Foremost Dairies, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1949

83 N.L.R.B. 1094 (N.L.R.B. 1949)

In the Matter of FOREMOST DAIRIES, INC. and AMALGAMATED MEAT
CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, A. F. OF L.
Case No. 10-CA-234.-Decided June 6, 1949
DECISION
AND
ORDER
On March 2, 1949, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had committed unfair labor practices in violation of
Section 8 (a) (1) and 8 (a) (3) of the National Labor Relations Act,
as amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a brief in support thereof.
The Board 1 has reviewed the Trial Examiner's rulings made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
We agree with the Trial Examiner's finding, fully supported in the
record, that the decision to discharge Currin and McGee was not based
on any deficiency in their work or behavior. The Trial Examiner
found that Superintendent Hopkins, the immediate supervisor of
both of them, told Currin : "I thought Mr. Dryden had better sense
than to fire anybody because of the Union." There is nothing in the
record which warrants our disturbing this credibility finding. With
this credited statement before us, as well as the other credible evidence
recited herein, we find it inescapable to affirm the Examiner's con-
clusion that Currin and McGee were discharged for organizing and
soliciting for the Union, in violation of the Act.
% Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
National Labor Relations Board has delegated its powers in connection with this proceed-
ing to a three -member panel [ Members Reynolds , Murdock, and Gray].
83 N. L. R. B., No. 152.
1094
FOREMOST DAIRIES, INC.
ORDER
1095
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Foremost Dairies, Inc.,
Fayetteville, Tennessee, and its officers, agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, A. F: of L., or in any other labor
organization of its employees by discharging employees or in any
other manner discriminating in regard to their hire and tenure of
employment or any term or condition of employment because of mem-
bership in or activity in behalf of such organization;
(b) Interrogating employees concerning their disposition toward
unions, promising benefits or threatening reprisals in connection
with employees exercising their statutory freedom of choice with re-
spect to unions, soliciting employees to spy upon other employees
exercising their right to self-organization, or in any other manner
interfering with, restraining, or coercing employees in the exercise of
their right to self-organization, to form labor organizations, to join
or assist Amalgamated Meat Cutters and Butcher Workmen of North
America, A. F. of L., or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Van B. Currin and Daniel T. McGee immediate and
full reinstatement each to his former or substantially equivalent posi-
tion without prejudice to his seniority or other rights and privileges;
(b) Make Van B. Currin and Daniel T. McGee whole for any loss
of earnings each may have suffered by reason of the discrimination
against him;
(c) Post at Respondent's plant in Fayetteville, Tennessee, copies of
the notice attached hereto and marked "Appendix A." 2 Copies of
the said notice, to be supplied by the Regional Director for the Tenth
Region, shall, after being duly signed by Respondent's representa-
tives, be posted by Respondent immediately upon receipt thereof and
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees cus-
2In the event that this Order is enforced by a United States Court of Appeals, there
shall be inserted , before the words: "DECISION AND ORDER," the words: "A DECREE
OF THE UNITED STATES COURT OF APPEALS ENFORCING."
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tomarily are posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered , defaced , or covered by
other material;
(d) Notify the Regional Director for the Tenth Region (Atlanta,
Georgia) in writing within ten (10) days from the date of this Order
what steps the Respondent has taken to comply herewith.
APPENDIX A
NOTICE TO ALI, EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any 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 Amalgamated Meat
Cutters and Butcher Workmen of North America, A. F. of L.
or any other labor organization , to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
WE WILL OFFER to Van B. Currin and Daniel T. McGee imme-
diate and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or other
rights and privileges previously enjoyed, and make them whole
for any loss of pay suffered as a result of the discrimination.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
FOREMOST DAIRIES, INC.,
Employer.
Dated --------------------- By -----------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Jerold B. Sindler, Esq ., and Charles M. Paschall , Jr., Esq., of Atlanta, Ga., for
the General Counsel
Mr. A. C. Allen , of Madison, Tenn., for the Union.
I. Walter Fisher , Esq., of Atlanta, Ga ., for Respondent.
FOREMOST DAIRIES, INC.
STATEMENT OF THE CASE
1097
Upon a charge duly filed April 9, 1948, by Amalgamated Meat Cutters and
Butcher Workmen of North America, herein called the Union, the General Counsel
of the National Labor Relations Board, herein called, respectively, the General
Counsel' and the Board, caused the Regional Director of the Board for the Tenth
Region (Atlanta, Georgia), to issue a complaint dated January 14, 1949, against
Foremost Dairies, Inc., Fayetteville, Tennessee, herein called Respondent, alleg-
ing that Respondent had engaged in and was enAging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1) and (3) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136,
herein called the Act. Copies of the charge, the complaint, and a notice of
hearing, were duly served upon Respondent and the Union.
With respect to unfair labor practices, the 'complaint as amended at the hear-
ing, alleged in substance that Respondent had (1) on or about April 3, 1948,
discriminatorily discharged Van B. Currin and Daniel T. McGee, and thereafter
refused to reinstate them, and (2) interrogated employees concerning their union
affiliations and activities ; promised benefits to employees to encourage them not
to support the Union ; threatened to require increased individual production from
employees in connection with joining the Union ; and threatened employees with
disciplinary action if they engaged in concerted activities.
Respondent's answer, dated January 18, 1949, admitted certain of the com-
plaint's jurisdictional allegations but denied 2 the commission of unfair labor
practices.
Pursuant to notice, a hearing was held in Fayetteville, Tennessee, on February
1 and 2,3 1949, before the undersigned Trial Examiner duly designated by the
Chief Trial Examiner. The General 'Counsel, Respondent, and the Union were
represented. All parties participated in the hearing and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues.
At the close of the hearing, a motion by the General Counsel to conform the
pleadings to the proof was granted without objections. Briefs have been received
from the General Counsel and Respondent.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Foremost Dairies, Inc., is a Delaware corporation with its principal office in
Jacksonville, Florida. At Fayetteville, Tennessee, Respondent is engaged in the
manufacture, sale, and distribution of ice cream and related products.
In 1948, Respondent purchased for use, at Fayetteville, raw materials consisting
of sweet cream, dry and liquid milk, paper containers, flavors, fruits, and extracts,
valued in excess of $250,000, of which approximately 15 percent was shipped to
Fayetteville from points outside the State of Tennessee. During the same period,
Respondent manufactured and sold finished products consisting principally of ice
I This designation, as used herein, includes, the attorneys representing the General
Counsel at the hearing.
2 The denial was general . A motion by the General Counsel at the hearing to make
the answer more definite and certain was denied.
2 The record shows these dates as February 2 and 3. It is hereby corrected.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cream and ice cream novelties having a value in excess of $250,000, of which
approximately 50 percent in value was shipped to points outside the State of
Tennessee.
H. THE ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America, affiliated
with the American Federation of Labor, is a labor organization admitting to
membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
Respondent manufactures ice cream in one department of the plant called the
freezer room and so-called novelties, such as popsicles, in another. Robert
Dryden is in full charge of all manufacturing operations, as well as the office,
sales and delivery divisions. Under Dryden, in charge of manufacture, is Murray
Hopkins ; in charge of sales and delivery, Paul Marquess ; as foreman in the
novelty department, Elbert Petty ; and as office supervisor, Doris Ray. Both
Petty and Hopkins possessed authority to hire and discharge, and according to
Dryden's credited testimony exercised it.
Demand for ice cream being considerably greater during the warm months,
the number of workers in the freezer room was curtailed during the winter.
Then even with reduced force the freezer room employees were occasionally with-
out sufficient work to require strict devotion to duty at all hours of the day.
Van B. Currin was employed by Respondent's predecessor and continued as a
helper in the freezer room when Respondent took over the plant on January 1,
1947. In April or May of that year, Currin borrowed $150 from Dryden agreeing
to curtail the loan by weekly payments. Currin ceased these payments in
December, telling Dryden that he was unable to meet the obligation.
In August 1947, according to the credited testimony of Ralph Askins, a tem-
porary employee, Currin requested Askins to slow his working tempo. Askins
reported this incident to Dryden.
In the Fall of 1947, Currin borrowed a sum of money from Respondent's petty
cash fund and did not repay it until his discharge several months later.
In February 1948, a local doctor wrote Respondent complaining that Currin
was making no apparent effort to pay the doctor a bill in the amount of $147 for
professional services. Paul Marquess, with Dryden's permission, approached
Currin in this connection and upon Currin's plea of financial stringency, agreed to
give Currin opportunity to work extra hours on Respondent's trucks. Thereafter
Currin was enabled to augment his income by working Sundays in Marquess'
department.
On March 6, Dryden called the freezer room employees, including Currin and
Daniel T. McGee, the freezer man, before him. After first discharging Willard
McCowan, whom he described as a "clock watcher," Dryden warned the men that
he would tolerate no loafing in the freezer room, that he would not countenance
a practice of one employee doing more than his assigned stint in order to hide the
deficiencies of another, told the workers that they knew what work was expected
of them and that he would require them to fulfill that expectation. Dryden
singled out Currin, asserted that Currin was dissatisfied, and inquired for the
reason. Currin replied that he was not content with his wages.
On April 1, Currin and McGee signed applications for membership in the
Union. On the same date, Currin secured the signatures of three girls in the
popsicle department. That night Currin and McGee persuaded a number of
Respondent's employees to sign Union applications but were unable to persuade
Robert Locke, the "mix man," that he should do so.
FOREMOST DAIRIES, INC. 1099
At the close of the day on April 3, Dryden discharged Currin and McGee, giving
as a reason that they had been "slowing down production."
On April 4, Superintendent Hopkins visited the home of Currin and, according
to Currin, said, "I didn't get a chance to see you last night and talk to you ...
1 thought I'd come by this morning and talk to you.... I just'want to tell you that
I think you got a dirty deal last night . . . I thought Mr. Dryden had better
sense than to fire anybody because of the Union." Currin further testified that
Hopkins went on to say : "[I] told Mr. Dryden that he didn't have guts enough to
tell [you and McGee] what he fired [you] over." Hopkins, still according to
Currin, assured Currin that his work had been satisfactory.
On the same day, McGee had two conversations with Hopkins. According to
McGee's testimony Hopkins asserted that he had no knowledge that McGee was
to be discharged before that occurrence and that 'he considered McGee a satis-
factory worker.
Hopkins admitted visiting Currin on April 4 and having a conversation with
McGee on that date. Hopkins explained that his purpose in calling upon Currin
was to tell him that any future prospective employer should feel free to consult
Hopkins about Currin's qualifications as a worker and, in such event, Hopkins
would tell the inquisitor "whatever I think about you." The same statement,
according to Hopkins, was made to McGee. Hopkins testified that he recalled
saying nothing further to either of them, denied knowing before the discharges
that either of them were union members or interested in the Union, denied
commenting about the discharges to Dryden but recalled that immediately after
the discharges were made, Dryden remarked that "he had decided that he'd
just get it over with and start in new even though it would be hard on us to get
our production started up again."
Dryden testified that his dissatisfaction with Currin as an employee derived
from an accumulation of incidents the first of which occurred in the Summer of
1947, when Askins reported Currin's request that Askins not "lay" ice cream so
fast. This request meant to Dryden, he testified, that Currie was attempting
to slow down production and to spread it over longer hours in order to get more
overtime pay Dryden further testified that for a long period of time he had
observed Currin to fail in assuming his share of the work in the freezer room
and that complaints to that effect attributed to McGee had been relayed to him.
When the doctor sought Respondent's assistance in collecting a bill from Cur-
rie, Dryden testified that he decided upon Currin's discharge. Marquess dis-
suaded him from that action, according to both Dryden and Marquess, and he
decided to give Currin another chance.
On March 6, all witnesses agree, Dryden warned the freezer room force, in-
cluding McGee and Currin, that loafing must cease and that an employee at-
tempting to "cover up" another's delinquencies would be discharged. Dryden
testified that this was direct warning to and criticism of Curren although he was
not singled out by name. According to Dryden, on other unspecified occasions
he had told Currin that his work performance was unsatisfactory.
Dryden further testified that during the week of April 3, ' he discovered McGee
and Currin running the freezer at less than capacity, permitting another freezer
to remain idle, and using a mix which had not first been cooled to the proper
temperature. It was then he decided, according to his testimony, that he would
discharge both of them. At the end of the week he did so. Perhaps an hour after
McGee testified that this happened in late February Hopkins could not recall when
it happened and conceded that it might have occurred before March 6. Marquess thought
it took place shortly before the discharges.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discharge Dryden received a telephone call from a representative of the
Union protesting the discharge. Only then, Dryden asserted, did he learn that
Currin and McGee had become interested in the Union. Hopkins, however, who
was present on this occasion told Dryden, the latter testified, "Yes, I knew
that." '
The General Counsel contends that the circumstances surrounding the dis-
charges are such that it is only reasonable to infer that they were motivated by
Respondent's desire to rid itself of the two employees who were attempting to
organize for the Union.
Respondent, on the contrary, insists that the discharges were for other, and
valid reasons ; that Currin was a slow, inattentive and unwilling worker ; and
that McGee, although a capable and diligent employee was remiss in the matter
of the warm mix and was performing part of Currin's work in an attempt to
shield the latter from the consequences of his poor work performance. In any
event, it is suggested, Respondent had no knowledge that either of the men was
a union protagonist and, indeed, had no knowledge that any movement looking
toward the unionization of the employees was under way.
The evidence supports the position of the General Counsel. It is undoubtedly
true that Currin was not a fast worker and that McGee had complained to Hop-
kins about this characteristic. And, too, it is obvious that Currin was experi-
encing financial difficulties and was not meeting his bills promptly That the
incident concerning the doctor's bill was annoying to Respondent requires no
comment. McGee, who worked with Currin for more than a year before the
discharges testified that Currin was a thorough worker but slow. No doubt
McGee complained of Currin's slowness and that those complaints reached the
ears of Dryden. McGee also admitted that he helped Currin perform his tasks
occasionally. Hopkins testified that Currin appeared sometimes to tire near the
end of a busy day and, Askins' testimony that Currin asked him not to "lay" ice
•cream so fast relates a request that a slow and tired worker well might make.
On one occasion in the Summer of 1947, Currin displayed a prankish spirit when
he seized opportunity to pinch a fellow employee-female. The young lady
incensed by this maneuver, struck Currin with a stick which, happily, she held,
inflicting a minor wound on Currin's hand.
The sum of these incidents and observations led Dryden to the belief, he tes-
tified, that Currin was just not the sort of employee he wanted in the plant and,
when the incident of the warm mix occurred, to the decision that Currin
must go.
There is, however, evidence of a persuasive character that Dryden's decision
was not based upon Currin's slowness, weariness, delinquency in paying bill, or
horse-play. Currin denied that his work ever was criticised, except on March 6
when he in common with all employees in the freezer room was warned that
loafing would not be tolerated. Nothing was said to him concerning the pinching
incident or of his request that Askins not work so fast. The testimony of his
immediate superior, Hopkins, called by Respondent is, in effect, that Currin was
a reasonably satisfactory worker. If this were not so, it is difficult to understand
why Marquess would have provided opportunity for Currin to work overtime on
the trucks. But the most convincing evidence that Currin was not discharged
because of dissatisfaction with his work lies in the remark of Hopkins to him
on April 4, that Currin's work was satisfactory, that he was discharged because
of his interest in the Union. I have fully credited Currin's testimony concerning
his conversation with Hopkins on that occasion. Currin impressed me as a credi-
ble witness, furthermore, Hopkins testimony concerning that occasion does not
FOREMOST DAIRIES, INC. Hot
constitute a denial that he spoke as Currin said he did. In what .appeared to me-
to be obvious embarrassment, Hopkins explained that lie went to Currin's home-
to assure Currin that if any prospective employer inquired of Hopkins concern-
ing Currin's work record with Respondent, Hopkins would answer the inquiry.
Hopkins testified that he could recall saying nothing further to Currin. I do not
believe that a supervisor would go to the home of a discharged employee to
deliver such a meaningless message. I do not believe that Hopkins did so
Both Dryden and Hopkins denied that they had knowledge that McGee and
Currin were active in behalf of the Union, or, indeed, that any employee at the-
plant was. Lack of knowledge upon the part of Hopkins is, however, disputed by
Dryden who testified that when a representative of the Union protested the dis-
charges an hour after they occurred, Hopkins acknowledged that he knew Currin
and McGee were interested in the Union. Robert Locke, the mix man, testified
that he had given such information to Hopkins and that he believed that he had
done so before the discharges. Locke testified to this reluctantly but, I believe,-
truthfully. His testimony is credited. I have also considered that Respondent's
plant is a small one, employing less than 25 persons and that it is situated in
a small community. It is a reasonable inference that knowledge of the efforts
made by McGee and Currin to secure members for the Union came to the atten-
tion of Dryden and Hopkins quickly.6 I find that both had such knowledge
before the discharges occurred.
The entire atmosphere surrounding the discharges is conspirational. Both
Dryden and Hopkins testified that Hopkins was not consulted concerning them
although the men worked directly under Hopkins. It was explained] that
Hopkins had been advanced to superintendent from the freezer-room, had worked
with McGee and Currin as a fellow employee, and thus would be reluctant to-
advise or concur in the discharges. So, Dryden testified, he kept his purpose
to himself, divulging to no one his determination until he had Currin and McGee
before him. Thus Hopkins who would have to arrange on Monday to replace
two workers in ice cream production (note Hopkins testimony that it would be-
difficult to start production again) was not aware of this necessity until Saturday
night.
The evidence as to McGee is that he was a capable and diligent worker. About
5 weeks after his discharge, he was rehired by Respondent and since has been
working in Respondent's plant in Johnson City, Tennessee. Dryden told him
on April 3 that he was being discharged for slowing production. There is a
total lack of evidence that he was guilty of the charge unless the warm mix
incident might be so described. McGee did attempt to freeze a mix which had
not been sufficiently cooled and the error was his. This occurrence made such
slight impression upon Hopkins, who was directly responsible for production
that he could not at the hearing recall when it took place. Dryden also com-
plained that McGee "covered up" for Currin. But one of the allegations about
Currin was that he forced McGee to do his, Currin's, work and that McGee
expressed his discontent about that. A somewhat similar involution is apparent
in Respondent's assertion that the warm mix incident was the immediate occasion,
for Currin's discharge even though the evidence is clear that Currin had no,
responsibility for this error and that of the two, McGee alone could properly
be criticised.
The explanation is that Respondent has not advanced the reasons which moti-
vated the discharges and those which were offered amounted to no more than
6 N. L. R. B. v. Abbott Worsted Mills, Inc., 127 F. ( 2d) 438 , 440 (C. A. 1).
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pretexts. I find that Dryden decided to discharge Currin and McGee because
they were soliciting employees to join the Union. By discharging McGee and
Currin on April 3, 1948, Respondent discouraged membership in the Union and
interfered with, coerced and restrained employees in their rights under Section
7 of the Act. Respondent thereby violated Section 8 (a) (1) and (3) of the Act.
Theola Bankston was employed by Respondent in the popsicle room on July
27, 1947. Bankston worked under Elbert Petty, a foreman who possessed author-
ity to hire and discharge At Currin's solicitation, Bankston signed a union
application-for-membership card on April 1. On April 7, in the plant, Petty
asked her what she thought about the "CIO."' Bankston replied that she favored
it. Petty then went on to say that Respondent had intended giving the em-
ployees a 10 cent raise but that "the union man came down from Nashville and
knocked that in the head." Petty then suggested that Bankston so inform any
of the other girl employees if she desired. Petty further warned that if the
Union were successful in organizing the employees, they would be laid off during
the winter months instead of having year-round work; that a union was all right
in some shops but not in one as small as Respondent's.
Robbie Ramsey, a worker in the popsicle department, was employed from May
20, 1947, to June 18, 1948. With Bankston, Ramsey signed a union application
on April 1. She, too, was approached by Petty on April 7, when he inquired for
her opinion about the Union, remarked that Respondent's plant was too small
to be organized, warned that if the employees joined the Union, they would be
required to increase individual production, would not be afforded opportunity
for overtime work, and would be laid off during the winter months. Petty then
suggested that Ramsey attend union meetings and report the proceedings to him.
Later, on the same day, after the working hours but in the plant, Petty told
Ramsey that Dryden had offered a 10 cent raise "to forget the Union" and sug-
gested that Ramsey so inform the other employees. Petty also said that Re-
spondent might lend Ramsey money to attend school thus to fit herself for work
in Respondent's office.
Bankston and Ramsey testified in a straight-forward and convincing manner.
Bankston was unshaken upon cross-examination ; Ramsey was not cross-exam-
ined. Petty was not called as a witness and no suggestion was made that he
was unavailable. In these circumstances, the testimony of Bankston and
Ramsey is credited.
By interrogating employees concerning their disposition toward the Union,
by asserting that the Union had cost them a wage increase, by threatening
worsened working conditions and lessened earnings if the Union succeeded in
the organizational attempt, by soliciting Ramsey's services as a spy upon
meetings of the Union, and by suggesting a probable reward to Ramsey in com-
pensation for her active opposition to the Union, Respondent interfered with,
restrained and coerced employees in the exercise of their rights under Section 7
of the Act in violation of Section 8 (a) (1) of the Act.` It is so found.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The acts of Respondent set forth in Section III, above, occurring in connection
with the operations of Respondent described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
O There is no suggestion that any union affiliated with the Congress of Industrial
Organizations was attempting to organize the employees I take this reference to be to the
Union.
T Matter of Elwood M. Jenks, 81 N. L. R. B. 707.
FOREMOST DAIRIES, INC. 1103
several States, and such of them as have been found to constitute unfair labor
practices, tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has committed unfair labor practices, it will
be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
In consequence it will be recommended that Van B. Currin and Daniel T.
McGee be offered immediate and full reinstatement each to his former or sub-
stantially equivalent position at Fayetteville, Tennessee, without prejudice to
his seniority or other rights and privileges and that Respondent make each whole
for any loss of earnings he may have suffered by reason of the discrimination
against him by payment to each of a sum of money equal to the amount he would
have earned as wages from April 3, 1948, to the date of Respondent's offer of
reinstatement less his net earnings 8 during that period.
By the discriminatory discharges, by interrogating employees concerning their
disposition toward the Union, by stating that the Union had cost employees a
wage increase, by threats of economic reprisal to be effective should the employees
accept the Union as a bargaining representative, and by seeking to enlist an
employee as a spy upon the employees protected concerted activities, Respond-
ent has evinced a general disposition to interfere with the rights of employees
guaranteed by the Act. In consequence, it will be recommended that Respondent
be required to cease and desist from in any manner interfering with, restraining,
or coercing its employees in their rights under the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters and Butcher Workmen of North America, affili-
ated with the American Federation of Labor, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discharging Van B. Currin and Daniel T. McGee on April 3, 1948, thereby
discouraging membership in the Union, Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By these discharges and by unlawful interrogation, threats, promises, and
solicitations, Respondent interfered with, restrained, and coerced employees
in the exercise of rights guaranteed in Section 7 of the Act and thereby has
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATION'S
Upon the basis of the above findings of fact and conclusions of law, I recom-
mend that Respondent, Foremost Dairies, Inc., Fayetteville, Tennessee , its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Meat Cutters and Butcher
Workmen of North America, A. F. of L ., or in any other labor organization of its
8 Crossett Lumber Company, 8 N. L. R . B 440 , 497-498.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees by discharging employees or in any other manner discriminating in
regard to their hire and tenure of employment or any term or condition of employ-
ment because of membership in or activity in behalf of such organization ;
(b) Interrogating employees concerning their disposition toward unions, prom-
ising benefits or threatening reprisals in connection with employees exercising
their statutory freedom of choice with respect to unions, soliciting employees to
spy upon other employees exercising their right to self-organization, or in any
other manner interfering with, restraining, or coercing employees in the exer-
cise of their right to self-organization, to form labor organizations, to join or
assist Amalgamated Meat Cutters and Butcher Workmen of North America,
A. F. of L., or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection.
2. Take the following affirmative action which I find will effectuate the policies
of the Act :
(a) Offer to Van B Currin and Daniel T. McGee immediate and full reinstate-
ment each to his former or substantially equivalent position ° without prejudice
to his seniority or other rights and privileges ;
(b) Make Van B. Currin and Daniel T. McGee whole for any loss of earnings
each may have suffered by reason of the discrimination against him;
(c) Post at Respondent's plant in Fayetteville, Tennesse, copies of the notice
attached hereto and marked "Appendix A." Copies of the said notice, to be
supplied by the Regional Director for the Tenth Region, shall, after being duly
signed by Respondent's representatives, be posted by Respondent immediately
upon receipt thereof and maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to employees
customarily are posted. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by other material;
(d) Notify the Regional Director for the Tenth Region (Atlanta, Georgia) in
writing within twenty (20) days from the date of the receipt of this Intermediate
Report what steps the Respondent has taken to comply herewith.
It is further recommended that, unless on or before twenty (20) days from
the receipt of tLis Intermediate Report the Respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Rochambeau Building, Washington 25, D. C., an original and
six copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report and Recommended Order or to any other part of the record or
proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and six copies of a brief in support thereof ; and any
party may, within the same period, file an original and six copies of a brief in
support of the Intermediate Report and Recommended Order. Immediately upon
9 In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position wher-
ever possible and if such position is no longer in existence then to a substantially equivalent
position." See Matter of The Chace National Bank of the City of New York, an Juan,
Puerto Rico Branch, 65 N. L . R. B. 827.
I
FOREMOST DAIRIES, INC. 1105
the filing of such statement of exceptions and/or briefs, the party filing the same
shall serve a copy thereof upon each of the other parties. Statements of excep-
tions and briefs shall designate by precise citation the portions of the record
relied upon and shall be legibly printed or mimeographed, and if mimeographed
shall be double spaced. Proof of service on the other parties of all papers filed
shall be promptly made as required by Section 203.55.,' As further', provided in
said Section 203.46 sho,u+ld any party desire permission to argue oually before
the Board, request therefor must be made in writing to the Board within
ten (10) days from the date of service of the order transferring the case to the
Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provi`(Ted in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 2nd day of March 1949.
WALLACE E. ROYSTER,
Trial Examiner.
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 National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Amalgamated Meat Cutters and Butcher
Workmen of North America, A. F. of L. or any other labor organization, to
bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
WE WILL OFFER to Van B. Currin and Daniel T. McGee immediate and full
reinstatement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the dis-
crimination.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
FOREMOST DAIRIES, INC.,
Employer.
Dated -------------------- By ----------------------------
(Representative) (Title)
This notice must remain, posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.