Logan Dairy Co.

National Labor Relations Board - Board Decisions

Oct 30, 1964

149 N.L.R.B. 410 (N.L.R.B. 1964)

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. All employees covered by the national collective-bargaining agreement be-
tween the Union and Respondent, dated September 20, 1961, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times material the Union has represented a majority of Respondent's
employees in the appropriate unit, and, by virtue of Section 9(a) of the Act, has
been, and is now, the exclusive representative of all employees in said unit for the
purposes of collective bargaining with respect to grievances, rates of pay, wages,
hours of employment, and other terms and conditions of employment.
5. By refusing to answer all pertinent inquiries from April 29, to June 3, 1963,
of the Union's shop committee about its intention to transfer its OK Parking lot
operation to PMT, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of the Act.
6. By unilaterally discontinuing and transferring its OK Parking lot operations
to PMT on June 17, 1963, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a)( I) and (5) of the Act.
7. By refusing to discuss and negotiate with the Union on June 11 and 12, 1963,
its intention to discontinue and transfer its OK Parking lot operations, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (5) of the Act.
8. The aforesaid acts are unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Peggy E. Hiroskey d/b/a Logan Dairy Company and Chauffeurs,
Teamsters and Helpers Local Union No. 175, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America. Cases Nos. 9-CA-3100 and 9-CA-3155.
October 30, 1964
DECISION AND ORDER
On July 21, 1964, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that it would not
effectuate the policies of the Act for the Board to exercise jurisdic-
tion in these cases and recommending that the complaints be dis-
missed in their entirety, as set forth in the attached Decision. There-
after, the General Counsel and the Charging Party filed exceptions
to the Trial Examiner's Decision with 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
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in these cases, including
the General Counsel's and the Charging Party's exceptions and
149 NLRB No. 33.
LOGAN DAIRY COMPANY 411
briefs, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with respect to the assertion of jurisdic-
tion in these cases.
[The Board dismissed the complaints.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed by the above-named labor organization in Case No.
9-CA-3100 on February 11 and March 5 , 1964, the General Counsel of the Na-
tional Labor Relations Board issued his complaint and notice of hearing on March 31,
1964 . Upon a charge filed by the same labor organization on April 3, 1964,
in Case No. 9-CA-3155, General Counsel issued his complaint on May 21, 1964,
and on the same date issued an order consolidating the two cases for hearing. In
Case No. 9-CA-3100 an undated answer was received by the Regional office on
some uncertain date.' Both complaints allege that the Respondent has engaged
in and is engaging in unfair labor practices in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended. The only answer filed
before the hearing related to Case No. 9-CA-3100 , and merely "denies each and
every allegation of the complaint filed in this case." Pursuant to notice , a hearing
was held in Logan , West Virginia, on June 24 and 25, 1964, before Trial Examin-
er C. W. Whittemore.
At the hearing all parties were represented by counsel and were accorded full
opportunity to present evidence pertinent to the issues , to argue orally , and to file
briefs. Counsel argued orally upon the record , but waived the filing of briefs.
Also at the hearing, and pursuant to Board order, the Respondent was permitted
to file a belated answer in Case No. 9-CA-3155. The answer consisted merely of
an oral motion , which was granted , to "have the answer filed in Case No.
9-CA-3100 be considered enlarged to cover 9-CA-3155."
Disposition of the Respondent 's motion to dismiss the complaints , upon which
ruling was reserved at the conclusion of the hearing, is made by the following
findings, conclusions, and recommendations.
Upon the record thus made , and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Peggy E. Hiroskey, d/b/a Logan Dairy Company, is a distributor of dairy
products , with office and place of business in Logan , West Virginia. Peggy
Hiroskey, according to the testimony of her husband , Gene Hiroskey , is the owner
of the business although , also according to his testimony , he received the "owner's
salary" of $6000 for the year 1963 as shown on a CPA.'s "Income Statement" for
Logan Dairy Co. covering that period.
Most of the dairy products it sells and delivers to hospitals , stores, and similar
outlets are purchased by Logan from Broughton Farm Dairy , Inc., a West Vir-
ginia corporation with home office in Marietta , Ohio, and which is engaged in
the processing of dairy products at various plants in Ohio , West Virginia, and
Kentucky.2
Testimony of a Broughton official , and records in evidence , establish the follow-
ing facts:
(1) From January through October 26, 1963, Logan purchased from Brough-
ton processed dairy products valued at $91 ,327.86.
(2) All of such products during this period were produced or processed in
Marietta , Ohio, from which point they were transported , by truck, to Broughton's
1 This answer , in evidence , bears what apparently are receipt stamps both of April 6
and 10.
2 Comparing Broughton 's sales records to Logan ' s "Income Statement ," both for 1963,
It appears that of the latter's total purchases , amounting to $120,437 .66, a total of
$115,244.86 came from Broughton.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distributing branch in Huntington, West Virginia, and from this distributing
branch were billed and shipped to Logan Dairy. No processing was performed at
Huntington.
(3) From October 1963, and up to the hearing date, Logan has obtained such
Broughton products from the latter's processing division located in Charleston,
West Virginia.
(4) During the latter period, and through May 1964, Logan has received from
the Charleston Division of Broughton products totaling in value $93,680. Of this
total, products valued at $87,256, all were processed in Charleston, and products
valued at only $6,424 were made and processed in Marietta. All such sales to
Logan in this period were billed and shipped from Charleston.
So far as the record shows, since October 1963, products valued at only $6,424
and purchased by Logan, have crossed a State line in any way, or at any time.
Projecting this figure to probable purchases for a full 12-month period would
clearly fall far short of $50,000, the jurisdictional minimum.
General Counsel urges that the Board has jurisdiction on the basis of the pur-
chases originating in Ohio during the first 10 months of 1963. The Respondent
contends the contrary, noting that since the opening of the West Virginia process-
ing plant, its purchases from Broughton, which originated outside West Virginia,
have been small in dollar value and insufficient to establish Board jurisdiction.
The Trial Examiner is constrained to agree with counsel for the Respondent,
especially since other evidence establishes that Logan is a small concern and its
delivery drivers, the employees here concerned, number only three.
Under circumstances existing here, where it appears that there is no reason to
believe that other than a permanent change has been made in the processing and
purchasing point of Logan's supplier of products delivered and sold locally, the
Trial Examiner is of the opinion that it would not effectuate the policies of the Act
for the Board to exercise jurisdiction. For that reason it will be recommended that
the complaints be dismissed in their entirety.
Since the Board may be of a different mind, however, and in order to make
remand for such findings unnecessary, the Trial Examiner will, below, make find-
ings and conclusions concerning the alleged unfair labor practices.
II. THE CHARGING UNION
Chauffeurs, Teamsters and Helpers Local Union No. 175, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor
organization admitting to membership employees of the Respondent Logan.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Setting and major issues
In mid-January 1964, Logan's three delivery drivers signed cards for the
Charging Union. Gene Hiroskey, the general manager, as a witness admitted
that he learned of his drivers' action shortly after it occurred, from one of the
drivers who had signed-Gleason. The latter told him, Hiroskey said, that al-
though all three had signed, he would "stick with me," because he "was a faithful
employee."
The other two drivers, Jessup and Harless, were thereafter fired by Hiroskey, the
former on January 28 and the latter on April 2, 1964.
The chief issue arising from the complaints is the discharge of these two individ-
uals, General Counsel contending that each was dismissed to discourage member-
ship in and activity on behalf of the Charging Union.
B. The discharges
(1) Charles Jessup
Jessup was hired in mid-October 1963 by Hiroskey to take over a salesman-driver
route until then covered by Gleason, identified above as the "faithful employee."
At the time of hiring, according to Jessup's credible testimony, he was told by
Hiroskey that Gleason had not been "doing the proper job" and that he wanted
him "working for me" because of his "experience" and "background." Such testi-
mony is corroborated by Hiroskey, who testified that he told Jessup, at the time of
hiring, "I feel as though you could pick me up some additional business" and "As
long as the thing goes smoothly and you can show me some real good sales . . .
you will always have a job with me ...."
LOGAN DAIRY COMPANY 413
It is not credibly disputed that during his brief period of employment Jessup
built up his route from a daily average sales of from $175 to $180, to $260 to
$300.
On January 27, apparently after getting a telephone call from some Teamster
representative, Hiroskey came to Jessup and demanded to know "how you feel
about the Union." (The quotations are from Jessup's testimony.) Jessup told
him that if the drivers were working for "Broughton's operation" they should be
represented by the Union, and should have all the benefits that drivers for Brough-
ton were getting When Hiroskey pointed out that it was "not Broughton's
operation," Jessup replied, "Well, Gene," (then) you have no worry. I am a man
of my word. I told you what I would work for you for. That is exactly what I
would (will) do."
The next day Hiroskey fired Jessup, who promptly asked why. According to
Jessup's credible testimony Hiroskey told him that "I checked with my bookkeeper
today" and he "told me I operated $500 in the red in the month of December" and
he had to go back on a route "in order to pull myself out of the red." Jessup
protested, declaring his belief that December had been the best month "we had,"
and added that "the whole thing looks to me like you are letting me go because I
signed a Union card" and because the day before he had told him how he felt
about the Union.
Hiroskey, as a witness, claimed that he discharged Jessup for "economy" rea-
sons, and "because the company was losing money." The claim of "loss," either
for the month of December or for the year 1963, is refuted by the Company's
"Income Statement," in evidence and affirmed by the company bookkeeper, a CPA.
It shows a net profit for the month of December of $532.59, after deducting the
"owners salary" for that month of $500. The net profit for the year, after deduc-
tion of the "owners salary" of $6,000, is shown to be $5,447.78. The Company's
own figures, therefore, show that the average monthly profit for 1963 was approxi-
mately $454-and that the December profit was considerably higher than such
average. The fact supports Jessup's testimony concerning his protest to Hiros-
key on the day of the discharge concerning his claim of loss during December.
In short the Trial Examiner finds no merit in Hiroskey's contention as to why he
discharged Jessup. It is concluded and found that this driver was dismissed to
discourage union membership and activity, and that such discrimination interfered
with, restrained, and coerced employees in the exercise of their rights guaranteed
by Section 7 of the Act.
The conclusion finds support in subsequent events. After being fired by Hiros-
key, Jessup met in the office with the other two drivers, Harless and Gleason, and
told them he believed he was being fired because of the Union. They called
Hiroskey back-he had left the office temporarily at Jessup's request-and the latter
again asked directly if he had not been let go because of the Union. Hiroskey
again denied this. Harless spoke up and said that if the dismissal was because of
the Union all three were in the same "box," since all three had signed. Hiroskey
replied that he knew this, and they did not have him "fooled." Hiroskey
added that if they had only come to him to talk about District 50 (United Mine
Workers), in which he said he carried a card, he might have considered it. But
with the Teamsters, he said, they were "talking ourselves out of a job." (The
quotations are from Harless' credible testimony, corroborated in substance by Hi-
roskey himself.)
As noted a charge concerning Jessup's dismissal was filed by the Union on
February 11, and it was duly served upon the Respondent.
On February 26, Hiroskey signed the following letter, addressed to Jessup-not
at his home address-but at the concern where he was then working:
As a result of your termination by our company, unfair labor practice
charges have been filed against us.
Although your charges have no basis in fact, we have been advised by our
attorney that you would have the claim to back pay, minus the wages you
have earned at other work, in the event that your false assertions cause the
NLRB to issue a complaint against our company.
Therefore, although we cannot' afford to have you in our employment, as
you were advised at the time you were terminated , we are hereby notifying
you to report for work at your regular starting time on Friday, February 28,
1964. We will be losing money by recalling you and it may force us to lay
off employees who have been with us longer, but we do not believe you should
have even a small opportunity to collect anything from us without your
working for it. After the charges have been disposed of, we are sure that
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you will see that our position is correct . You were terminated for economic
reasons, and for no other reason , which is what you were advised at the time
of your termination.
In the event that you fail to report for work on Friday, February 28, 1964,
at your regular starting time, we will consider you as having voluntarily quit
as of that date.
Having observed Hiroskey as a witness , the Trial Examiner does not have to
stretch an inference unreasonably to suspect that Hiroskey , while he may have
signed it , was not the author of the document.
It appears that Hiroskey delivered the letter to Jessup in person , at the place
where he was then working , and in a manner which did not particularly please the
employee. In any event it is clear that both Hiroskey and his attorney, Phillips,
visited Jessup at his home the evening of February 27, and he agreed to report the
next morning.
Jessup reported but was not given his regular work, and instead was assigned to
janitor tasks , cleaning up the place, including the toilets . This work he performed
for 2 days, and then was given one of three keys to the "milk room." On the
third day he helped load and unload trucks and washed trucks. On the fourth day
he was put at cleaning again , and at the end of the day, was told by Hiroskey to
call him at noon the following day. He called as instructed and was told to meet
Hiroskey at his office at 5 p .m. Jessup reported as directed. In the presence of
a company witness Hiroskey announced , "Jess, I am going to have to let you go
again ." Jessup asked why. Hiroskey replied, "Well, your inventory is off in the
milk room." Jessup demanded to know what he was "short" of, and asked for
proof. Hiroskey declined to show proof, but said "my attorney will be showing it
to you." Jessup then asked , "What are you doing , accusing me of stealing?" Hi-
roskey answered , "I didn't say that , I just said your inventory was off in the milk
room "
The substance of Jessup 's account of this second discharge is corroborated both
by Hiroskey and a neighbor, Richards, who the manager had called in to be a
witness to the discharge . Despite the fact that all three present at the final inter-
view, Jessup, Hiroskey , and Richards testified in agreement that Jessup was told he
was "let go" because of a claimed shortage in the "milk room," for some unex-
plained reason counsel for the Respondent repudiated the testimony of his own
witnesses , and declared , "There is no second discharge " and added, "It's my posi-
tion that he was not given charge of the milk room because of this shortage,
sir. They were thinking about making a job for him and the milk room started
showing up short and Mr. Hiroskey decided he better keep his own keys to it
for awhile "
The Trial Examiner is thus faced with a conflict between counsel for the Respond-
ent and his own witnesses . In any event , no proof was offered in evidence by the
Respondent either of any actual shortage in the "milk room ," or of Jessup 's respon-
sibility for it, if any such shortage existed.
The more reasonable explanation , it appears to the Trial Examiner , for this
puzzling recall, is found in Hiroskey's testimony. He said that when he had
previously fired Jessup he had paid him for the remainder of the week, 4 working
days, and that when he gave him work to do on February 28 he told him, "Charlie,
you owe me for four days' work here." It is reasonably inferred that he had no
intention of doing more than getting his money 's worth out of the employee he
had unlawfully discharged.
(2) Howard Harless
Harless had been a route-salesman for the Respondent for more than a year when
summarily discharged by Hiroskey on April 2 for the claimed reason that he had,
on March 31, used "vulgar " language in speaking to a hospital cook.
As previously noted, at the time Jessup was fired Harless had openly protested
and pointed out that he, also, had signed a union card. Gleason having, in effect,
defected by his informing Hiroskey of the union action while declaring his own
loyalty, it appears that Harless remained as the one union adherent on the payroll
after Jessup was fired for the second time.
The Trial Examiner considers it unnecessary to review the exaggerated and
inconsistent testimony of Hiroskey and the cook concerning the former 's claimed
reasons for discharging Harless. His own admission that he had been "trying" to
get signatures to letters of complaint against Harless for "a matter of a month
before I let him go" and his further admission that even before confronting the
employee with the alleged "complaint" of the cook he had called Attorney Phillips
WELSH CO. 415
and "told him what evidence we had on Mr. Harless" plainly demonstrates, in the
opinion of the Trial Examiner, the conduct of an employer who is resolved, in one
way or another, to find an excuse to fire a known union adherent.
It does appear that on March 31, the last delivery Harless made at the hospital,
there had been some dispute (between the cook and himself) about a pint of
half-and-half. But it is undisputed that upon his return to the terminal Harless
reported the matter to Hiroskey and that the latter had approved not "making up"
the apparently spoiled pint. There is sharp conflict in the testimony of Hiroskey
and the cook as to when a letter, purportedly written by the cook, was obtained by
the manager. Considering this conflict, in the light of Hiroskey's admission of
his trying to get evidence against an employee he had known for many years,
leads to the grave suspicion that the actual events are not revealed by the rec-
ord. Whether the cook, Hiroskey, or his attorney devised the language used in
the cook's letter is purely speculative, but having observed the cook on the witness
stand the Trial Examiner finds it difficult to believe that the language used is
entirely his own. It is couched in general terms, and ends: "... you asked that
I write you regarding this complaint for you to keep on file."
In any event, the Trial Examiner is persuaded by the preponderance of credible
evidence that Harless was not discharged because of any real dereliction in the
performance of his work, or because of use of "vulgar" language, but because
Hiroskey was resolved to clear his staff of the one remaining union adherent.
Such unlawful discrimination interfered with, restrained, and coerced employees in
the exercise of their rights guaranteed by the Act.
C. Conclusions
Assuming jurisdiction in this case, the Trial Examiner concludes and finds that
by the discriminatory discharges of Jessup and Harless the Respondent has violated
Section 8 (a) (1) and (3) of the Act.
RECOMMENDED ORDER
For the reasons set forth in section I, above, the Trial Examiner does not believe
that, under the circumstances of this case, it would effectuate the policies of the Act
for the Board to exercise jurisdiction.
It is therefore recommended that the complaints in both 9-CA-3100 and 3155 be
dismissed in their entirety.
Welsh Co. and International Brotherhood of Firemen , Oilers,
Maintenance and Production Employees , Local No. 6, AFL-
CIO
Welsh Co. and Upholsterers International Union , AFL-CIO,
Local 25. Cases Nos. 14-CA-3202 and 14-CA-3275. October 30,
1964
DECISION AND ORDER
On July 13, 1964, Trial Examiner David London issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the De-
cision, together with a supporting brief.
Pursuant to Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers herein to a three-member panel
[Chairman McCulloch and Members Leedom and Jenkins].
149 NLRB No. 37.