw
Jobin in his truck, checking his load. Although Ostling testified that he believed he had
left the plant about 6.15 that morning, I am convinced from the testimony of Elmes, a
representative of one of the other dairies engaged in checking trucks on that morning, as
well as from the fact that Ostling had passed the usual checking point before Tobin
arrived, that Ostling probably did leave early that day
10 Ostling had previously testified that he believed some of the employees considered
him as a "guardhouse lawyer ," a term used in the Army to describe people who "assume"
they know something and make protests and advise other people.
EMMADINE FARMS, INC. 1107
who might be caught, this negating his testimony that a second offense had any-
thing to do with the discharge.
Although Jobin testified that he considered adherence to the 6:15 a.m. starting
time rule important, he did not state why. The principal reason for a definite
starting time for all retail milk routemen in the industry, as explained by Ostling
and Manchester, was to eliminate an unfair competitive advantage by some dairies
over others, it being recognized that those dairies which regularly delivered early
and reached customers before breakfast were likely to obtain more business than
those who delivered later. The local and employers had sought to eliminate this
competitive advantage in their contract by providing for the same starting time for
all retail deliveries within specific areas. However the contract provisions were not
strictly adhered to, for other dairies using the same Bronx terminal as that used
by Emmadine, and which had the same owners, had different regular starting times.
At least one, Greenwood, for example, which delivered in the same general area
as Emmadine, had a 5:30 a.m. starting time.
Also in justification of a rule to insure that employees would not leave too early
was the fact, pointed out by Manchester, that if milk was delivered to the customer
substantially earlier than the regular time, it might freeze in the wintertime or turn
sour sooner in the summertime. But a 10-minute deviation from the regular start-
ing time such as that charged to Ostling on June 17 could hardly be considered
objectionable on that score-particularly since, as Manchester explained, all drivers
were not expected to leave promptly at 6:15 anyway and there is sometimes more
than a 2-hour leeway in their leaving time due to crowded working conditions,
breakdowns, and other factors at the Bronx terminal over which the routemen had
no control.
Another possible reason for Jobin's desire to enforce the rule was that he occa-
sionally, either alone or in the company of management representatives of other
dairies using the Bronx facilities, checked the truckloads to make sure that they
were carrying the proper amounts of products and that no dishonest practices by
the drivers were being pursued. He had made such checks, however, on only four
or five occasions in the approximately 2-year period before the hearing and when
checking with other management representatives, had arrived at the checking point-
about a block or a block and a half from the plant-sometimes as early as 4:40 a.m.
Accordingly, even if, as Jobin testified, Ostling arrived at the checking point on June
17 about 6:05 a.m., this would hardly have loomed as so serious an offense as to
warrant summary dismissal.
Another conceivable reason for strict enforcement of the 6:15 rule-suggested by
Emmadine counsel at the hearing-could be a desire by President Harry Marrow,
who owned an interest in all the dairies using the Bronx facilities, to prevent the
trucks of the various dairies from getting in each other's way. But Jobin expressly
renounced this as a reason for enforcement of the rule. Indeed, in view of his
failure to furnish staggered time schedules for reporting, leaving, and returning by
his approximately 24 drivers, as permitted by the industrywide bargaining contract
and as had been done by most other dairies, Jobin could not prevent even Em-
madine trucks from getting in each other's way.
In short, the record discloses no reason why Jobin could have considered it a
serious offense for a driver to leave only a few minutes early. I note, moreover,
that Emmadine provided no clock, whistle, or other means of alerting its drivers
to the starting time. Employees had to be guided by their own watches, which
may or may not have been accurate.
Jobin conceded that although he knew that other employees at times left early,
he had never before discharged any employee for this offense; nor had he ever
indicated to them what penalty, if any, would attach for a violation of the leaving
time rule. One employee, Czarneski, was given a week's notice of discharge be-
cause, as Jobin explained, there were "about a thousand" complaints against him
and "besides" Jobin had been unable to check his load one morning by reason of
the fact that Czarneski had left too early; but this discharge notice was canceled after
the Union intervened in Czarneski's behalf, and he lost no time from his work.
Another employee, McGrael, who left on June 17 at the same time Ostling did, had
on a previous occasion left before 6 o'clock one Sunday morning in order to attend
a 6 o'clock mass, but he was merely warned not to do it again. McGrael was not
even reprimanded for allegedly leaving early on June 17.
The collective-bargaining agreement provided that "persistent unexcused lateness
for work" by an employee whose reporting time is scheduled "shall be good cause
for discharge," and Jobin, although lacking a schedule, had reprimanded an em-
ployee, Walker, for reporting to work after 6:15 a.m., telling him to "get on the
662353-63-vol. 138-71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ball or else"; but the agreement was silent as to any penalty for an employee leaving
early. The agreement, moreover, provided that "the Employer may discharge or
dismiss any employee for good cause upon one week's notice or one week's pay
in lieu of notice, except that the Employer shall have the right of summary dismissal
or discharge upon any one of the following grounds," enumerating eight grounds,
none of which encompassed breaches of a leaving time rule. Thus, since Ostling
was summarily discharged, without being given a week's notice or a week's pay in
lieu thereof, his discharge would appear to be a clear breach of the collective-
bargaining agreement.
Ostling had worked for Emmadine for about 14 years prior to his discharge. His
job as a route rider-which, because of his experience and seniority, he had obtained
by bidding for it-required him to take the routes of other drivers on their days off
By reason of his experience he was accordingly a valuable employee. Jobin con-
ceded that Ostling "did his work very well," and when asked by his own counsel
whether Osthng was the type of person Jobin would like to have in his employ,
replied: "Bob was all right in ways. I have no complaints."
It is inconceivable to me that Jobin, in violation of the collective-bargaining
agreement and in contrast to his treatment of other leaving time offenders, would
have summarily discharged an employee with 14 years' service who did his work
very well, and against whom Jobin had no complaints, merely because the em-
ployee left on his route a few minutes early- assuming that Ostling did leave early.i7
In view of all the circumstances related above, and particularly in view of Jobin's
demeanor while on the witness stand and his vague and inconsistent testimony, I am
convinced beyond the shadow of a doubt that Ostling's leaving time on June 17
or on any other date was not a motivating reason for his discharge.
D. Evidence relating to the Union's alleged responsibility for Ostling's
discharge and his failure to obtain reinstatement
1. Shop Steward Mauro's account of the events of June 17 and 19
Union Steward Mauro worked as a routeman, as did Ostling, but Saturday, June
17, was his day off from work. He testified that although he had never before
reported to the plant on one of his days off, he decided on the spur of the moment
on the night before to appear at the plant early on the morning of June 17 to check
on the leaving time of the routemen because word had been circulated that the men
were abusing the starting time rule. On cross-examination , he added another
reason, namely, that Jobin had told him he would dismiss anyone who left before
the starting time.'8
Mauro testified that he accordingly reported to the plant about 5 a.m and stood
in a trailer at the loading platform to observe and make a note of the loading and
starting time of Emmadine men; that about 5:20 or 5:25, Ostling pulled up to the
platform and started assisting the men in unloading and loading his truck; that
although Ostling was only about 10 feet away at that point, Mauro did not speak
to him, that Ostling thereafter iced his truck and drove out of the plant yard at
"approximately" 6 or 6:05; that Mauro waited "about" 10 minutes longer, then left
the yard himself; 19 that as he left the yard he saw Jobin drive by the plant headed
in the direction of his home; that Mauro then walked to his car, which was parked
about 2 blocks away, and drove off in pursuit of Ostling, with the intention of per-
suading Ostling to return to the plant so that Mauro would be in a better position
to defend him if Jobin should attempt to take disciplinary action against him; and
that the unpleasant encounter with Ostling, which has already been described,
ensued.
Mauro testified further that he did not see any other Emmadine truck as he
overtook Ostling; that although he had threatened to bring Ostling up on charges,
he did not in fact do so; that on Monday, June 19, Jobin summoned him to the office
and informed him that he, Jobin, had discharged Ostling on the preceding Saturday
"for early starting time"; and that Jobin rejected a suggestion by Mauro that Ostling
be given another chance.
17 I am convinced, and find, that it was 6:15 a in by Ostling's watch when he left and
that he believed he was leaving at that time it is possible, of course, that his watch
could have been a few minutes fast without his being aware of it.
18I note that the latter reason is inconsistent with Jobin's testimony that lie had never
told any employee what penalty, if any, would be assessed for a violation of the leaving
time rule.
'° Mauro later changed his testimony in this regard and said that he left the yard at
about 6:03 or 6:05.
EMMADINE FARMS, INC. 1109
2. Ostling's unsuccessful efforts to have Local 338 process a grievance in his behalf
and to obtain reinstatement
On June 20, Ostling hired an attorney to assist him in presenting a grievance
to Local 338 and obtaining reinstatement. On that same day, Ostling sent Jobin a
leter prepared by his attorney, in which, inter alia, be referred to the telephone
conversation the night before and Jobin's attribution of responsibility for the dis-
charge to Mauro, Manchester, and Conrad, asserted that the discharge was an
unfair labor practice, and demanded reinstatement and a chance to be heard.
Jobin received this letter but did not reply to it.
Also on June 20, Ostling sent a letter to the Union's president, Conrad, and Shop
Steward Mauro, which had been prepared by his attorney, stating, inter alia:
On Monday, June 19, 1961, I was advised by telephone, by Mr. Jobin .
that I was not to report for work. He stated that he was directed to take this
action at the request of . . . Mauro He stated that Mr. Mauro had stated
that I was to be fired because I left my place of employment before 6 15 a.m.
on Saturday, June 17, 1961.
I feel that such action by this Union without affording me an opportunity
to be heard violates my rights as a member of the Union. . . . I believe that I
am entitled to be heard relative to this grievance, and I am accordingly request-
ing that you answer within three days in accordance with the provisions of
the collective bargaining agreement . . . , advising me as to the nature of such
grievance and the reason for the same.
I categorically deny that I left with the truck on the morning of June 17,
1961 before 6:15 a in. On that date and time, in the presence of witnesses,
I examined my watch and left in company with at least one other truck driver.
I feel that this discharge is without merit, that this action by the union is
failing me in my rights as such member, and I request that immediate action
be taken in order to protect me in my job.
Mauro and Conrad received the letters addressed to them. Mauro did not reply.
Conrad referred his letter to Manchester for appropriate action and asked to be kept
up to date on what happened. According to Manchester, he told Conrad, "Well,
I said, certainly, I will keep him up to date. Because, as I recall the letter, he
accused both he and I of promoting his discharge. Of course, this was so ridiculous,
it was kind of disgusting to see it in writing." (I note that Ostling's June 20
letter did not in fact refer to either Manchester or Conrad as having anything to do
with the discharge.) In any event, Manchester, on June 23, wrote Ostling:
President Conrad has referred your letter to me.
You know the procedure to follow. Check it under the grievance clause in
your contract.
Put your complaint in writing and give it to the steward. As soon as this is
done and after I get the employer's reply, I will contact you.
Ostling, by letter dated June 26, replied that he had followed the contract proce-
dure in sending his written complaint both to the steward and to Conrad on June 20
and requested an immediate hearing on his grievance Manchester concededly did
not reply to this letter because, as he explained, "I wasn't in trouble." Thereafter
Ostling, on July 14, wrote the president of Joint Council No 16 and sought its
assistance in protecting his rights as a member of the local The president of the
Joint Council replied, on July 19, that Ostling's grievance or complaint would have
to be handled at the local's level.
Ostling thereupon again wrote to Conrad, on July 21, bringing him up to date
on all the steps Ostling had taken to obtain a hearing on his grievance and referring
also to the fact, not theretofore mentioned in his correspondence with the Union,
that Jobin had informed him that Conrad had directed his summary dismissal, and
requesting that Conrad expedite action on Ostling's grievance. Receiving no reply
to this letter, Ostling on July 26 wrote to the president of the general executive
board of the Teamsters, outling in detail the circumstances under which he had been
fired and his inability to get relief from the local officials or from the Joint Council,
and requesting the president to expedite action or give him appropriate advice.
On October 27, Ostling's counsel wrote a letter to the local, attention of Man-
chester, with copies to James Hoffa and Emmadine Farms, calling attention to
Ostling's repeated attempts to have his grievance handled, demanding that the local
represent "his rights under the collective bargaining agreement by arbitration or
otherwise" and ending, "In the event that your Union, Local 338 fails to represent
Mr. Ostling in this matter against Emmadine Farms, Inc, then I have been retained
to institute an immediate action against both Local 338 and Emmadine Farms,
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc." Manchester testified that he did not reply to this letter because he considered
it a threatening letter.
On September 1, 1961, James R. Hoffa, president of the International's general
executive board , wrote Ostling, with copies of his letter being sent to Manchester
and Ostling 's attorney , acknowledging receipt of Ostling's July 26 letter , informing
him that the International did not have jurisdiction over the matter, suggesting that
the grievance be processed in accordance with the terms of the applicable collective-
bargaining agreement and that Ostling or his attorney contact Manchester in regard
to the grievance.
I have examined the applicable collective -bargaining agreement and am satisfied
that Ostling's actions on and after June 20 were in compliance with the grievance
procedure prescribed in the contract. Indeed, the local has not suggested wherein
Ostling failed to follow that procedure.
On June 28, Manchester wrote to Emmadine, attention of Harry Marrow, its
president , 20 as follows:
I submit a copy of a complaint from E. Osterline [sic], and ask for some
answers to the following questions:
(1) Did the steward give you any orders about firing this man?
(2) What was he fired for?
Jobin testified that Marrow referred this letter to him for reply, but that no copy
of a complaint was attached, and that on June 30, he drafted and sent the following
reply under Marrow's signature.
In reply to your letter of June 28 in reference to a complaint from E. Oster-
line [sic] we wish to advise you as follows:
(1) The steward did not give me any orders about firing this man.
(2) He was fired for violation of company rules.
Manchester testified that other than the above-mentioned correspondence, he had
no communication of any kind with Emmadine about Ostling's case. He testified,
however, that he did write Union Steward Mauro on June 28 for an explanation
in writing of Ostling's complaint; that he received a short letter in reply-which
Manchester had misplaced and could not produce at the hearing-in which Mauro
denied that he requested Ostling's discharge and asserted that this was the second
or third time Ostling had been in trouble over the starting time and that he, Mauro,
did not think there was much hope of getting Ostling back; that he, Manchester,
thereafter discussed Osthng's case with members of the executive board of the
Union, told them that nothing could or should "be done about it insofar as
arbitration was concerned" and that they agreed with his conclusion. Manchester,
however, concededly did not inform Ostling of any action by the executive board.
He explained, "I know of no requirement on my part to do this. . I think if
he was interested he would have come into the office and I would have been happy to
discuss it with him."
3. The local's refusal to accept Ostling's tender of dues following his discharge
On June 29, 1961, Ostling sent his check for his union dues for the month of
July, with a covering letter, to Secretary-Treasurer Manchester, by certified mail,
and similarly each month thereafter timely mailed a check for his dues to Manchester
at the union office. None of these checks were ever cashed or returned to Ostling;
nor was any explanation ever given him for the Union's failure to accept the dues
which he thus tendered.
The membership record for Ostling which the local produced at the hearing
shows on the last line for which any entry is made "out-6/17," followed by nota-
tions indicating that Ostling's dues for the month of June were checked off on
June 30. Manchester testified that Ostling has not been a member in good standing
in the Union after June 17, 1961, because his dues have not been paid; that
Manchester had no personal knowledge of the checks sent by Ostling in payment
of his dues; that he has informed all personnel in the Union's office "that if they
accept any checks, that they must stand personally responsible in case there is a
check that is no good"; and that except for checks from employers, it has been a
uniform practice of the Union not to accept checks in payment of dues 21
20 According to Manchester , he addressed this letter to Marrow because it was his
practice to deal with top level management representatives rather than those such as
Jobin who were on a lower level in the management hierarchy.
21 He testified that although he had never personally informed Ostling that checks
would be unacceptable, he believed that at the time of the passage of the Taft-Hartley
EMMADINE FARMS, INC.
Although the contract between the Union and Emmadine includes a union-shop
provision, the Union has not contended that Ostling's alleged delinquency in the
payment of his dues had anything to do with his failure to obtain reinstatement.
The General Counsel argues, however, that the evidence regarding the Union's
refusal to accept Ostling's checks is relevant to show the Union's hostility toward
Ostling.
4. Manchester 's alleged statement that he caused Ostling's discharge
Edwin J. Harris, a former employee of Marydale Creameries, who professed to
believe that Manchester had been responsible for his own discharge, testified that
during the last week in June 1961, pursuant to an appointment with Manchester
to discuss his discharge and the procuring of reinstatement or another job, he had
dinner and drinks with Manchester, Marydale Union Steward Murray, and another
man named Johnson, whom Harris had never seen before. During the dinner, ac-
cording to Harris, Manchester told him that "Ostling had been suspended at Em-
madine Farms, and that he [Manchester] had got him fired for going to work
three minutes early"; that Manchester had "called Harry Marrow and got him
[Ostling] suspended"; and that "they should have got him-wanted to get him on
a bigger count, but Mr. Marrow said that was good enough." 22 Harris' dinner
companions denied that Emmadine Farms, Ostling, or Marrow were mentioned on
that occasion. They even placed the date of the dinner as occurring during the
early part of June, before Ostling was discharged.
E. Analysis and conclusions
Harris' testimony set forth above is the only direct evidence adduced regarding
the Union's responsibility for Ostling's discharge. There is a ring of truth in Harris'
account, for Union Steward Mauro's testimony that Ostling, on June 17, drove out
of the plant yard at about 6 or 6:05 a.m. and that he, Mauro, left the yard about
10 minutes later-that is, at about 6:10 or 6:15-and did not see Ostling outside
the yard, indicates that Mauro probably believed Ostling left at least 3 minutes early.
Moreover, Harris' testimony that Manchester reported that he had talked to Harry
Marrow about discharging Ostling ties in with Manchester's later testimony that he
normally dealt with Marrow, Emmadine's top management representative, rather
than with lower ranking management representatives such as Jobin when discussing
problems involving Emmadine. And it was to Marrow, rather than Jobin, that Man-
chester addressed his letter regarding Ostling. Nevertheless, I do not regard Harris,
any more than Manchester, Murray, and Johnson, as a disinterested witness. Harris,
although not a close friend of Ostling, obviously admired him and had met with a
Board investigator at Ostling's home in January 1962 to discuss a possible case which
he believed he had against the Union or his former employer. Johnson and Murray,
on the other hand, were union shop stewards and, as such, each received compensa-
tion from the Union equivalent to 5 percent of the dues received by the Union from
his respective plant. Accordingly, they likewise may not be characterized as dis-
interested witnesses.
I need not, and do not resolve , these credibility issues involving Harris for I am
convinced on the basis of what I consider strong circumstantial evidence that Local
338 was responsible for Ostling's discharge and his failure to obtain reinstatement.
Relations between Manchester and Ostling , once friendly, had deteriorated sub-
stantially prior to Ostling's discharge. In their last verbal encounter during the
month preceding the discharge, Ostling had accused Manchester of not being on the
level and Manchester had in effect charged Ostling with trying to take over the local.
It is true, as the record shows, that at least three other employees also had heated
exchanges with Manchester on the same occasion and that Manchester had assured
them that he would not hold what they said against them . Indeed, it may well be
that Manchester did not particularly mind and may even have relished these op-
portunities to clear the atmosphere . As demonstrated on the witness stand, he was
a forceful speaker and was probably well able to take care of himself in these verbal
Act in 1947, the rules regarding payment of dues were discussed at membership meetings
He pointed to a provision of the local's constitution and bylaws as requiring such pay-
ments to be made in cash rather than by check. This provision reads: "No officer,
Business Representative, shop steward or employee of this local union shall have authority
to collect dues except at the union office under the direction of the Secretary-Treasurer."
I fail to see how this provision can be subject to the interpretation placed upon it by
Manchester.
2' Marrow testified that he did not discuss Ostling's discharge with any union official.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exchanges with the men. Moreover, he and various members in the past had been
able to iron out their difficulties and bury the hatchet over a few drinks or dinner.
Thus, in 1949, it was over a few drinks that he had persuaded Ostling and other
nominees to withdraw their candidacy for the position of shop steward in an elec-
tion which Manchester had decided to permit; and it was over dinner and drinks
that he had assured Harris that he had not been responsible for Harris' discharge
and had caused Harris to say that Manchester "had made a Christian out of" him
and that he "would be a good boy." 23
But Ostling had sought to avoid personal contacts with Manchester and rarely
subjected himself to Manchester's forceful personality and persuasive arguments.
Instead, he had resorted to other means of attacking or criticizing union policies and
leadership-such as writing the letter to President Conrad in November 1959 and
requesting a reply in writing-and perhaps more serious, from Manchester's point
of view, he had held informal meetings with some of the members to discuss and
criticize working conditions and the manner in which the Union was representing
the employees. The number of employees attending these meetings had increased
from approximately 8 at the first meeting to 19 or 20 at the second meeting. Man-
chester learned of the meetings and, in my view, it was principally because of them
that he decided to nip in the bud what might have developed into a revolt against
his leadership. Ostling, himself, had a forceful personality and was, as Harris
described him, a man of "strong" views, qualities which marked him as Manchester's
most likely target.
It is true, as the Union points out in its brief, that Ostling's strong views and
arguments had caused him, by his own admission , to be on unfriendly terms with
a number of people, including some of his relatives, and that he was not even
on speaking terms with some of them; but these qualities , while making a number
of enemies, also made other employees consider him a leader, with the result that
"every time anything came up ... some of the employees would go to Bob."
I do not credit Manchester's testimony that his personal attitude toward Ostling
has never changed, that his relations with Ostling have been friendly during the
entire period he has known Ostling, and that he could not remember any "scraps"
with him. His purportedly friendly feeling toward Ostling is belied not only by
his attitude toward Ostling at the hearing,24 but by his refusal to accept Ostling's
checks tendered in payment of union dues, without explaining to Ostling the reason
for refusing the tender; 25 and by his callous disregard of Ostling's repeated requests
for a hearing on his grievance.
I am convinced from all the evidence that the Union in fact caused Emmadine
to discharge and fail to reinstate Ostling. I believe it was more than coincidence
that Union Steward Mauro appeared at the plant to check loading and leaving
time on the morning of June 17, which happened to be one of the four or five
times in 2 years that Jobin decided to check trucks. Mauro had never before
appeared at the plant on his day off and his explanation, volunteered for the first
time on cross-examination , that he did so because Jobin had told him he would
dismiss any employee caught leaving early, was apparently an afterthought. If
Mauro was as concerned for the jobs of the drivers as he professed to be, why did
he not warn the drivers of Jobin's alleged threat prior to June 17-or, at the very
least, why did he not warn Ostling on the morning of June 17 when he observed
Ostling only 10 feet away loading his truck at the early hour of 5:20 a.m. Mauro's
silence is more consistent with a hope on his part that Ostling would leave early.
His later pursuit of Ostling, passing by McGrael who had left at the same time
as Ostling, and his instructions that Ostling return to the plant and start over again
are more consistent with an attempt to trap Ostling into an ostensible admission that
he had violated the leaving time rule than with an attempt to save Ostling's job.
If the latter consideration had motivated Mauro's action, why did he not explain
to Ostling, after overtaking him, that Jobin had threatened to dismiss anyone who
left early and that he, Mauro, had seen Jobin in the vicinity of the plant. I credit
Jobin's testimony that he had never told any employee what penalty, if any, would
attach for a violation of the leaving time rule and find that Mauro's belated story
2s Harris' testimony, corroborated by Manchester
24 For example, his characterization of Ostling's letter of November 1959 to Conrad as
"a bunch of gibberish" ; his statement that "It would be ridiculous for a union official
in my capacity to answer a thing like that" , and his statement, "I wasn't in trouble,"
in explaining why he had not telephoned Ostling in response to the latter's requests that
his grievance be processed.
25 I find incredible Manchester's testimony that he did not "recall" receiving any of
the letters, with dues' checks enclosed, which Ostling addressed to him.
EMMADINE FARMS, INC. 1113
about Jobin threatening the penalty of discharge was fabricated for the purpose
of furnishing some ostensibly plausible explanation for his presence at the plant
on his day off from work.
The treatment accorded Ostling in connection with his attempt to have the Union
represent him in processing his grievance further persuades me that the Union was
engaged in a conspiracy with Emmadine to deny Osthng employment. Despite Man-
chester's unexplained protestation to the contrary, I am satisfied from an examination
of the applicable contract provisions, that Ostling's presentation of his grievance
was in strict adherence to the procedures prescribed in the contract. Ostling's
repeated appeals to the Union for assistance were completely ignored, except for
Manchester's direction that he do what he had already done. Manchester was
clearly giving Ostling the runaround and his perfunctory letters of inquiry to Marrow
and Mauro were obviously self-serving attempts to cover up the Union' s respon-
sibility for Ostling's discharge.
I have already explicated my reasons for concluding that Emmadine did not
discharge Ostling for violating the 6:15 leaving rule. Upon a consideration of all
the evidence, I find that Emmadine discharged Ostling because Local 338 requested
it to do so and that Emmadine thereby violated Section 8(a)(3) and (1) of the
Act and Local 338 thereby violated Section 8(b)(2) and (1) (A) of the Act.26 In
reaching this conclusion, I find it unnecessary to decide whether Jobin was telling
the truth when he reported to Ostling on June 17 that Mauro, with Manchester's
approval, had requested his discharge and when he reported to Ostling on June 19
that Conrad also had approved the discharge. Details, such as the precise manner
in which the Union's directions to discharge Ostling were given, which union
representative or representatives gave the directions and which employer representa-
tive or representatives received them, are not important or necessary elements in
establishing violations of the Act. It is sufficient that the treatment of Ostling by
Emmadine as well as by union officials on and after June 17 leaves no room
for reasonable doubt that the discharge request was initiated by the Union and the
discharge effectuated by Emmadine pursuant to and because of that request. Cf.
United States v. United Mine Workers, 77 F. Supp. 563, 567 (D.C.D C.), affd.
177 F 2d 29 (C.A.D.C.).
Furthermore, I find that the Union's failure to honor Ostling's repeated requests
that his grievance be processed was independently a violation of Section 8(b) (1) (A)
of the Act. It is settled that the "statutory obligation [of unions] to represent all
members of an appropriate unit requires them to make an honest effort to serve the
interest of all those members, without hostility to any." Ford Motor Co. v. Huffman,
345 U.S. 330, 337. As the exclusive bargaining representative of Em,madine's em-
ployees, the Union had a legal obligation to represent all employees in the bargaining
unit, including Ostling. It had in the past successfully processed the grievance of
Czarneski who, as Jobin explained, was given a week's notice of discharge because
of "about a thousand" complaints against him, only one of which involved a viola-
tion of the leaving time rule; and in that case, Czarneski had not even filed a written
grievance, as prescribed in the bargaining agreement. Here, Emmadine's summary
discharge of Ostling appears to be clearly in violation of the agreement because
of its failure to give him the week's notice or week's pay in lieu thereof required
by the agreement Moreover, Ostling had 14 years' service with Emmadine, as
compared with Czarneski's 3 years prior to receiving his notice, and, according to
Jobin, there were "no complaints" against Ostling and he "did his work very well."
Accordingly, so far as the record shows, the Union should have had a much better
chance of success in processing Ostling's grievance than Czarneski's, which it did
successfully process.27
Even were I to accept Mauro's testimony, which I do not, that Jobin on June 19
told him, he, Jobin, had discharged Ostling because he "left early" on the preceding
Saturday morning, I find shocking and incredible Manchester's contention that the
Union failed to process Ostling's grievance because it believed its efforts would be
26 See The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A H. Bull
Steamship Company) v. N L.R B., 347 U.S. 17, 40.
21 In this connection, I note Jobin's testimony, to which Emmadine refers in its brief,
that he had expected on June 17 that Ostling would file a grievance and that the Union,
as was its practice when employees were discharged , would make an effort to secure
Ostling's reinstatement. While not committing himself as to whether or not he would
have acceded to a union request for Ostling's reinstatement , he testified that "it could
have been" that he would have reinstated Ostling if the latter, following their second
telephone conversation, had called Jobin back.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
futile.28 Such a display by Manchester of lack of confidence in his ability effectively
to represent Ostling is not in keeping with his bold threat from the witness stand
that Jobin "will pay for this"-referring to Jobin's testimony that he falsely attributed
responsibility to the Union in telling Ostling he was discharged . I also find in-
credible Manchester 's testimony that because Ostling, following his discharge, com-
municated with the Union only through registered letters rather than through
attempted personal interviews , he believed Ostling was "not too much interested in
his job." In this connection , I note that Manchester did not seek any personal
interviews with Ostling and that Manchester allegedly communicated with Emmadine
and with Mauro regarding Ostling's discharge only through correspondence.
I find that, under the circumstances of this case, the local's failure to comply
with Ostling's repeated requests that it process his grievance was a flagrant breach
of the local's statutory obligation to represent Ostling as a member of the bargaining
unit and that this constituted restraint and coercion of Ostling in the exercise of
his rights guaranteed under Section 7 of the Act, within the meaning of Section
8(b) (1) (A) of the Act. N.L.R.B. v. Die and Tool Makers Lodge No. 113, et at.,
231 F. 2d 298, 302 (C.A. 7), cert. denied 352 US. 833.
IV. CONCLUSIONS OF LAW
1. By discharging Ernest G. Ostling at the request of Respondent Local 338,
Respondent Emmadine Farms, Inc., has violated Section 8 ( a) (3) and ( 1) of the
Act.
2 By causing Respondent Emmadine Farms, Inc., to discharge Ernest G. Ostling,
Respondent Local 338 has violated Section 8(b) (2) and (1) (A) of the Act.
3. By failing to honor Ostling's repeated requests that Respondent Local 338
process a grievance in connection with his discharge , Respondent Local 338 has re-
strained and coerced Ostling in the exercise of his rights under Section 7 of the Act,
thereby violating Section 8 (b) (1) (A) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
V. THE REMEDY
It having been found that Respondent Emmadine and Respondent Local 338
have engaged in certain unfair labor practices, my Recommended Order will
require that they cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Because the flagrantly coercive and discriminatory treatment of Ostling by Re-
spondents goes to the very heart of the Act and indicates a purpose to defeat the
exercise by employees of the rights guaranteed in Section 7 of the Act, I am con-
vinced that a cease-and-desist order coextensive with the guarantees of Section 7 is
warranted in this case to prevent other unfair labor practices potentially related
to those found herein. I shall therefore recommend that Respondents be required
to cease and desist from in any other manner infringing upon the employees Sec-
tion 7 rights.
My Recommended Order will require that Emmadine offer Ostling immediate
and full reinstatement to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges; that Local 338 request
28 See, e .g , the following testimony of Manchester
Q. Mr. Ostling never had a hearing, I think there is no question about that, either
at the union office or at the employer 's office. Is there any reason why an attempt
wasn't made to give him a chance to be heard 9
A. What would be the sense of it. . . In my opinion , there was no justification
for a hearing.
And at another point , Manchester testified:
Q. And you recommended that it [Ostling's case] wouldn 't go to arbitration?
A. That's right
Q. Prior to your recommendation had you made any investigation of the circum-
stances of the case?
A. I investigated through the steward, and I investigated through the employer
I had been in contact through writing with both of these people.
Q. Did you form any conclusion on the basis of that investigation's
A Yes, it was my decision that the matter was-there was nothing that could be
done about it, or should be done about it insofar as arbitration was concerned.
EMMADINE FARMS, INC. 1115
Emmadine, in writing, to reinstate Ostling; and that Emmadine and Local 338
jointly and severally make Ostling whole for any loss of pay suffered by reason of
the discrimination against him, by payment to him of a sum of money equal to that
which he would normally have earned from June 19, 1961, the date of his discharge,
to the date of compliance by each Respondent respectively with the reinstatement
provisions, less his net earnings during that period. The loss of earnings shall be
computed in accordance with the formula set forth in F. W. Woolworth Company,
90 NLRB 289. Local 338's liability shall terminate 5 days after it furnishes Emma-
dine with a written statement withdrawing its objection to Ostling's employment and
requesting his reinstatement. In addition, my Recommended Order will provide
that Emmadine shall make available to the Board, upon request, payroll and other
records to facilitate the checking of compliance with these recommendations, and
that both Respondents shall post appropriate notices.
The General Counsel has requested that my Recommended Order include a pro-
vision that Respondents pay interest at the rate of 6 percent per annum on the
backpay due Ostling, commencing with the end of the first calendar quarter follow-
ing his discharge. In view of the fact, however, that the Board's remedial orders
have never before provided for interest as a part of the sum necessary to make
employees whole, and espectially in view of the fact that the Board in 1951 ex-
pressly rejected the recommendation of a Trial Examiner in a backpay proceeding
that interest for a period subsequent to the court's enforcement decree be included
in the backpay awards (Sifers Candy Company, 92 NLRB 1220), I deem it in-
appropriate for me to include in my Recommended Order a provision inconsistent
with Board practice or policy thus previously established.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that:
A. The Respondent, Emmadine Farms, Inc., New York, New York, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in Milkdrivers and Dairy Employees Union, Local
338, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, by discharging, refusing to reinstate, or in any other manner
discriminating in regard to the hire or tenure of employment of employees, or any
term or condition of employment, except as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959.
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8(a)(3) of
the Act, as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action designed to effectuate the policies of
the Act-
(a) Offer Ernest G. Ostling immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and, jointly and severally with the Respondent Union, make him
whole for any loss of pay as the result of the discrimination against him, in the
manner set forth in the section of the Intermediate Report entitled. "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to
an analysis of the amount of backpay due and the right of reinstatement under
the terms of this Recommended Order.
(c) Post at its place of business in New York, New York, copies of the attached
notice marked "Appendix A." 29 Copies of said notice, to be furnished by the
Regional Director for the Second Region, shall, after being duly signed by Respond-
29 In the event that this Recommended Order be adopted by the Board , the words "A De-
cision and Order" shall be substituted for the words "The Recommendations 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 "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent Emmadine Farms, Inc., be posted immediately upon receipt thereof, in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent Emmadine Farms, Inc.,
to insure that said notices are not altered, defaced, or covered by any other material.
(d) Post at the same places and under the same conditions set forth in (c) above,
and as soon as they are forwarded by the Regional Director, copies of the Re-
spondent Union's notice herein marked "Appendix B."
(e) Furnish to said Regional Director signed copies of the notice marked "Ap-
pendix A" for posting by Respondent Union, as hereinafter directed.
(f) Notify the Regional Director for the Second Region, in writing, within 20
days from the receipt of this Intermediate Report and Recommended Order, what
steps it has taken to comply therewith.30
B. The Respondent, Milkdrivers and Dairy Employees Union, Local 338, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, its officers, agents, representatives, successors , and assigns , shall:
1. Cease and desist from:
(a) Causing or attempting to cause Emmadine Farms, Inc., to discharge, refuse
to reinstate, or otherwise discriminate against any of its employees in violation of
Section 8(a)(3) of the Act.
(b) Denying equal representation to employees in the appropriate bargaining
units represented by Respondent Union, by discriminating against any of such em-
ployees in the processing of their grievances, on the basis of whether such employees
have opposed union policies or leadership.
(c) In any other manner restraining or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor organization, as
authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the policies of the
Act.
(a) Jointly and severally with Respondent Emmadine Farms, Inc., make whole
Ernest G. Ostling for any loss of pay suffered by reason of the discrimination against
him, in the manner set forth in "The Remedy" section of the Intermediate Report.
(b) Notify Ernest G. Ostling and Emmadine Farms, Inc., in writing, that it with-
draws its objection to Ostling's employment and requests his reinstatement.
(c) Post at its offices, copies of the attached notice as "Appendix B " 31 Copies
of said notice, to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondent Union's representative, be posted im-
mediately upon receipt thereof, and be maintained by the Respondent Union for 60
consecutive days thereafter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken by the Re-
spondent Union to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Post at the same places and under the same conditions as set forth in (c)
above. as soon as they are forwarded by the Regional Director, copies of the
Respondent Emmadine Farms, Inc 's notice marked "Appendix A."
(e) Forward signed copies of "Appendix B" to the Regional Director for posting
by Respondent Emmadine Farms, Inc, at its place of business.
(f) Notify the Regional Director for the Second Region, in writing, within 20
days from the receipt of this Intermediate Report and Recommended Order, what
steps have been taken to comply therewith 32
811n 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
31 See footnote 29, supra
12 See footnote 30, supra
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, as amended, we hereby notify our employees that:
EMMADINE FARMS, INC. 1117
WE WILL NOT encourage membership in Milkdrivers and Dairy Employees
Union, Local 338, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, by discharging, refusing to reinstate, or in
any other manner discriminating against any employee in regard to hire or
tenure of employment or any term or condition of employment except as
authorized by Section 8(a)(3) of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement requiring mem-
,bership in a labor organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act, as modified by the Labor-Management Report-
and Disclosure Act of 1959.
WE WILL offer Ernest G. Ostling immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and jointly and severally with Milkdrivers and
Dairy Employees Union, Local 338, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, and make him whole for
any loss of pay suffered as a result of our discrimination against him
All our employees are free to become or remain or to refrain from becoming
or remaining members of the above-named Union, or any other labor organization,
except to the extent that this right may be affected by an agreement in conformity
with Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
EMMADINE FARMS, 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 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, 745 Fifth
Avenue, New York 22, New York, Telephone Number, Plaza 1-5500. if they have
any questions concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Emmadine Farms, Inc., to discrimi-
nate against Ernest G. Ostling, or any other employee, in violation of Section
8(a)(3) of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL notify Emmadine Farms, Inc., in writing, that we withdraw our
objections to his employment and request his reinstatement to his former or a
substantially equivalent position.
WE WILL jointly and severally with Emmadine Farms, Inc., make Ernest G.
Ostling whole for any loss of pay suffered because of the discrimination against
him
WE WILL NOT deny equal representation to employees in the appropriate
bargaining units represented by us, by discriminating against any of such em-
ployees in the processing of their grievances, on the basis of whether such em-
ployees have opposed union policies or leadership
WE WILL NOT in any other manner restrain or coerce employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8(a)(3)
HIS DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
MILKDRIVERS AND DAIRY EMPLOYEES UNION,
LOCAL 338 , INTERNATIONAL BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN
AND HELPERS OF AMERICA,
Labor Organization.
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, 745 Fifth
Avenue, New York 22, New York, Telephone Number, Plaza 1-5500, if they have
any question concerning this notice or compliance with its provision.
The Lane Construction Corporation and Elmer G . Travis. Case
No. 3-CA-1627. September 27, 1962
DECISION AND ORDER
On May 7, 1962, Trial Examiner John H. Dorsey issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report 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 [Chairman McCulloch and Members Rodgers and Fanning].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and adopts the findings and conclusions of the Trial Examiner
except as modified herein.'
The Trial Examiner found that the Respondent did not violate
Section 8(a) (1) and (3) of the Act when it refused to rehire Elmer
G. Travis, and he recommended that the complaint be dismissed in
its entirety. We agree with the Trial Examiner.
Specifically the Trial Examiner stated as his grounds for dis-
missing the complaint : ". . . I am convinced by the facts and by my
observations of the demeanor of the witnesses that Travis, while in
' In the Intermediate Report, the Trial Examiner discussed whether the precedent set
forth in Gibbs Corporation, 124 NLRB 1320, applies to the instant case. Further, he
stated that the complaint fails for lack of proof of the fact that there was a job available
for Travis In view of our dismissal of the complaint on other considerations, we do
not adopt the portions of the Intermediate Report dealing with these matters.
138 NLRB No. 424.