Lamar Creamery Co.

National Labor Relations Board - Board Decisions

Apr 25, 1956

115 N.L.R.B. 1113 (N.L.R.B. 1956)

LAMAR CREAMERY COMPANY 1113
Employer. We see no merit in this contention. The Employer's.
lithographic employees have been covered by multiemployer contracts
since the introduction of the lithographic process at the Employer's
plant about 8 or 9 years ago. Moreover, it appears that other Associa-
tion members have lithographic employees who have been bargained
for as part of the multiemployer unit. We cannot therefore agree
that the multiemployer pattern of bargaining for lithographic em-
ployees of the employers in the Association is limited in scope to the
Employer's lithographic employees and not controlling herein. Nor
do we believe that the fact that other employers in the Peoria area
bargain for their lithographic employees on a single-employer basis
and not through the Association, in any way affects the weight to be
given to the history of multiemployer bargaining for such employees
employed by members of the Association.
The Petitioner further contends that, in any event, the lithographic
operations of other employers in the multiemployer unit are so small
in comparison with those of the Employer, that a unit confined to the
Employer's lithographic employees is in fact coextensive with the
existing unit. The Petitioner did not, however, expressly request an
alternative unit coextensive with the multiemployer unit. Further-
more, even if the above contention be construed as such an alternative
request, we may not pass upon the merits of this request, as we do
not have the other employers of the broader unit before us to enable
us to exercise our jurisdiction over their operations.
In view of the foregoing, especially the substantial bargaining his-
tory for the lithographic production employees of the Employer and
other Association members within a multiemployer unit, we find that
the proposed unit of such employees confined to the Employer's plant
is inappropriate for the purposes of collective bargaining.4 Accord-
ingly, the motion to dismiss the petition is hereby granted.'
[The Board dismissed the petition.]
4 Jahn-Tyler Printing and Publsshing Company , 112 NLRB 167 , and cases cited therein.
5In view of our dismissal of the petition , we do not pass on other issues raised by the
parties.
Lamar Creamery Company and United Steelworkers of America,
AFL-CIO . Cce No. 16-CA-787. April fd5,1956
DECISION AND ORDER
On July 29, 1955, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in this case, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take certain affirmative
115 NLRB No. 181.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.'
On December 20, 1955, the Board issued an order reopening the
record to allow additional cross-examination of Owen, the complain
ing witness, as to matters which the Board deemed relevant to the
credibility issues in the case.
Pursuant to this order, a further hearing, limited to the cross-
examination of Owen, as aforesaid, was held before Trial Examiner
Winkler. On January 27,1956, the Trial Examiner issued his Supple-
mental Intermediate Report, a copy of which is attached hereto, find-
ing that the supplemental hearing afforded no basis for amending the
original Intermediate Report. No exceptions to the Supplemental
Intermediate Report have been filed.
The Board has reviewed the rulings of the Trial Examiner made at
the hearings and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Reports, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)'
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Lamar Creamery Company, Paris,
Texas, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discharging, refusing to hire, or otherwise discriminating
against an employee because he has given testimony under the Act or
because of union membership or other union activities.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, to file charges, or give testi-
mony under the Act, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to re-
frain from any or all such activities except as such rights may be
affected by a valid agreement requiring membership in a labor organi-
zation as a condition of employment in accordance with Section 8
(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
1 As the record , exceptions , and brief adequately present the positions of the parties,
we deny the Respondent's request for oral argument.
LAMAR CREAMERY COMPANY 1115
(a) Offer immediate and full employment as a route man to Elmer
Clyde Owen or to a substantially equivalent position without prejudice
to his seniority or other rights and privileges as of September 17, 1954,
and make Owen whole in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(b) Preserve and make available to the Board or its agents upon
request, for, examination and copying, all payroll records, social-
security payment records, ^ timecards, personnel records and reports,
and all other records necessary to analyze the amount of back pay
due and the right of employment under the terms of this Order.
(c) Post at its plant at Paris, Texas, copies of the notice attached
to the Intermediate Report as an Appendix.2 Copies of said notice,
to be furnished by the Regional Director for the Sixteenth Region,
shall, after being duly signed by the Respondent, be posted immedi-
ately upon receipt thereof and be maintained by it for sixty (60)
consecutive days thereafter in conspicuous places including all places
where notices to employees are customarily posted. The Respondent
shall take reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Notify the aforesaid Regional Director in writing, within ten
(10) days from the date of this Order, what steps the Respondent
has taken to comply herewith.
2 In the caption of the notice the words "The Recommendations of a Trial Examiner"
shall be changed to "A Decision and Order ." In the event that this Order is enforced
by a decree of a United States Court of Appeals , there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States
Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by United Steelworkers of America, CIO, a labor organization
herein called the Union, the General Counsel of the National Labor Relations Board
issued a complaint and amendments to complaint respectively dated May 6 and
May 9 , 1955, against Lamar Creamery Company, herein called Respondent , alleg-
ing that Respondent has engaged in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1), (3 ), and (4) and Section 2 (6) and (7) of the
Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies
of the complaint and the charge were duly served upon Respondent , in response to
which Respondent filed an answer denying the unfair labor practices alleged.
Pursuant to notice, a hearing was held on May 31 and June 1, 1955, at Paris,
Texas, before a duly designated Trial Examiner.' All parties were represented at
the hearing and were given full opportunity to examine and cross -examine witnesses,
and to introduce evidence bearing on the issues; they were also given opportunity
for oral argument at the close of the hearing and to file briefs as well .2 Motions of
1 Line 9. Transcript page 315, is corrected to read "Yes, sir" instead of "No, sir" ; and
the word "publication " on line 25, Transcript page 142, is corrected to read "fabrication."
2 In its brief to the Trial Examiner, Respondent renews its objection to rulings at the
hearing with respect to the failure of a Board field examiner , White, to produce and to
testify concerning a document in the General Counsel 's file. I do not consider it appro-
priate to discuss my rulings on the matter in this report. To preserve the record, how-
ever, I shall, and hereby do, receive in evidence the subpena in question (Respondent's
Exhibit No. 2 for identification) as Respondent 's Exhibit No. 4. My rulings in this con-
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
the Respondent to dismiss the complaint are disposed of in accordance with the
following findings of fact and conclusions of law.
Upon the record in the case, and, upon observation of the demeanor of witnesses,
I.make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Texas corporation with its principal office and place of business
at Paris , Texas; it is engaged in processing and distributing milk and milk products.
During the 12-month period immediately preceding the issuance of the instant com-
plaint, Respondent made out-of-State purchases and sales respectively exceeding a
value of $100,000. I find that Respondent is engaged in commerce within the mean-
ing of the Act. Jonesboro Grain Drying Coop., 110 NLRB 481.
II. THE UNFAIR LABOR PRACTICES
The issue in this case is whether Respondent discriminatorily denied employment
to Elmer Clyde Owen on or about September 17, 1954. Tommy Jackson is a route
supervisor for Respondent; he directs the work of milk deliverymen and has authority,
which he exercises, to make effective recommendations as to hiring and firing of
such employees subject to the approval of O. B. White, Respondent's general man-
ager and vice president; Jackson also substitutes for route men under him who are
absent from work; Jackson is salaried, whereas route men are paid on a daily basis.
In September 1954 Jackson was himself working the so-called Cooper route because
of a vacancy created when Herbert Brewer, whose route it had been, became ill
and was institutionalized. This Cooper route originates in Cooper, Texas, located
about 30 miles from Paris, and includes some small neighboring towns as well; the
route consists of storekeepers and other business establishments and is within Re-
spondent's wholesale division; 'approximately half the route's customers are located
in Cooper, Texas, a town of approximately 3,000 population. Early in September,
Jackson inquired of the merchants on the Cooper route whether they knew some-
one who would be interested in taking over the route, and some of the merchants
in turn advised Owen of the vacancy. Owen applied for the position and was denied
employment after a 1-day trial period in circumstances described here later.
Respondent 's customary procedure in hiring route men is to have an individual
file a written application and, after a satisfactory physical examination, have him
work together with a route supervisor or another route man for a so-called trial or
training period. This period may vary from 1 day to 2 weeks, depending on cir-
cumstances. If the individual is found qualified and otherwise satisfactory he be-
comes a permanent employee upon the posting of a bond and the execution of an
individual employment contract.
Owen is 30 years of age, a clean-cut individual from his appearance as a wit-
ness,3 owns his own home and has lived in Cooper since 1951 or 1952 and has lived
within 3 to 8 miles of Cooper the greater part of his life. Owen knows practically
everyone in Cooper and he knows Respondent's customers there; he did not know
Respondent's customers in the neighboring towns on the Cooper route. Through his
high school years Owen assisted his father in farming, and in 1942 he obtained
industrial employment in a Dallas garment factory where he remained until he
entered the Army. Upon his return from the Army in December 1945, Owen re-
turned to farming for about a year, after which he obtained other industrial employ-
ment in Dallas. Owen took over his father's farm operations upon his father's
death in 1947 and, except for a few months' employment as a riveter in Fort Worth
and seasonal work at a cotton oil mill in Cooper he continued in farming until
February 1953. Owen was employed as a welder at Babcock & Wilcox Company
in Paris, Texas, from April 1953 until a layoff in January 1954; he then obtained
employment in Cooper as a mechanic with Delta Farm Store from March until July
1954: his present employment began in December 1954 as a mechanic for a machine
building concern; since February 1953 Owen and his wife have also been operating
a farm, Owen himself engaging in such operations to the extent permitted by his
nection were predicated on my understanding of the Board's Rules and Regulations and
such Board and court decisions as Standard Coil Products, Inc.. 99 NLRB 899; Inter-
national Broadcasting Corporation (KWKH), 102 NLRB 1434, 1435-1437; N. L. R. B. v.
Jamestown Sterling Corp , 211 F 2d 725, 726 (C A. 2)
31 mention Owen's physical appearance only because route men come into direct con-
tact with Respondent' s customers.
El
LAMAR CREAMERY COMPANY 1117
other employment. None of Owen's work experience involved milk or milk prod-
ucts and he has never been employed as a salesman.
Following the January 1954 layoff of Owen and other employees by Babcock &
Wilcox Company, charges were filed and the Board's General Counsel issued a com-
plaint alleging, inter alia, that Babcock & Wilcox Company had discriminatorily
discharged Owen and other named employees. Owen testified against Babcock &
Wilcox at the unfair labor practices hearing held in that matter in April 1954 at
Paris, Texas; one of the witnesses for Babcock & Wilcox in that same proceeding
was Louis Williams, personnel manager of Babcock & Wilcox.4
The General Counsel contends that Respondent denied employment to Owen
after a 1-day tryout period in September 1954 because of his testimony at the Bab-
cock & Wilcox hearing. Respondent, on the other hand, denies that Owen was ever
its employee and further asserts in its answer that it did not hire Owen "because he
was not considered to be a person having the personality, knowledge, aptitude, train-
ing, experience, and qualifications to efficiently and adequately serve the customers
of Respondent, to sell its milk and milk products, and to perform the customary and
required duties of a routeman." The conflicting testimony on material events makes
it necessary, in resolving the issue of alleged discrimination, to set forth each wit-
ness' testimony in some detail.
Owen's Testimony
Learning of the vacancy on the Cooper route, as stated above, Owen went to
Respondent's Paris office on September 7 to apply for such job. He stated his
purpose to an unidentified receptionist at the information desk at the office and she
informed Owen that Respondent was not taking-applications. An unidentified man
at an adjacent desk then told the receptionist that she "had better" let Owen speak
with White, the general manager, because, as this man stated, "I think there is a job
open " The receptionist then spoke with White who was in a nearby office in the
building, following which she sent Owen to White's office Owen inquired of White
about the Cooper vacancy, whereupon White told Owen he should fill out an
application form and give it to Jackson, the route supervisor, as "Mr. Jackson will
be the man that will have the man for that route." During this conversation,
White inquired, among other things, as to Owen's churchgoing practices, place of
residence, and marital status. White did not ask Owen "anything about a union."
Owen filled out the application that evening, and the next morning he approached
Supervisor Jackson in Cooper, introduced himself to the latter and recounted his
visit with White, and he gave Jackson the application. Jackson said he would check
the application and discuss the matter with White and let Owen know what was de-
cided Several days later (about September 10) Owen inquired of Jackson whether
Jackson had spoken to White, Jackson replied that he had not and suggested that
Owen meet Jackson the following morning. Owen met Jackson again the next
morning, but Jackson still had not seen White; and, on either September 13 or 14.
Jackson told Owen to meet him at the creamery in Paris on Thursday afternoon
and that both men would then see General Manager White on the matter On one
of these occasions during the week of September 7, Owen mentioned to Jackson re-
garding some "union difficulties" Owen had been involved in while working at Bab-
cock & Wilcox and in that connection Owen referred to Louis Williams, the per-
sonnel manager of Babcock & Wilcox.5 Also when Owen, on one of these occasions,
told Jackson that he (Owen) was not a salesman and was looking for a truckdriver
job, Jackson replied that "you don't have to be a-salesman to take in the milk. You
just take it in and leave it in the box You don't have to be a salesman to be a route
salesman."
Owen met Jackson on Thursday afternoon at the creamery, as they had ar-
ranged, and Jackson sent Owen alone into White's office while he, Jackson, com-
pleted some work. White asked Owen whether Owen had submitted his application
to Jackson; Owen replied that he had and they engaged in some general conversa-
4 Babcock & Wilcox Company , 114 NLRB 1465 The matter is presently before the
Board upon exceptions to the Trial Examiner ' s Intermediate Report which , inter alfa,
reeonnnended dismissal of the complaint as to Owen
Owen explained the context of this incident to be that, when Owen leained that some-
one else aa4 also interested in the Cooper job , be told Jackson that his Cooper references
would give him ( Owen) a good recommendation but that he believed lie had been laid off
by Babcock & Wilcox-ahom he had named as a former employer on his applica-
tion-because of a "little difficulty over the 'Union ." Owen further told Jackson at the
time that he believed he would get the Cooper job unless Williams , of Babcock & Wilcox,
would not give him a good recommendation '
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion until , about 5 minutes later, Jackson entered the office with Owen 's application
which Jackson then either handed to White or laid on White 's desk . White asked
Jackson whether the latter had checked the references on the application and Jackson
replied that he had checked the grocery stores. White looked over the application
and remarked that Owen had listed Babcock & Wilcox as one of his former employ-
ers. White asked -Owen at the time why he had been laid off there and whether
he had been laid off individually or as part of a group ; Owen replied that his was a
group layoff and that he "thought it was on account of that union deal they had out
there." White remarked that "we don 't want a union out here at this plant. We had
a union election [ Lamar Creamery , Case No. 16-RC-855 ( 1952) not reported in
printed volumes of Board Decisions and Orders ] and the employees didn't want
the union here . I didn't tell anyone that before , but I told everyone since that we
don't want no union here"; White then cautioned Owen not to relate this conversa-
tion to the Union or the Board because "I got a man sitting right here to swear I
didn 't say that. Isn't that right , Jackson ?" Jackson answered , "Yes."
Also during the meeting in White 's office Owen mentioned that he was not a
salesman , and he had written "truckdriver" on the application as the job for which
he was applying . White explained that the job in question was that of a "route
salesman" and he requested Owen to make the appropriate change on the appli-
cation after asking Owen who had filled out the form . Observing Owen 's penman-
ship on the application and in making the change , White told Owen that "it was
nice to have someone around here that can read and write ." White told Jackson
on this same occasion that Jackson is the one who "will have to be pleased" with
Owen , to which Jackson replied that he thought Owen would make a "pretty good
man." White did not ask Owen whether Owen was a union member or had engaged
in any union activity . The meeting concluded with White 's instructions that Owen
be given a physical examination and that Owen should accompany Jackson on the
Cooper route the next day . Owen then was given a physical examination and, at
Jackson 's suggestion , he also informed one of the other employees what size and
how many company uniforms to order.
The next day ( Friday ) Owen accordingly went out with Jackson on the Cooper
route . On one occasion during the day Owen informed Jackson that there was a
particular store to which Jackson apparently had not been delivering milk; Jackson
replied that Owen could contact the storekeeper when he, Owen , took over the route.
Jackson explained to Owen that Jackson would break in Owen gradually on the
job, that he "didn 't want to show [ Owen] too much in one day . . . it would take
several days and he [Jackson ] didn't want to rush ( Owen ]." They met Brewer's
wife during the trip ; and she told Jackson that she would not be permitted to see
her husband for 5 or 6 weeks . Also that morning , Owen told Jackson that he had
not yet made the bond which Jackson had informed Owen on Thursday that
Respondent's deliverymen are required to furnish ; Owen further stated that he
would have the bond the following Monday; Jackson replied that would be satis-
factory. They did not discuss anything in reference to unions on the route.
When they completed the Cooper route and returned to the plant that afternoon,
Jackson made out his daily report and he left Owen upon telling Owen that he would
have Owen 's withholding tax form prepared . Jackson meanwhile went to White's
office and returned after a while with White . White informed Owen, Jackson also
being present , that White could not use Owen because Jackson had learned from
Brewer's wife that Brewer would be "all right ," to which Owen replied that he,
Owen , understood that it would be at least 6 weeks before Brewer would get out of
the hospital . Owen told White that White "must have checked with Louis Williams
[personnel manager of Babcock & Wilcox ]"; White replied that he had and that
Williams had not given Owen "such a good recommendation ." Owen remarked that
Williams had told Owen that Williams would give Owen "a' one hundred percent
recommendation ." "But," said White , "you didn 't tell me that you testified against
the Babcock & Wilcox Company at the Labor Board hearing ," to which Owen
replied that he-"didn't think that would help me any ." "It would not have helped
you," White said . White said nothing in substance during this conversation that
Owen was not qualified for the job.
Owen obtained his check for 1 day's compensation that same afternoon , and a few
minutes later outside the office Jackson told Owen that "I am not going to hire
anybody else. I hired you for this job and now that you can 't be here, I am not
going to hire anybody else. They can hire the other men that they want." The
following Monday morning (September 20), Owen met Jackson in Cooper and
Jackson told Owen that "if you hadn 't put on your application that you had worked
at Babcock & Wilcox Company , you would have still been with us." Owen replied
LAMAR CREAMERY COMPANY, - 1119
that he "wanted to be honest about it" and that he would see Williams in an effort
'to "get matters straightened out"; Jackson remarked, "I don't blame you, I would get
'it straightened out too." "
Owen went to Babcock & Wilcox that same day (September 20) to speak with
Williams; being informed that Williams was not in, Owen returned to the creamery
to ask White to reconsider the matter. Owen informed White of his visit to Bab-
cock & Wilcox in order to ascertain from Williams why he, Owen, "couldn't keep the
job in Paris or Cooper." White thereupon asked Owen whether Owen would like
"some advice"; when Owen replied he would, White explained that "if you are going
to get along in this area, you are going to have to leave the union alone and try to
get along with not only the Lamar Creamery and Babcock & Wilcox Company but
people . . . Mr. Williams runs the Babcock and Wilcox Company and I run the
creamery." "If you would lay your cards on the table," White further stated, "it
wouldn't have mattered whether you worked out there at Babcock & Wilcox or not.
There is a man working here today that left, had a union card laying on this table
when I hired him."
Testimony of Respondent Witnesses White, Jackson, and Williams
Jackson testified that he first met Owen when Owen approached him in Cooper
on September 12 or 13; that Owen inquired as to a job opening on the Cooper route
and that Jackson informed Owen there was such opening; that Owen questioned
Jackson about the work involved; that Jackson told Owen that Jackson would dis-
cuss the matter with Jackson's superiors; and that Owen and Jackson arranged
to meet again. Jackson testified that he took up the matter with his superiors and
was told to "go ahead and find a man for the route." Jackson testified that he next
met Owen on Thursday morning (September 16) at which time he informed Owen
that White has the final word on hirings and that Owen would have to obtain and
'fill out a company application blank and take a physical examination before be-
ing given an opportunity "to be tried on the truck." According to Jackson, Jackson
told Owen to meet him that afternoon (September 16) at the Respondent 's offices
in Paris . That afternoon, according to White's and Jackson's testimony, Jackson
and Owen went into White's office and Jackson introduced Owen to White as a
man whom Jackson was considering for the Cooper vacancy; Jackson later changed
this testimony to the effect that Owen alone went into White's office and that Jackson
did not join White and Owen until about 5 minutes later. White testified that
this was the first time he had met Owen. - '
White testified that Owen had given his written application to Jackson several
days before September 16 (although elsewhere in his testimony he "was not sure
the application was handed to Mr. Jackson") and that Jackson handed this applica-
tion to White when, according to White, both Jackson and Owen entered his office
Thursday afternoon. Jackson, on the other hand, testified, as stated above, that
it was not until Thursday morning that he told Owen of the requirement to obtain
and fill out an application blank and he also testified that the first time he saw
Owen's application was on White's desk when he and Owen were in White's office
on Thursday afternoon. Jackson and White testified, in effect, that they arranged
with Owen that afternoon that Owen would go out on the Cooper route with Jackson
the following day (Friday, September 17) so that Jackson might determine what
'kind of route man Owen would make and that Owen should first be given a physi-
cal examination s Jackson and White also both testified that they arranged to dis-
cuss, the following day or shortly afterward, whether Owen would be permanently
employed as a route man. White denied that Babcock & Wilcox was mentioned
at this meeting, or that any reference was made to unions or to an election at Re-
spondent 's plant.
Jackson testified that, even before the Thursday afternoon meeting in White's
office, he had checked on some of "the personal references that Mr. Owen had
'put on his application." Jackson was then asked how he had been able to check
such "references" before the Thursday meeting in White's office in view of the fact
that he also had testified that he had not even seen Owen's application until later
in White's office. Jackson's reply was to deny testifying that he had checked
some of Owen's "references" and to state that he had testified only that he had
I checked some of the "merchants."
r" a State laws require a health certificate of all personnel handling dairy products'; hence,
""the fact of Owen's physical examination is of no consequence in resolving the issue 1n
this case. • ,
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next day, Friday, Jackson and Owen accordingly worked the Cooper route.
According to Jackson, Owen acted as his helper that day and Jackson introduced
Owen to all the customers and he told Owen how much milk and other dairy prod-
ucts to deliver at each stop. Jackson testified that during that day he asked the
Cooper storekeepers about Owen and he further testified that each of them gave
Owen a good recommendation. Meanwhile, according to White, during that day
White had a conversation about Owen with Personnel Manager Williams of Bab-
cock & Wilcox, as discussed hereinafter.
When Jackson and Owen returned to the plant on Friday afternoon after complet-
ing the Cooper route, Jackson alone reported to White, according to Jackson's
testimony, that all the merchants to whom he had talked had recommended Owen
for the job; nevertheless, also according to Jackson, Jackson recommended to White
that Owen was not "suited for the job" because Owen was not familiar with all
the customers on the route and also because of Owen's lack of selling experience in
his prior employment. Owen's lack of selling experience was known to Jackson
on Thursday, according to Jackson's testimony, even before Jackson and Owen ar-
ranged to have Owen accompany Jackson on the Cooper route. Although Jackson
several times stated that the two above-mentioned factors were the only reasons
he gave White for his recommendation respecting Owen and constituted the only
conversation he had with White at the time, Jackson later added still another
factor, namely, "lack of initiative" as a reason for his recommendation and he
then testified that he also had mentioned this item to White. At one point in his
testimony, Jackson stated that he had lost interest in Owen while they were work-
ing together because Owen had mentioned during the day that Williams had given
Owen a "bad deal" and Jackson testified that Williams was Jackson's life-long
friend. White testified at one point that Jackson informed him on that occasion
that Owen had spoken unkindly of two former employers, namely, Delta Farm
Stores and Babcock & Wilcox; in later testimony, White was not certain that Jackson
had mentioned Delta Farm Stores in that conversation; Jackson's testimony makes
no mention of Delta Farm Stores being discussed between Jackson and Owen and
Jackson denied that he had reported to White the alleged statements of Owen regard-
ing Williams.
White and Jackson testified that White approved Jackson's recommendation and
that, outside of Jackson's presence, White alone then notified Owen of the decision.
According to White, White told Owen that "based upon the conversation that I
[White] had with Mr. Jackson and his recommendation, that we didn't feel that
we would be able to use him in our employ and that the man that had been on the
route, who was mentally ill at that time and was away in the hospital, might even
yet come back to his old route and, because of Mr. Jackson's opinion of Mr. Owen,
that he was not a, what we would consider a one hundred percent employee, or
his qualifications did not meet what we expected of a route man one hundred per-
cent, that we decided that we would not employ him to take that route." White
testified that Owen was displeased with White's action and that Owen insisted that
Williams had given him a "bad recommendation" because of Owen's "previous
activities . in the [Babcock & Wilcox] labor hearing and something pertaining
to the Babcock and Wilcox labor problems." White testified that he thereupon
assured Owen that Williams had not given White an unfavorable report on Owen.
White denied telling Owen on this or any other occasion that Williams had informed
White of Owen's witness role at the Babcock & Wilcox hearing.
White testified that Owen returned several days later to request White to recon-
sider the matter of Owen's employment. White told Owen on this occasion, ac-
cording to White's testimony, that it might be "fortunate" that Owen had not been
employed because Brewer seemed to be improving and "it was entirely possible"
that Brewer would be able to return to work. (According to White, Brewer did
return later, but not to the same job, and Respondent has meanwhile hired two
other employees for the Cooper route, the first such replacement having been trans-
ferred to Respondent's retail division.) White, in effect, denied Owen's afore-
stated version of this conversation.
Jackson denied any further material discussion with Owen concerning matters
at issue here, except for a casual meeting with Owen on September 19 on which
occasion Owen declared, so Jackson testified, that " it is tough luck that I [even]
didn't get the job." Jackson also denied that any discussion about unions or Labor
Board elections occurred in his presence between White and Owen. And Jackson
further denied that Owen had ever told him about any union activity or having
testified in a Labor Board hearing.
LAMAR CREAMERY COMPANY 1121
White testified that he has known Louis Williams of Babcock & Wilcox for many
years. White and Williams both testified that White called Williams and inquired
about Owen while Jackson and Owen were working the Cooper route; that Williams
informed White only that Owen had been a satisfactory employee of Babcock & Wil-
cox who had been terminated in an economic layoff. Denying also that anything
Williams had told him affected his action respecting Owen, White testified that
the first he learned of Owen's participation in the Babcock & Wilcox proceeding was
from Owen himself on Friday afternoon; and White further testified that it was also
.not until then that he learned that there had been a hearing as to Babcock & Wilcox.
After further questioning, however, White admitted earlier knowledge of the Babcock
& Wilcox proceeding; however, he continued to deny awareness of Owen' s role in
that hearing until Owen informed him.
Conclusions
The record shows substantial conflicts between the testimony of Respondent's two
principal witnesses, White and Jackson, as well as inconsistencies in the testimony
of each. Owen's testimony, on the other hand, was consistent under diligent cross-
examination and his demeanor as a witness also impressed me with his obvious
sincerity. I am fully satisfied that Owen's testimony is entitled to belief and I
credit completely his version of disputed matters. Cf. N. L. R. B. v. Robbins Tire
& Rubber Co., 161 F. 2d 798 (C. A. 5).
Without further burdening this report with an analysis of the testimony, set forth
above, it appears that Respondent's witnesses shifted their alleged reasons and added
new reasons for their action respecting Owen. And one is impelled to infer from
reading the entire testimony of Respondent's witnesses that the reasons advanced
by Respondent's witnesses are merely pretexts for Respondent's real motivation.
A preponderance of the credible testimony convinces me that White was aware of
Owen's role as a witness against Babcock & Wilcox Company and that White also
believed Owen to be a union member and otherwise to have engaged in union
activities, and I am also satisfied that therein lay Respondent's real motivation for
its conduct under consideration here.
It is not controlling, in the circumstances of this case, that Owen had not yet
furnished the bond or executed the employment contract required of all permanent
route men. What is decisive, in my opinion, is that Respondent denied such perma-
nent employment to Owen, because of his aforementioned testimony in the Babcock
& Wilcox case and also because it attributed union membership to him. I con-
clude, accordingly, that by its action as to Owen, Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1), (3), and (4) and Section
2 (6) and (7) of the Act. See John Hancock Mutual Life Insurance Company v.
N. L. R. B., 191 F. 2d 483 (C. A., D. C.); N. L. R. B. v. Brady Aviation Corp.,
224 F. 2d 23 (C. A. 5).
THE REMEDY
I shall recommend that Respondent cease and desist from the unfair labor prac-
tices found; and I shall also recommend such affirmative relief as I consider nec-
essary to effectuate the policies of the Act, including the employment of Owen
with back pay for loss of earnings he may have suffered during the period of dis-
crimination against him from September 17, 1954, less his net earnings during
that period, all to be computed and otherwise in accordance with F. W. Woolworth
Company, 90 NLRB 289, 291-299.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discharge, refuse to hire, or otherwise discriminate against
employees because they have given testimony under the Act or because of union
membership or other union activities.
390609--66-vo1 . 118-72
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, to file charges or give testimony under the Act, and to engage in
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 in Section 8
(a) (3) of the Act.
WE WILL OFFER immediate and full employment as a route man to Elmer
Clyde Owen or to a substantially equivalent position without prejudice to any
seniority or other rights and privileges and make Owen whole for any loss of
earnings suffered as a result of the discrimination against him.
LAMAR CREAMERY COMPANY,
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.
SUPPLEMENTAL INTERMEDIATE REPORT
Upon Respondent's exceptions to the Intermediate -Report issued in this matter
on July 29, 1955, the Board issued an order reopening record on December 20,
1955. The Board's order also remanded the case for further hearing to be held
before a duly designated Trial Examiner "with respect to and limited to":
1. The cross-examination of Owen by the Respondent as to whether Owen's
signed statement, given to Attorney Rhea, contained any information regard-
ing (a ) the interview of Owen by White, the Respondent's manager, on the
day before Owen rode the route with Jackson, the Respondent's route super-
visor, and if so (b) whether there was any conversation during that interview,
regarding Owen's union affiliation or activity or concerning the reason why
Owen was laid off at Babcock and Wilcox.
2. Such redirect examination, or rebuttal, by the General Counsel, regarding
the foregoing, as may be proper in the premises.
In granting Respondent's appeal in this connection the Board cited Gordon v. U. S.,
344 U. S. 444, 418. -
Accordingly, and upon due notice, a supplemental hearing was held at Paris,
Texas, on January 5, 1956. All parties were represented, and were given full oppor-
tunity to present evidence and to make oral argument within the scope of the Board's
order reopening record. The parties have also been afforded opportunity to file
supplemental briefs in the matter.
I construe the Board's action in remanding the case as permitting Respondent to
lay a proper foundation, within the rule of the Gordon case, supra,' to support
Respondent's demand for the production of Owen's affidavit in question; the ulti-
mate purpose being to enable Respondent to impeach Owen's credibility on the
basis of prior inconsistent statements. Owen's affidavit was made available to
Respondent at the hearing, even without the requisite foundation having been estab-
lished; however, after being given the affidavit, Respondent did not offer the docu-
ment in evidence or show that it was contradictory of Owen's testimony at the
hearing; and Respondent also then objected, which objection I sustained, when the
General Counsel sought to offer the affidavit into evidence as a General Counsel
exhibit. No material contradictions were established as to Owen's testimony at this
supplemental hearing, either by cross-examination or by reference to the affidavit.
The record in the supplemental hearing accordingly affords no basis or reason for
disturbing any credibility resolutions or other material findings as set forth in the origi-
nal Intermediate Report.
3 For decisions on the applicability of the Gordon case, see N. L. R. B. v. Thayer Com-
pany, 213 F. 2d 748, 759 (C. A. 1), cert. denied 348 U. S. 883 ; Scanlon v. U. S., 223 F. 2d
382, 385-388 ( C. A. 1) ; Shelton v. U. S., 205 F. 2d 808 , 814 (C. A. 5) ; Simmon8 v. U. B.,
220 F. 2d 377, 878 (C. A., D. C.).