Ideal Donut Shop

National Labor Relations Board - Board Decisions

Aug 7, 1964

148 N.L.R.B. 236 (N.L.R.B. 1964)

236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guards, professional and technical employees , and all supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
6. The Charging Party, International Molders and Allied Workers Union, AFL-
CIO, has been at all times since July 24, 1963, and now is, the exclusive repre-
sentative of the employees in the aforesaid unit within the meaning of Section 9(a)
of the Act.
7. Respondent refused to bargain collectively with the representatives of his em-
ployees and accordingly engaged in an unfair labor practice within the meaning of
Section 8 ( a)(5) of the Act after receipt of Charging Party's letter dated July 24,
1963. This refusal to bargain in good faith has continued thereafter . The lack of
good-faith doubt as to the majority status of the Charging Party is established first
by not contesting majority status after receipt of the letter on July 25, or at the con-
frontation on July 29, and second by engaging in conduct in violation of Section
8 (a) (1) and (3) of the Act, as set out above.
8. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Winston Rose and Mary Louise Rose , a partnership d/b/a Ideal
Donut Shop and Local 215, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case No. 25-CA-1764. August 7, 1964
DECISION AND ORDER
On January 24, 1964, Trial Examiner George A. Downing issued
his Decision in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain -unfair labor
practices within the meaning of the Act, and recommending that they
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel and the Respondents filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
1 We find, in agreement with the Trial Examiner , that the conviction of Hall for second
degree burglary does not alone impeach his testimony A felony conviction may be intro-
duced in an effort to impeach the testimony of a witness ( Crown Corrugated Container,
Inc., 123 NLRB 318; N.L.R.B. v Baldwin Locomotive Works, 128 F. 2d 39 ( CA. 3) ;
United States v. Montgomery , 126 F . 2d 151 ( CA. 3)), but the testimony of such a wit-
ness may still be credited . In agreeing with the Trial Examiner's credibility resolution,
we note, as did the Trial Examiner , that the testimony of Hall was well corroborated in.
significant respects and by the circumstances generally.
148 NLRB No. 25.
IDEAL DONUT SHOP 237
in this case, ,and hereby adopts the findings, 2 conclusions, and recom-
mendations of the Trial Examiner, except as modified herein.
The Trial Examiner found that on August 7, 1963, Respondents
made David Hall a full and unconditional offer of reinstatement which
Hall freely and voluntarily rejected, and that Hall accepted full pay-
ment of all backpay which was due him up to that time. Accordingly,
the Trial Examiner did not recommend that Hall be offered uncon-
ditional reinstatement and be paid backpay to the date of such offer.
We find merit in the General Counsel's exceptions to this disposition.
The letter which Respondents' counsel, Donovan, wrote to Hall on
August 5, 1963, after being informed of the charge which had been
filed and the probability that a complaint would issue, was an invita-
tion to negotiate rather than an affirmative offer of reinstatement.
Thus, in the letter to Hall, Donovan stated, "With reference to the
NLRB charge on file against the above company, will you please con-
tact the writer, and I will discuss this matter with you, and the pos-
sibility of reemployment." Subsequently, only after he had learned
from Hall what Hall's expectations were concerning reinstatement
and backpay did Donovan make an offer to Hall. It was a proposal
of reinstatement without backpay. Thereafter, Donovan readily con-
sented to present to Respondents an alternative proposal of backpay
without reinstatement and did so by calling Respondent Winston Rose
on the telephone. On this alternative proposal negotiation was entered
into by Donovan, Hall, and Respondents and resulted in the com-
promise we are asked to approve as barring further relief. Manifestly,
Hall's decision to reject reinstatement and accept, instead, the pay-
ment of backpay was the result of discussion and bargaining between
him and the Respendents : in effect, a settlement agreement.' However,
reinstatement and backpay are remedies which the Board provides in
the public interest to enforce a public right. No private right to such
relief attaches to a discriminatee which he can bargain away or com-
promise, as Hall did here. If a settlement of charges was desired by
2 We agree with the Trial Examiner that the wage increase of May 17 was given to com-
ply with requirements of the Fair Labor Standards Act, and that the Respondents in-
formed employees of the reason for the raise In doing so we have concluded that the date
of the "tavern incident," from which apparently flowed Respondent Winston Rose's in-
quiry on his company's status under the Fair Labor Standards Act, was incorrectly found
to have occurred on May 17. Record evidence leads us to believe the "tavern incident"
actually took place prior to May 17 and after May 9. However, as the General Counsel
concedes in his brief to the Board that the raise was given to comply with the FLSA, the
actual fixing of the date on which Respondent Winston Rose first learned of the deficiency
is not material
S That this was viewed as a negotiation intended to reach a settlement agreement is fur-
ther established by the record. Thus, Hall testified that when he came to Donovan's office
in response to Donovan's letter, Donovan asked "what I wanted in the way of settlement,
and we.talked it over" We also note, in this regard, that the Respondents' brief refers to
the "record of negotiations with Hall" and the efforts of the Employer "to settle the case
without litigation."
i '
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents, negotiations for that purpose should have been with
the Regional Director, in accordance with well-established procedures.
We cannot sanction this bypassing of the Board's processes. In view
thereof, and having found that Hall was discriminatorily discharged
in violation of the Act, we shall order that the Respondents immedi-
ately offer Hall reinstatement to his former position or a substantially
equivalent one, without prejudice to his seniority or other rights and
privileges. In addition, we shall order full backpay for any loss of
pay he may have suffered because of Respondents' discrimination
against him, to the date of an offer of reinstatement, less his net earn-
ings and less the amount Respondents have already paid him. The
amount of backpay and interest due shall be computed according to
the Board policy set forth in F. W. Woolworth Company, 90 NLRI3.
289, and Isis Plumbing cC Heating Co., 138 NLRB 716. Payroll and
other records in possession of the Respondents are to be made available
to the Board or its agents to assist in such computation.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner with the following additions, and
orders that Respondents, Winston Rose and Mary Louise Rose, a
partnership d/b/a Ideal Donut Shop, their agents, successors, and:
assigns, shall take the action set forth in the Trial Examiner's recom-
mendation as modified herein.
1. Subparagraphs (a), (b), (c), and (d) of paragraph 2 of the
Recommended Order are redesignated as subparagraphs (d), (e),
(f), and (g) of paragraph 2 and the following new subparagraphs.
(a), (b), and (c) are added:
(a) Offer to David Hall immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority or other rights and privileges.
(b) Make whole David Hall for any loss of pay suffered by reason
of the discrimination against him as set forth above in the Board's
Decision.
(c) Notify the above-named employee if presently serving in the,
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
2. The following paragraph is added to Appendix A after the
paragraph beginning "WE WILL make whole Mary Ann Hall.. . 2':
WE WILL offer David Hall immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
11 Cf. Wia, Corporation , 140 NLRB 924; N.L.R .B. v. Threads, Inc., 308 F . 2d 1 (C.A. 4).
IDEAL DONUT SHOP 239,
seniority or other rights and privileges, and we will make him whole
for any loss of pay suffered by reason of our discrimination against
him.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 163, 73 Stat. 519), was heard before Trial Examiner
George A. Downing in Evansville, Indiana, on October 7 and 8, 1963, pursuant to
due notice The complaint, issued on August 23, 1963, by the General Counsel of
the National Labor Relations Board on a charge dated June 6, 1963, alleged in
substance that Respondents engaged in unfair labor practices proscribed by Sec-
tion 8(a)(1) and (3) of the Act by certain specified acts of interference, restraint,
and coercion and by discharging Gary Paul Doerner on May 9 and David Hall and
Mary Ann Hall on May 28, 1963, because of their union membership and activities.,
By its answer filed September 3, Respondents denied all unfair labor practices with
which it was charged. It averred further that Mary Ann Hall quit her job; that
David Hall and Doerner were discharged because of misconduct; that Doerner and
Hall were offered full reinstatement and each refused to accept; and that it has made
full payment to Hall of his backpay.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondents are copartners who are engaged in Evansville, Indiana, in the busi-
ness of making and selling donuts and other baked goods. During the year prior
to June 11, 1963, they purchased from outside the State of Indiana goods valued
in excess of $50,000 and made sales to customers outside said State in excess of
$50,000. They are therefore engaged in commerce within the meaning of Section
2(6) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Charging Union is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the union activities; the issues
Respondents, a husband and wife partnership, employ approximately 30 em-
ployees in the operation of their single donut shop in Evansville, from which they
sell at both wholesale and retail. Aside from themselves, their supervisors are
Donald Shomburg and Robert Lee Burger.
Around May 1, 1963, employee Gary Doerner began an organizing campaign and
compiled a list of some 14 employees with whom he had talked concerning the ad-
visability of joining a union. Doerner himself signed a membership card for Local
215 on May 8, and was discharged the next day. On May 16, employees David
Hall and Mary Ann Hall, his wife, held a union meeting in their home where sev-
eral employees signed cards. Both Halls were discharged on May 28.
According to testimony given by the General Counsel's witnesses, Winston Rose
engaged in various acts of interference, restraint, and coercion on May 10, 12, 14,
and 17, consisting of interrogations and threats of discharge and other reprisals con-
cerning the employees' union membership and activities, and on May 17 made a
general wage increase and promised a further increase. Antiunion acts and state-
ments were also attributed to Supervisor Shomburg in the presence of Mrs. Rose.
Respondents' witnesses testified in refutation of much of the foregoing, and the
issues in the case turn almost entirely on the credibility of the opposing witnesses.
Also in issue are the validity of offers of reinstatement made to Doerner and to
David Hall 2 and the validity of a backpay settlement which Respondents made to
Hall on August 7.
1 The General Counsel dismissed at the opening of the hearing an allegation that Re-
spondents also discharged Sam Alderson and Jack Alderson on May 28.
2 Mary Ann Hall gave notice prior to her discharge that she was quitting on May 31.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discharge of Gary Doerner; the tavern incident
Doerner testified that on May 9, Foreman Burger took him from the shop to the
office where Rose informed him he was letting Doerner go because he could not
afford higher wages and because of increases in the cost of sugar, flour, and other
products. Doerner protested that he had seniority over some 14 or 15 other people,
but Rose replied that Doerner knew more than he wanted to tell and that Doerner
might come back in a couple of weeks and Rose would see what he could do.
Rose testified that for some time before the discharge Doerner had caused trouble
among the employees in the shop by his argumentative manner and by throwing
dough around and that he had warned Doerner he would be discharged unless he
ceased such misconduct. Doerner persisted, however, and some 2 days before his
discharge had drawn a knife on employee Paul Pirtle, who had reported the matter
to Rose.3 At the time of the discharge Rose referred specifically to Doerners' tem-
per, to a fight he had had with Larry Krieg, and to his pulling a knife on Pirtle.
Burger, called by the General Counsel as a rebuttal witness, testified that Rose
told Doerner he would have to discharge him because Rose had received complaints
concerning Doerner's sloppiness and his cockiness, and that there was no room for
any sloppiness in the shop because it led to loss of profits through damaged ("crip-
pled") donuts. Burger testified that nothing was said about any price increase in
sugar and nothing about Doerner having used a knife.
As is seen, Burger's version varied substantially both from Doerner's and from
Rose's, though under all three versions Rose assigned cause of one kind or another
and made no reference to union activities. The latter subject did, however, figure
prominently in a subsequent incident, next to be adverted to, which terminated in
what can best be described as a first-class barroom brawl.
On the evening of May 17, Doerner went with one Charles Brendel to a steakhouse
or tavern near the shop and there found Rose in a condition which Doerner described
(without denial from Respondent's witnesses) as "pretty well intoxicated." The first
stage of the incident involved only Rose and Doerner, and the second occurred after
Mrs. Rose and Foreman Shomburg arrived. Also present were Charlie Seibert,
bartender, and Pete Moseley, the proprietor. Omitting as far as possible the color-
ful but unedifying and immaterial details, the testimony may be briefly summarized
as follows:
Doerner testified that after some preliminary conversation, Rose brought up the
subject of the Union and asked Doerner why he wanted the shop organized. Doerner
replied that it was for more security. Rose continued that if it was security that
Doerner wanted, he would give Doerner his old job back and higher wages if he
would forget about the Union. Doerner rejected the offer, stating that Rose was
not going to buy him off, and thereupon Rose began cursing and stated he was going
to whip Doerner.
Some time later, after Mrs. Rose and Foreman Shomburg came in, Rose apologized
to Doerner and began talking in a friendly manner again. The subject of the Union
came up again, however, and Rose stated, among other things, that he could buy
off any person he wanted to, that he would close the place up before he would "go
union," and that he knew who started the Union. When Doerner asked him how
he knew, Rose replied that someone from the union hall had called him and told
him. Doerner and Mrs. Rose also became involved in a bitter altercation which
involved in part shouting, screaming, and purse swinging , and which finally ended
outside the tavern with both the Roses falling to the ground.
Brendel 's testimony was in general corroborative of Doerner's, though he testified
he did not hear all the conversations between Doerner and Rose. Brendel testified
in part that Rose stated he did not have anything against the Union, but that he
could not "go union" at the time because he would be put out of business, and
that if Doerner would "go along with him" he would take care of Doerner but could
not do it at that time. Rose also stated he knew who started the Union.
Rose testified that Doerner began the tavern conversation by stating he intended
to break Rose and close the Company up and that he had gone to the Wage-Hour
office and had learned that Rose was not complying with that act. Rose denied stating
that Doerner had started the Union, denied informing Doerner that he would take
care of Doerner if Doerner would go along with him, and denied the other state-
ments which Doerner attributed to him about giving Doerner his job back if Doerner
would forget the Union. Rose testified that Doerner said nothing about the Union
except to say that he had been to the Union, that they had advised him to go to the
s Pirtle confirmed that testimony.
IDEAL DONUT SHOP 241
Wage-Hour office, and that he had done so. However, Rose's affidavit given to the
Board contained the following version:
[Doerner] said he was going to take me to the Labor Board. I asked him
how he knew all this; that is, the Labor Board. He said he had been to the
union and they had told him about the Labor Board. He also said he was
going to turn me in to the Wage and Hour Division.
That this was the first knowledge I had of the union activities of any of my
employees, when Doerner told me he had been to the union.
Foreman Shomburg, who came in between the two stages of the incident, testified
he did not hear Rose mention the Union or discuss it with Doerner and that the
main thing he recalled was that Doerner told Rose he was going to break him
through the wage-hour law.
Interference, restraint, and coercion; the discharges of David Hall
and Mary Ann Hall
David Hall and Mary Ann Hall were a young married couple who had been in
Respondent's employ only a short time, David since January 1963, and Mary Ann
since March. They participated with Doerner in discussions of the Union in the
first week of May and gave him their names to be listed with those who were in
favor of the Union. They also held a union meeting in their home on May 16,
at which they and other employees signed union authorization cards.
David Hall testified that on the afternoon of May 10, Rose held a meeting with
a number of employees at the shop during which Rose stated, among other things,
that he had heard the rumors about the Union, that he would not have a union in
his shop under any circumstances, and that if employees were involved in the
Union they would be dismissed immediately. Rose also stated that he was paying
as much as he could, did not intend to pay any more, and if the employees weren't
satisfied with what they were making, they could go elsewhere to work. Rose added
that before he would let a union come into the shop, he would either close it down
or operate at retail only, stopping all wholesale work, and that as he and some of
the older employees could run that by themselves, a lot of employees would be out
of work.
Mary Ann's testimony was substantially to the same effect except that she added
that Rose stated he had fired one employee for being interested in the Union and
that there would be others if they continued to have anything to do with the Union.
Brenda Kammerer testified to a somewhat similar occurrence around the same
date.4 She was called into the office by the Roses and was told that they could not
afford to pay union wages and that if the Union got in they might either have to
shut down or to sell only at retail. Mrs. Rose suggested that Kammerer look ' for
another job, because she did not want anyone to be out of a job if the Roses had
to shut down.
David Hall testified that on Sunday, May 12 (a workday), Rose called him into
the shop alone, referred to rumors that Hall was talking with employees about the
Union, and stated that he would not stand for that and that Hall would either dis-
continue his interest in -the Union or he would be fired, and his wife also. Rose
continued that he absolutely would not have a union in his shop under any circum-
stances; that one employee had been fired for having some association with the
Union; and that unless the union talk was stopped, there would be others to follow.
Rose asked Hall who was involved in the union matter, and when Hall replied that
was none of Rose 's business, Rose stated there were others in the shop who would
tell him. -
Hall testified further that on May 14, Rose called him into the 'office again and
told Hall he would have one more chance to forget about the Union and unless
Hall complied, both he and his wife would be fired. Rose also warned Hall that
he was not to be anywhere near a union hall or to, have anything to do with a union
official and was not to discuss the Union with the employees.
Hall also testified that on May 17, Rose called him in again and told him he was
getting a 15-cent-an -hour raise due to a raise in the price of donuts and to "outside
pressures," and that if the price of donuts stayed on a satisfactory basis, the em-
ployees might get another raise in the fall. Hall denied that Rose referred to the
Fair Labor Standards Act or to the wage-hour law in connection with those raises.
4 Though Kammerer fixed the date as May 17, her other testimony concerning the grant-
ing of a raise (a week later), referred to below, indicated that the present incident occurred
around May 10. .
760-577-65-vol. 148-17
242 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
Mary Ann- Hall testified to a similar conversation with Rose on May 17, as did
Brenda Kammerer, though Kammerer testified that Rose showed her a pamphlet
relating to the increases and told her he had not known about it before and was
giving the increase accordingly.
On May 28, the Halls were called into the office, along with Sam Alderson and
Jack Alderson, and were there informed by Foreman Shomburg in Mrs. Rose's
presence that they were suspended. David Hall testified that Shomburg said they
were suspended until they could prove beyond doubt that they were not for the
Union, and that the only way they could do that was to bring in their union cards
and let him tear them up or else to bring in a sworn statement from the union
officials that they were not in the Union. Shomburg inquired if Rose was inter-
ested in finding out how he discovered they were in the Union and stated that a
union official by the name of Glenn Aud had told him so. Mary Ann's testimony
was to similar effect.
The Halls also testified that following the foregoing conversation, an altercation
developed between Sam Alderson and Shomburg when Alderson protested that
Shomburg should not accept someone else's word that Alderson was in the Union
and that Shomburg' threatened to kick Alderson out of the shop. Hall testified
further that he applied to Rose in the first week of June, asking when he would
be put back' to work, and that Rose stated that he was not ever going to put Hall
back to work.
Turning now to Respondents' evidence Rose denied that he made any of the
statements concerning the Union which the Halls attributed to him and denied
threatening to close the plant or to fire the Halls because of the Union. Admitting
the meeting with employees on May 10, Rose testified that he warned them to be
more careful and cautious in their work and to hold down the "cripples" because
the price of sugar and. flour was going up and the cost of donuts was increasing
Employees Paul Pirtle and Jack Alderson testified to substantially similar effect.
Rose admitted that he told the employees that if costs continued to increase, he
might not be able to sell at wholesale any longer and might have to sell only at re-
tail, in which case some of the employees might have to look-for other jobs. That
was also the gist of his statement to Brenda Kammerer, Rose testified, denying that
he made any reference to the Union or to union wages.
Admitting the granting of, the wage increase on May 17 and the promise of a
further increase in the fall, Rose explained that following Doerner's references to
the Wage Hour Division during the tavern incident, he consulted the Evansville
office of that division and learned that his minimum wage rate ($1) was below that
required by the Fair Labor Standards Act ($1.15) and that on September 3 a fur-
ther raise would be required under that Act (to $1 25). Rose was advised to put
the increase' to $1.15 into effect the following workweek and to inform the em-
ployees that he was doing so.- Rose testified that incompliance with that-advice
he informed the employees individually in paying them off on May. 17 that they
.would receive an increase under'the provisions of the Wage-Hour law and that he
referred to a pamphlet or record book which had been furnished him and which he
had present at the time. Rose admitted that he may have missed telling one or two
employees that the increases were due to the Wage-Hour law.
Respondent's defense to the discharge of the Halls rested mainly on the testimony
of Rose himself, who made the decision- to terminate them. Rose testified that he
had received complaints from Shomburg for 2 or 3 months that Hall was causing
trouble in the shop by warning other employees to stay away from his wife and
that a day or so before the discharge Allen Krieg had informed him directly of such
an, incident 5 Rose testified, however, that he made the decision because sugar and
flour prices had gone up, because he could not get an increase in donut prices which
he expected, and because he could not continue making wholesale sales because of
the price of sugar and•.flour. Accordingly, while he was at home on the night of
May 28,8 he called his wife,on the telephone, telling her that-they would have to
cut down on their help; that since Mary Ann Hall was quitting on Friday anyway
S Krieg and Gary Denton testified that Hall warned them not to talk to his wife and
threatened to whip them unless they stopped talking to her, and Paul Pirtle testified that
Hall made a similar threat to delivery boys of a -customer. • Other witnesses (Cornelius
Duncan, Jr., Martha Duncan, 'Sherle Ann Southwell, Paul -Pirtle, and Jack Alderson)
testified to the fact that Hall spent an abnormal amount of time away from his work talk-
Ing to his wife.
9 Rose testified he was at home because of a short circuit in his furnace. His affidavit to
the Board stated that he was at home "where we store some supplies In our garage."
IDEAL DONUT SHOP 243
and since David Hall was giving them a lot of trouble, he wanted to let both of
them go (intending the action to be a discharge), and would decide later whether
it would be necessary to lay off anyone else. Rose testified that his wife in turn
passed the instructions on to Shomburg, who actually made the discharges, and
that he (Rose) had nothing to do with it.
Curiously, however, it developed upon further examination that Rose himself
arrived at the office within half an hour after he telephoned his wife and while
Shomburg still had the Halls and the Aldersons in the office. Rose's affidavit given
during the Board's investigation recounted his own participation in the incident as
follows:
When I came in, Shomburg may already have told them we were letting them
go, but I told them we were letting them go because the other employees did
not like them and they could not get along with the other employees. I told
them it was a matter of letting them go or possibly losing some other em-
ployees. I then left the office, leaving the Aldersons and the Halls with
Shomburg. I came back into the office some time later, and remarked to
Shomburg that he had better tell the Aldersons they were not being laid off,
because they might have got that idea.
Though Rose denied as a witness that he was in the office while the employees were
there with Shomburg and denied that he himself made any statement to the em-
ployees, I credit his prior contradictory affidavit, considering it as an admission
against interest by a party to the proceeding.
Shomburg testified that it was Rose who gave him his instructions; that without
specifying the number, Rose directed him to reduce the work force; and that
though Rose himself selected the Halls, he (Shomburg) took it upon himself to
include the Aldersons. As for the actual incident, Shomburg denied the testimony
of the Halls concerning his alleged references to the union activities of the em-
ployees and as to how they could prove they were not in the Union. He testified
that he told the employees (in Mrs. Rose's presence ) he had been instructed to
lay some people off to reduce the work force because of the increase in the price
of ingredients, especially sugar, that the shop had been forced to raise the price
of donuts, which in turn resulted in a loss of orders, but that when orders picked
up again , as they usually did in the fall, the employees would be called back. David
Hall suggested he was being fired because of union activities, but Shomburg denied
it and informed Hall it was because of his poor work record. Sam Alderson ex-
pressed a threat to "get" some person before he left the shop, but Shomburg warned
him not to cause any trouble.
Jack Alderson's testimony was in general corroborative of Shomburg's, but he
admitted that he left the office before the altercation between Sam Alderson and
Shomburg and the argument between Hall and Shomburg.
Subsequent events added two curious postscripts which are of material assistance
in resolving the credibility issues surrounding the discharges. Though under
Rose's testimony and his affidavit , he informed Shomburg that the Aldersons should
not have been laid off and that Shomburg should call them back, Shomburg took
no action to comply with that instruction until some 2 to 3 days later. More
significantly, their recall followed two visits by the Aldersons on May 29 to the
Union's office, where, according to the credited testimony of Ruth Wellborn, an
office employee, and Business Agent Glenn Wilkerson, they sought to procure a
statement that they did not belong to the Union, explaining that Rose had informed
them that they could have their jobs back if they procured such a statement. Sam
Alderson, who acted as spokesman, stated that as he . was going into the service,
he did not care about himself.
Wilkerson testified to a similar application to him by Larry Krieg on the same
date, and Wellborn testified that Paul Pirtle succeeded in obtaining possession of
his own card by a ruse and then refused to return it, stating that he wanted to with-
draw from the Union.
Pirtle and Rose both admitted that Pirtle later produced his card before Rose
and tore it up in front of him.
4 Jack Alderson ( Respondents ' witness) at first denied going to the union hall , but when
urgently pressed , admitted reluctantly that he had gone there, but then professed not to
recall what he did. His reluctance and evasiveness concerning those visits have con-
vinced me that his testimony generally is of no probative weight.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Credibility resolutions; concluding findings
In resolving the credibility issues between the General Counsel's witnesses and
those of Respondents, it is to be noted that Respondent's actions as put in issue
concerned a course of conduct which began coincidentally with the organizational
activities among the employees and which included ultimately the dismissal of the
three employees who were leading those activities. It is also to be noted that
though a number of separate incidents were involved, with different witnesses, the
testimony offered by the General Counsel attributed to Rose a series of similar
threats and statements all directed at ruthless suppression of the organizational
efforts. The circumstances thus afforded a large measure of mutual though indirect
corroboration, aside from the fact that there was direct corroboration as to some of
the statements and incidents.
Conflicts concerning the tavern incident, for example, can be resolved on the
basis of the corroboration of Doerner by Brendel, a nonemployee and apparently
a disinterested witness, on the limited corroboration of Rose furnished by Shomburg's
testimony, and by Respondent's failure to call either the bartender or the proprietor 8
despite undenied testimony that the proprietor offered to "back up" Rose if any
trouble arose. But even assuming that any question remained, all doubt would be
removed by the testimony of the Halls and Kammerer concerning Rose's threats
made on May 10 and his reference then to having discharged one employee because
of union activities. I therefore credit the testimony of Doerner and Brendel over
that of Rose and Shomburg, and I find that Rose made the statements during the
tavern incident which the former attributed to him.
As for the remaining incidents, David Hall's testimony received direct corrobora-
tion in large part from Mary Ann Hall and indirect corroboration in part from
Kammerer. Furthermore, when the discharge incident is considered, the curious,
implausible, and inconsistent aspects of Respondent's defenses and the curious after-
math of the discharges all tend to support and to confirm the testimony of the Halls
as to the statements which Shomburg made in Mrs. Rose's presence .9 The more
obvious oddities and discrepancies include the following:
The alleged economic basis which Rose assigned as justification for the discharges
plainly required no such precipitous action as he ordered; and Rose advanced no
explanation why he could not have waited some 30 minutes and "handled the matter
himself, nor why Mrs. Rose could not have handled it, nor why Mrs. Rose permitted
Shomburg to go beyond Rose's instructions. Furthermore, Rose's reliance on
economic causes was directly at odds with his testimony that replacements were
hired for Doerner and Hall, respectively, on May 17 and June 7.
Shomburg insisted it was Rose (not Mrs. Rose) who gave him his instructions,
and that though they related only to the Halls, he took it upon himself (though in
Mrs. Rose's presence) to include the Aldersons. But Rose insisted he gave his in-
structions to Mrs. Rose and that the action was to be a discharge, not a suspension
as Shomburg claimed.
Rose's claim that he had nothing to do with the discharge incident was dis-
proved by his prior affidavit which established that Rose reached the office before
the incident ended and that he himself thereupon took part in it, though without cor-
recting Shomburg's misapprehensions as to his instructions in relation to the Alder-
sons or as to the nature of the termination which Rose was ordering. Furthermore,
the reasons which he then assigned, according to his affidavit, were plainly incon-
sistent with those which he assigned during the telephone call to Mrs. Rose.
Finally, Shomburg made no attempt to comply with,Rose's directions to inform
the Aldersons the layoff did not apply to them until after they sought to procure
from the Union a statement that they were not union members.
For the foregoing reasons I reject the testimony of Rose and Shomburg, and
I credit the testimony of the Halls 10 and Kammerer, which, as seen received a sub-
8 Mrs. Rose's absence was explained by the representation of counsel that she was in
Arizona because of the illness of a relative. • •
8I give no weight to Jack Alderson's partial corroboration of Shomburg in,view of the
fact that he was not present during all of the incident and in view of the fact'that I have
elsewhere found Alderson's testimony generally to be without probative weight See foot-
note 7„ supra.
io `Vith a single exception, later noted, concerning the wage increase, on which Kam-
merer's testimony substantially corroborated Rose.
IDEAL DONUT SHOP 245
stantial measure of confirmation from the anomalous aspects of Respondents' at-
tempted refutation.
I have thus credited the testimony of David Hall, despite Respondents ' claims of
impeachment because of Hall's admitted conviction at age 17 of second degree
burglary, for which he served 27 months in prison . Controlling Board law is found
in Crown Corrugated Container, Inc., 123 NLRB 318, where the Board thus stated
the rule:
That the credibility of a witness under the rules of evidence applicable in the
district courts of the United States may be impeached by showing he had been
convicted of crimes is well established . The Board has long recognized this
rule. In N.L .R.B. v. Baldwin Locomotive Works, 128 F. 2d 39 , (C.A. 3), the
court held that counsel may show convictions for felonies or misdemeanors
amounting to crimen falsi in accordance with a well recognized rule of evidence.
Citing United States v. Montgomery , 126 F. 2d 151, (C.A. 3). In American
Laundry Machinery Company, 45 NLRB 355, and American Aircraft Manu-
facturing Company, 70 NLRB 1132 , the Board has applied this rule.
I find that Hall's offense was not of the nature involving crimen falsi within the
meaning of the foregoing cases and that his conviction , therefore , does not alone
constitute impeachment of his testimony . Aside from that , Hall's testimony was
corroborated in significant respects by other witnesses and by the circumstances
generally, as found above.
Based upon my foregoing credibility resolutions , I conclude and find that by
interrogating employees concerning their union membership and activities and
desires and those of other employees; by threatening employees with discharge
because of their union membership and activities; by warning employees that they
would close the shop or would discontinue their wholesale business if the Union
came in ; by informing employees that they were keeping the employees' union
activities under surveillance and were being informed which of them were engaged
in or leading such activities ; by offering reinstatement to laid-off empioyees if they
would renounce their union sympathies and desires ; and by soliciting employees to
withdraw from membership in the Union and withdraw their authorization cards
previously signed, Respondents interfered with, restrained , and coerced their em-
ployees in the exercise of rights guaranteed by Section 7 of the Act.
The General Counsel did not, however, establish by a preponderance of the
evidence the allegation of his complaint that Respondents granted its employees a
wage increase on May 17 "if they refrain from becoming or remaining members of
the Union or giving them any assistance or support to it or in order to induce them
to do so." What the evidence established was that when Respondents learned that
their minimum wage rate was less than that required by the Fair Labor Standard
Act, they raised their rate to comply with that Act. I credit Rose 's testimony (which
received substantial corroboration from Brenda Kammerer ) that in informing the
employees of the raise , he exhibited to them a pamphlet furnished to him by the
Wage and Hour Division and told them the raise was being given under the Wage-
Hour law and that they would be due a further one under that law on September 3,
during the fall. Cf. Southern Transport , Inc., 145 NLRB 615.
As the General Counsel concedes that the rates as granted and promised con-
formed with those required by the Fair Labor Standards Act, I conclude and find
from Rose's credited testimony that his action was taken to comply with that Act
and not for the purpose of inducing the employees to refrain from their organiza-
tional activities . Cf. N.L.R.B. v. Exchange Parts Company , 375 U.S. 405.
Turning now to the allegations of discrimination , the credited testimony showed
explicitly that the discharges were made because of the union activities and with the
express purpose of inhibiting further participation by the employees . There is
thus no need to review further the evidence concerning the alleged causes which
Respondent assigned ( though I accept the testimony of Respondents' witnesses con-
cerning the acts of misconduct by Doerner and Hall ), for the evidence established
that Respondents' actions were not in fact motivated by any of said causes. It is
now well established that a justifiable ground for discharge is no defense if it is
a pretext and not a moving cause. N.L .R.B. v. Solo Cup Company , 237 F. 2d
521, 525 ( C A. 8); Sunshine Biscuit Inc. v. N.L.R.B., 274 F. 2d 738, 742 (C.A. 7).
"The controlling and ultimate fact is , what was the true reason back of his dis-
charge." Victor Manufacturing and Casket Company v . N.L.R B., 174 F. 2d 867,
868 (C .A. 7); and see N.L.R B. v. C. & J. Camp , Inc., et al., Kibler-Camp Phosphite
Enterprise, 216 F. 2d 113, 115 (C.A. 5), enfg. 107 NLRB 1068.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here the true reasons were not only readily apparent from the statements made
by Rose and Shomburg, but the anomalies and discrepancies existing in Respondents'
defenses to the Hall discharges themselves lent further confirmation. For the giv-
ing of implausible, inconsistent, or contradictory explanations of a discharge may
properly be considered in determining the real motive, and is a circumstance indica-
tive of antiunion motivation. N.L.R.B. v. Condenser Corporation of America,
128 F. 2d 67, 75 (C.A. 3); N.L.R.B. v. International Furniture Company, 199 F.
2d 648, 650 (C.A. 5); N.L.R.B. v. C. W. Radcliffe, et al., d/bla Homedale Tractor &
Equipment Co., 211 F. 2d-309, 314 (C.A. 9), cert. denied 348 U.S. 833.
I therefore conclude and find that Respondents discharged Gary Doerner, David
Hall, and Mary Ann Hall to discourage membership in the Union.
IV. THE REMEDY
Having found that Respondents engaged in certain unfair labor practices, I shall
recommend that they cease and desist therefrom and that they take certain af-
firmative action which is conventionally ordered in such cases, as provided in the
Recommended Order below, which I find necessary to remedy and to remove the
effects of the unfair labor practices and to effectuate the policies of the Act. For
reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and
cases there cited, I shall recommend a broad cease-and-desist order.
I shall not, however, recommend that Respondents make the usual offers of rein-
statement to Gary Doerner, Mary Ann Hall, and David Hall for the following
reasons:
Mary Ann Hall gave notice before her discharge that she was quitting on Friday
of that week, i.e., May 31. Backpay will be due in her case only to the latter date.
Gary Doerner admitted that he received on August 10, 1963, through Respondents'
counsel, a full and immediate offer of reinstatement to his former position with all
of the rights, seniority, and privileges that he had at his termination, and that he
rejected the offer. Backpay in his case will therefore cease on August 10, 1963.
As to David Hall, Respondents offered in evidence Hall's written statement of
August 6, his affidavit 'of August 7, and his signed acknowledgment of the correct-
ness of the contents of Donovan's letter of August 6, all of which reflected that
Hall refused Respondents' offer of full reinstatement to his former job and that he
accepted full settlement ($421.92) of his backpay. Despite Hall's written acknowl-
edgments to the contrary, the General Counsel contests the validity of the offer of
reinstatement and of the settlement on the basis of Hall's testimony that the offer
of reinstatement was in fact conditionally made, i.e., that Donovan informed Hall
he could either accept backpay without reinstatement or reinstatement without back-
pay. Refuting that claim, Respondents offered the testimony of Billy McKinley
and Marian Taylor, legal secretaries in Donovan's office, who testified to the cir-
cumstances under which the various documents were dictated (with Hall joining
in and making suggestions and corrections), which Hall signed, and to his free and
voluntary execution of them. Indeed, Donovan was not present at the time Hall
signed his affidavit and accepted the backpay settlement, and there was no indica-
tion that Donovan took unfair advantage of Hall. Crediting the testimony of
Taylor and McKinley, I find that Respondents made to Hall on August 7 a full
and unconditional offer of reinstatement, that Hall freely and voluntarily rejected
it, and that Hall accepted on that date full payment of all backpay which was
due him up to that date (as conceded in the General Counsel's brief).
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. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act, Respondents engaged in unfair labor
practices proscribed by Section 8(a)(1) of the Act.
2. By discharging Gary Doerner on May 9, and David Hall and Mary Ann Hall
on May 28, Respondents engaged in discrimination to discourage membership in
the Union, thereby engaging in unfair labor practices proscribed by Section 8(a) (3)
and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
IDEAL DONUT SHOP 247
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record,
and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondents,
Winston Rose and Mary Louise Rose, a partnership d/b/a Ideal Donut Shop,
their officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Interrogating coercively employees concerning their union membership,
activities, and desires and concerning those of other employees.
(b) Informing employees that they are keeping the employees' union activities
under surveillance and are being informed which of them are engaged in such
activities.
(c) Warning and threatening employees with discharge or other reprisals if they
continue their adherence to the Union and with closing the shop or discontinuing
their wholesale business if the Union should come in.
(d) Offering reinstatement of laid-off employees on condition that they renounce
their union sympathies and desires.
(e) Soliciting employees to withdraw from membership in the Union and to
withdraw their authorization cards previously signed.
(f) Discouraging membership in Local 215, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organi-
zation of their employees, by discharging or failing to reinstate them or in any other
manner discriminating in regard to hire or tenure of employment or any term or
condition of employment.
(g) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of their right to self-organization, to form, join, or assist
said Local 215, or any other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act: -
(a) Make whole Mary Ann Hall and Gary Doerner for any loss of pay which
they may have suffered by payment to each of them of a sum of money equal to
that which he would normally have earned from the date of the discrimination
against him as herein found to May 31, in the case of Mary Ann Hall, and to
August 10, in the case of Gary Doerner, less their respective net earnings during
said periods. (Crossett Lumber Company, 8 NLRB 440), said backpay to be com-
puted on a quarterly basis in the manner established by the Board in F. W. Wool-
worth Company, 90 NLRB 289, together with interest thereon at the rate of 6 per-
cent per annum. Isis Plumbing & Heating Co., 138 NLRB 716.
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due under these recommendations.
(c) Post in their shop and offices at Evansville, Indiana, copies of the attached
notice marked "Appendix A." ii Copies of said notice, to be furnished by the
Regional Director for Region 25, shall, after being duly signed by Respondents'
representative, be posted by Respondents immediately upon receipt thereof and
maintained by them for 60 consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondents to insure that said notices are not altered, de-
faced, or covered by any other material.
In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and
Order."
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 25, in writing , within 20 days from
the date of the receipt of this Decision , what steps Respondents have taken to
comply herewith.12
is In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , we hereby notify you that:
WE WILL NOT interrogate coercively our employees concerning their union
membership , activities , or desires or concerning those of other employees.
WE WILL NOT inform employees that we are keeping their union activities
under surveillance or are being informed which of them are engaged in such
activities.
WE WILL NOT warn or threaten our employees with discharge or other re-
prisals if they continue their adherence to the Union or with closing the shop
or discontinuing our wholesale business if the Union should come in.
WE WILL NOT offer reinstatement to laid-off employees on condition that
they renounce their union sympathies and desires.
WE WILL NOT solicit employees to withdraw from membership in the Union
or to withdraw their authorization cards previously signed.
WE WILL NOT discourage membership in Local 215 , International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, or
any other labor organization of our employees , by discharging or failing to re-
instate them, or in any other manner discriminate in regard to hire or tenure
of employment or any term or condition of employment.
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 , join, or
assist said Local 215 , or any other labor organization , to bargain collectively
through representatives of their own choosing , or to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such activities except to the extent
that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized by Section
8(a)(3) of the Act.
WE WILL make whole Mary Ann Hall and Gary Doerner in the manner
provided in the Trial Examiner 's Decision for any loss of pay which they may
have suffered as a result of our discrimination against them.
All our employees are free to become , remain , or to refrain from becoming or
remaining, members of the above -named or any other labor organization.
WINSTON ROSE AND MARY LOUISE ROSE, A
PARTNERSHIP D/B/A IDEAL DONUT SHOP,
Employers.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948 , as amended , after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis , Indiana, Telephone No. Melrose
3-8921 , if they have any question concerning this notice or compliance with its
provisions.