Miller Road Dairy

National Labor Relations Board - Board Decisions

Jan 12, 1962

135 N.L.R.B. 217 (N.L.R.B. 1962)

MILLER ROAD DAIRY, A CO-PARTNERSHIP . 217
or tenure of employment or any term or condition of employment against any em-
ployee because of membership in or activity on behalf of any labor organization.
T rrAN METAL MANUFACTURING CO.,
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.
Frederick O. Glass, Joseph E . Glass, Maurice Glass, and Roswell
C. Glass, d/b/a Miller Road Dairy , a Co-partnership and Local
332, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Ind. Case No. 7-CA-
3180. January 12, 1962
DECISION AND ORDER
On October 5, 1961, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action as set forth in the Intermedi-
ate Report attached hereto. The Trial Examiner also found that the
Respondents had not engaged in certain other unfair labor practices
alleged in the complaint, and recommended that such allegations be
dismissed. Thereafter, the Respondents filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the modification of section 2(g) to read : "Notify said Regional
i As no exceptions were filed to the Trial Examiner's ultimate conclusion that the
Respondents did not engage in unfair labor practices within the meaning of Section
8(a) (5) of the Act by refusing to bargain collectively with the Union , we adopt that
conclusion pro forma and deem it unnecessary to pass upon his subsidiary finding that
the requested unit limited to wholesale drivers alone was inappropriate for collective
bargaining Nor do we pass upon the Trial Examiner's other subsidiary finding that
James Hanna , a bulk-tank driver, was not an independent contractor but an employee in
the unit in which the Union sought representation.
135 NLRB No. 36.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director, in writing, within 10 days from the date of this Order,
what steps the Respondents have taken to comply herewith."'
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges a violation of Section 8(a) (5) of the Act.
2 In the notice attached to the Intermediate Report marked "Appendix A," the words
"Decision and Order" are hereby substituted for the words "The Recommendations of a
Trial Examiner." In the event that this Order is enforced by a decree of a United States
Court of Appeals , the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10 ( b) of the National Labor Relations
Act, as amended ( 61 Stat. 136 ; 73 Stat . 519), was heard in Flint , Michigan, on
August 8 , 9, and 10, 1961 , pursuant to due notice . The complaint , issued on
June 29 , 1961 , by the General Counsel of the National Labor Relations Board and
based on charges duly filed and served , alleged in substance that Respondents had
engaged in unfair labor practices proscribed by Section 8(a)(1), (3 ), and (5) of
the Act by ( 1) numerous specified acts of interference , restraint , and coercion in
April and May 1961 (i.e., interrogations , threats, inducements to form a company
union , promises of benefits ); ( 2) discriminatorily discharging Delano Fahr on
April 27 , refusing to reinstate certain employee strikers upon their unconditional
offers to return to work, and imposing conditions upon the reinstatement of others;
and (3) refusing , on April 27 and since , to bargain with the Local 332 as the repre-
sentative of a majority of the employees in an appropriate unit.
Under Respondents ' answer denying the unfair labor practices and the evidence as
adduced at the hearing , the chief issues in the case were whether the Union repre-
sented a majority of the employees in an appropriate unit and whether Fahr's dis-
charge and Respondents ' handling of the reinstatement of the strikers constituted
discrimination within the meaning of Section 8(a)(3). Other issues concerned
the commission of the alleged Section 8 (a) (1) conduct.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS ; THE LABOR ORGANIZATION INVOLVED
I find on facts alleged in the complaint and admitted by answer that Respondent
copartners , who are engaged at their milk processing plant in Flint , Michigan, in
the wholesale distribution of milk and related products , are engaged in interstate
commerce within the meaning of the Act (by direct purchases and shipments from
extrastate points of goods and supplies valued in excess of $50,000 annually), and
that the Charging Union is a labor organization within the meaning of Section 2(5)
of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Introduction; main events
Respondents operate a small, family -owned milk processing plant, which de-
veloped from a small dairy run by the father , Roswell C . Glass. He and his sons,.
Frederick , Joseph , and Maurice (Pete) compose the partnership known as Miller
Road Dairy, of which Frederick Glass has been for several years the managing
partner or general manager.
Respondents employed some eight plant ( inside ) employees , two tank-truck
drivers, nine wholesale route drivers, and some two or three regular helpers.
Organizational activity began suddenly on April 26 among the wholesale route
drivers, when six of the nine signed applications for membership in Local 332.
The Union made no attempt to extend the organization to plant employees or even
to the bulk drivers and helpers, confining its recognition claims to a unit composed
solely of wholesale route drivers . Its request for recognition and for bargaining,
made to Respondents on the morning of April 27, was rejected and was followed
immediately by most of the alleged Section 8 (a)( I) conduct and by the discharge of
Delano Fahr.
MILLER ROAD DAIRY, A CO-PARTNERSHIP 219
On April 28 Respondents refused the Union's request that Fahr be reinstated, and
the six union members (Fahr, Richard Dell, Frederick Hunt, Phillip Rosser, Richard
Hartman , and Robert Kilbourne ) immediately struck in protest , forming a picket
line which was maintained until May 12 , when letters requesting reinstatement were
signed . On May 15 , Respondents reinstated Dell and Hartman as new employees.
The other strikers have not been reinstated.
Consideration of the case may appropriately begin with the refusal-to-bargain
issues, since it was the Union 's demand for recognition which sparked the conduct
which forms the subject matter of this proceeding.
B. The refusal to bargain
1. The appropriate unit
Opposing the General Counsel 's claim for a unit limited to the wholesale route
drivers, Respondents contend for a unit covering all nonsupervisory employees
(except restaurant employees, as to whom the record is silent ), including plant
employees, the regular helpers to the route drivers, and the tank-truck drivers.
Alternatively, Respondents contend that the helpers and the tank-truck drivers must
in any event be included in an appropriate unit with the other drivers.
I reject Respondents ' claim of an overall unit on the basis of Ballentine Packing
Co., Inc., 132 NLRB 923, and cases there cited, including The Valley of Virginia
Cooperative Milk Producers Association , 127 NLRB 785. In Ballentine , Teamsters
sought a unit limited to truckdrivers and their helpers; Meat Cutters sought a pro-
duction and maintenance unit, excluding truckdrivers; and the employer sought a
single plantwide unit. The Board pointed out that it had traditionally established
truckdrivers as a separate appropriate unit in the absence of a bargaining history
where a union seeks to represent the truckdrivers separately and where no other
labor organization seeks to represent them in a unit of larger scope. As the present
case falls squarely within the ambit of that holding, Respondents' evidence that the
pattern of bargaining with milk producers in the area was almost exclusively on the
basis of an overall unit was wide of the mark.
Respondents ' alternative contention requires consideration of their operations
and of the question whether one of the bulk drivers was an employee or an independ-
ent contractor.
All plant employees and all drivers and helpers were under the supervision of
Joseph Glass. Under him , Jesse Moss supervised the plant employees and Simeon
(Dub) Lynn supervised the route drivers and their helpers. The bulk drivers,
Clarence Johnson and James Hanna , worked directly under Joseph Glass' super-
vision, hauling milk from the farm suppliers . Though each had regular routes,
they were sometimes sent elsewhere by Glass, who exercised exactly the same type
of supervision and control over Hanna ( the alleged independent contractor) as he
did over Johnson. All suppliers dealt directly with Respondents; the bulk drivers
simply hauled milk from farms as directed by Glass.
Johnson also sometimes filled in as a wholesale route driver when a regular driver
was absent, and on heavy days he sometimes hauled extra milk from the plant to
route drivers whose supply was depleted. Johnson was paid on a salary basis (as
were the wholesale drivers), and there was no question under the evidence but that
he was an employee.' Though the General Counsel adduced evidence that Johnson
was the brother of Mrs. Roswell Glass and an uncle of the three sons, he makes no
contention in his brief that Johnson should be excluded on the basis of that relation-
ship. As no evidence was offered that Johnson enjoyed any special status which
allied him with management, I find that the relationship was not sufficiently close as
to require exclusion from the unit.
Hanna had worked for Respondents for some 7 years, starting at age 16. He
began driving a tank truck in 1956, and some time thereafter acquired, with Re-
spondents' assistance, a truck of his own, which bears both his own name and that
of Miller Road Dairy . There is no written contract or lease agreement . Hanna is
paid by the hundredweight for the milk which he hauls, and he pays his own social
security and withholding taxes. Respondents do all of his bookkeeping without
charge, and they charge to him all payments which they make for his gasoline,
licenses, and other such expenses. The account is balanced monthly, with Hanna
receiving a check for any balance to his credit Respondents have paid at their
"A union representative testified at the hearing that both tank-truck drivers were
excluded from the unit because of a belief that both were independent contractors, but
conceded that if they were employees they might appropriately be included in the unit.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own expense to have the truck repainted and relettered, and for some,2 months
before the hearing Hanna used, without charge, Respondents' truck because his own
had broken down.
There was no evidence that Hanna hauled, or was free to haul, for third persons
or that he held himself out as a carrier for hire. It may reasonably be inferred from
the nature of his relationship with Respondents that he did none of those things.
Hanna's status is to be determined by viewing the total situation as shown by
the facts in this case. U.S. v. Silk, 331 U.S. 704, 716. "[The agency] and the
courts will find that degrees of control, opportunities for profit or loss, investment
in facilities, permanency of relation and skill required . . . are important for deci-
sion. No one is controlling nor is the list complete." Id.
In cases of this type the problem is one of determining whether the factors
which are indicative of an employer-employee relationship on the one side out-
weigh those which are indicative of an independent contractor status on the other
(Malone Freight Lines, Inc., 107 NLRB 501, 503) with due recognition that some
factors possess more significance and weigh more heavily in the outcome. Cf. Eldon
Miller, Inc., 107 NLRB 557, 559. Though material, it is not decisive, for example
whether Hanna paid, or Respondents withheld, a social security and income taxes.
American Broadcasting Co., et al., 117 NLRB 13, 18; Serv-Us Bakers of Oklahoma,
121 NLRB 84, 87, at footnote 3; nor is it decisive that Hanna may have had a sub-
stantial investment in his truck. Alumatic Windows, Inc., 131 NLRB 1210.
The factors which weigh most heavily here and which are determinative of
Hanna's status were the complete control which Respondents exercised over him
in the performance of his duties (identical with Johnson, an admitted employee)
and the almost complete control which they exerted over his economic situation.
Indeed, the evidence showed plainly that Hanna was in no sense an entrepreneur,
whose opportunities for profit depended on his own "sound management" (U.S. v.
Silk, supra, 331 U.S. 704, at 719) for except to a limited degree, the management of
Hanna's affairs was in Respondents' hands.
Respondents in fact left no room for Hanna to make decisions which will govern
his profit or loss. Servette, Inc., 133 NLRB 132, and cases there cited at foot-
note 10. Though Hanna's gross returns depend in part on an agreed price to be
paid for hauling milk, control of his route, and therefore of the amount of milk to
be hauled, is entirely in Respondents' hands. Furthermore, Hanna's net returns
(profits) are directly affected by the extent of Respondents' favors and gratuities
(e.g., free bookkeeping services, the repainting and relettering of the truck without
charge, and the free use of Respondents' truck for some 2 months).
I therefore conclude and find that Hanna and Johnson were both Respondents'
employees and that as truckdrivers they must be included in the unit in which the
Union sought representation. .
Turning now to the helpers, the record contains no refutation of Joseph Glass'
testimony that at least two of the route drivers (Alvin Sawatzki and Robert Kil-
bourne) had full-time helpers, nor of Phillip Rosser's testimony that he had a regular
but part-time helper who worked on Fridays and Saturdays and who was otherwise
unemployed. All those helpers were hired and paid by Respondents,2 all worked
under Lynn's supervision just as their drivers did, and all of their duties as helpers
were confined to assisting their drivers on the route and at the plant.
Citing testimony by Richard Dell, the General Counsel concedes that Sawatzki's
regular helper should be included in the unit, but he ignores the unrefuted testi-
mony concerning Kilbourne's and Rosser's regular helpers, who belong just as appro-
priately in the unit with their drivers. It is plain that the regular helpers have a
substantial community of interests with the route drivers, and that they have no
substantial interests in common with the unrepresented plant employees. Indeed,
the Board has traditionally placed such helpers in units with their drivers, and the
Union has traditionally sought their inclusion.
I conclude and find that on April 27, 1961, Respondents' two full-time helpers
and its regular part-time helper were a part of an appropriate unit for bargaining
which included the wholesale route drivers and the bulk drivers. I do not find, how-
ever, that the Union's failure to include the helpers and the bulk drivers in its pro-
posed unit rendered the unit defective, since the variance between the requested unit
and the appropriate one was a minor one and not so substantial as would of itself
relieve Respondents from a duty to bargain with the Union.
2 Sometimes the route drivers picked up casual help, without authorization from
Respondents, and in such cases themselves paid the helpers No claim is made that those
casual helpers were Respondents' employees.
MILLER ROAD DAIRY, A CO-PARTNERSHIP 221
2. The majority question' =
The unit which I have found to be appropriate included a total of 14 employees,
-of whom only 6 had signed applications for membership in; the Union.
I therefore conclude and find that the Union was not the representative of a
majority of the employees in an appropriate unit and that Respondents did not
'therefore refuse to bargain with the Union within the meaning of Section 8(a)(5,)
of the Act.
C. Interference, restraint, and coercion
All of the Respondents' alleged Section 8 (a) (1) conduct occurred after the union
representatives demanded recognition on the morning of April 27, and much of it
took place as the route drivers checked in from their routes on that day.
Richard Hartman, Frederick Hunt, Robert Kilbourne, and Phillip Rosser testified
to interrogations by Joseph Glass concerning whether they had joined the Union,
or signed union cards, and Hartman and Hunt testified that Glass threatened to
close the doors or shut the dairy down before the Union, or Hoffa, would run it.
Rosser and Delano Fahr testified to interrogations by Fred Glass, and Rosser testi-
fied further that Roswell Glass, who was present during the interrogation by Fred
Glass, threatened to tear the dairy down before he would allow the Union to come in.
Kilbourne testified to a further threat made by Joseph Glass to the pickets during
the strike that Respondents would close their doors before they would recognize the
Union. Richard Dell testified that shortly after he was reinstated on May 15, Fred
Glass questioned him as to the identity of the employee who had "instigated" the
Union, and that he informed Glass that it was Robert Kilbourne.
Roswell Glass and Joseph Glass denied making the threats which were attributed
to them. However, Joseph Glass admitted questioning the drivers about whether
they belonged to the Union and admitted further that he questioned some of the
plant employees as well as one of the bulk drivers (Clarence Johnson) concerning
what they knew about the Union. Glass explained his interrogations on the ground
that the Union had submitted no proof of majority and that he was checking to
determine whether it in fact had a majority, but he admitted that he did not inform
the employees of his reason.
There was other testimony which resolves the foregoing conflicts in the testimony
of the employees and the employers involved. Simeon Lynn, the immediate super-
visor of the route drivers, testified that following the Union's demand for recogni-
tion on April 27, there was a lot of "union talk," with Fred Glass attempting to
"pinpoint the instigator" of the Union and accusing everyone (including Delano
Fahr) in that connection. Glass also stated that he would refuse to accept the Union
as bargaining agent and that he would close the business before he would let anyone
tell him how to run it.
Warren Krapohl, an attorney and a neighbor of Fred Glass, testified to a back-
fence gardening conversation with Fred Glass after the strike began, during which
Glass commented, in relation to resolving the union problem, that Respondents had
in mind closing down the plant .3
The foregoing testimony by disinterested witnesses plainly tended to corroborate
and confirm that of the employee witnesses. Furthermore, the fact of the interroga-
tions was substantially admitted or was not denied. I therefore credit the testimony
of the employee witnesses set forth above.
Phillip Rosser testified that during the course of his interrogation by Fred Glass
and Joseph Glass on April 27, Jesse Moss, plant manager, joined in at one time with
the suggestion that the employees form their own independent union to settle their
disagreements with supervision.
Kilbourne, Hartman, and Hunt testified to occasions when the suggestion of an
employee club was repeated by Moss and by Fred Glass and Joseph Glass during the
first week of the strike. Kilbourne testified that on May 2 or 3, Moss made the
suggestion of an- inside club during a telephone call in which he also stated that
either Fred Glass or Joe Glass wanted that to happen and that he knew that the
Company would shut the doors before it would recognize the Teamsters Union as
3 That conversation plainly did not occur in the course of an attorney-client relation-
ship, and Glass maintained as a witness that no such relationship existed at any time.
The only other point on which Krapohl's testimony was material was on Respondents'
objections to the unit which the Union proposed, and Krapohl's testimony as to that was
not only cumulative but was corroborative of Respondents' testimony I therefore adhere
to my ruling at the hearing in which I overruled Respondents' objection on the ground of
privileged communication.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the bargaining agent for the employees. Hartman testified that Joseph Glass made
the suggestion during a telephone call which he made to Glass and that Glass also
suggested the possibility of having every ninth day off, stating that if there were an
employee club, they could work out their problems among themselves. Hunt tes-
tified to a series of telephone calls concerning the subject of an employee club which
he received from Moss and from Fred and Joseph Glass. Among other things,
Joseph Glass stated that the Teamsters Union would "never run our organization,"
and Fred Glass promised to assist in setting up the club and promised benefits in the
form of days off and a percentage of sales.
Moss denied that he himself made any suggestion that the employees form their
own club or union and denied making any promises or offers to employees in that
regard. He testified that the first suggestion of an inside club which he heard was
made around May 4 or 5 by an inspector of the Independent Dairy Association,
who had come to the plant.4 Moss admitted that the subject came up frequently
after that (among the nonstrikers), and that on one occasion he informed striker
Richard Dell that the plant men were going to form a club and suggested that the
strikers come into it. Moss specifically denied discussing an employee club with
Hunt, but did not refer to Kilbourne's testimony.
Fred Glass denied that he ever proposed to any of his employees that they form
a club and denied having any discussion with employees on the subject, except that
Richard Dell called him one night to suggest that Glass form an employee club to
offset the Teamsters. Glass denied making any offers or promises or threats either
during or since the strike either in connection with such a club or otherwise.
Joseph Glass denied making any promises of a shorter workweek or of more pay
or benefits, but his testimony contained no reference to the forming of an employee
club and no denial of the testimony of Hartman and Hunt that he made such a
suggestion to them.
As is seen, four employee witnesses testified to a series of suggestions from three
different representatives of management concerning the setting up of an employee
club. Moss admitted making the suggestion to one of the strikers and Fred Glass
admitted that the subject came up, though at the instigation of the employee. Joseph
Glass made no denial of the opposing testimony that he suggested the formation
of such a club. The partial admissions and the failure to deny by Respondents'
witnesses thus tendered to confirm the cumulative testimony of the General Counsel's
witnesses, which, by reason of the number and similarity of the incidents testified
to (showing Respondents' representatives to be engaged in parallel courses of con-
duct) may be regarded as mutually corroborative. The fact that nonstriking em-
ployees attributed no such suggestions to Respondents and were themselves also
active in attempting to form an inside organization does not avail Respondents in
view of the weight of the evidence that they were also actively involved.
Under all the circumstances I credit the testimony of the General Counsel's
witnesses as to the statements and promises made by Moss and by Fred and Joseph
Glass in attempting to induce the employees to form an employee club.
The General Counsel also offered testimony concerning threats of violence made
by Moss to certain strikers, which were repeated by Joseph Glass at the picket line.
The evidence in its entirety showed, however, that Moss' statements were not made
in relation to the picketing or to any other protected activities, but to reports which
he had received concerning alleged threats and threatening conduct by strikers or
union representatives which were directed at members of Moss' family and at
members of a church congregation which Moss served as pastor.
Concluding Findings
I conclude and find from the foregoing evidence that Respondents interfered with,
restrained, and coerced employees in the exercise of rights guaranteed in Section 7
of the Act by their following conduct:
Interrogation of employees concerning their union membership, the signing of
union cards,s the instigator of the organizational activity, and concerning their other
union activity.
Threatening to close or shutdown the business before they would recognize the
Union.
A There was testimony to similar effect by employee Richard Johnson, who testified that
he took the lead during the strike in attempting to form such a club and discussed it
with some of the strikers.
6 Joseph Glass' explanation that he was checking only on the question of the Union's
unsupported claim of majority was emphatically refuted by the full picture of Respondents'
unlawful conduct as herein found.
MILLER ROAD DAIRY, A CO-PARTNERSHIP 223
Attempting to induce employees, with their assistance , to form an inside union,
and offering and promising benefits for that purpose.
D. Discrimination
1. Fehr's discharge
The General Counsel 's evidence may be briefly summarized as follows:
Delano Fahr was employed for around 9 weeks 'as a route driver before his dis-
charge on April 27 . He was one of the six drivers who attended meetings with the
Teamsters and who signed an application card.
Fahr worked under the immediate supervision of Lynn, who testified that he found
Fahr's work to be satisfactory. Both Fahr and Lynn testified that around April 24
or 25, Fred Glass informed Fahr that because business was down on all the routes,
Fahr's route was to be discontinued , but Glass offered to use Fahr in the cooler part
time and as a part-time route driver , explaining that Respondents had gone to some
expense to break Fahr in and preferred to retain him instead of laying him off or
letting him go. Nothing was said in criticism of Fahr's work at the time. Fahr
accepted the offer, though there was no definite agreement as to when the change
would be made.
As previously found (section C, supra), the Union's demand for recognition on
the morning of April 27 was followed immediately by Fred Glass' attempts to ascer-
tain who was responsible for the union activity, his reference to Fahr's membership
in Teamsters during a previous employment, and his comment that he had had no
union troubles until Fahr came there.
When Fahr returned from his route on the 27th, Glass discharged him in the
presence of Lynn and an office employee, stating that it was because Fahr was losing
business and was not taking care of his route properly (i.e., that he was leaving
too much bad, scrap, or outdated milk). Glass also questioned Fahr about whether
he had signed one of the union cards.
The union representatives heard of Fahr's discharge on the evening of April 27
and arranged a meeting of the employees for the next morning near the dairy. After
discussing the subject of the discharge, the employees agreed that they would strike
in protest, but first the union representatives (Ted LaBrecque and John Adair) were
to attempt to have Respondents reinstate Fahr voluntarily.
Adair and LaBrecque went to the dairy and inquired of Fred Glass the basis of
Fahr's discharge. Glass stated that it was for excessive stale products on his route,
and after some discussion Adair suggested that Fahr be brought in to hear his side
of the matter. At that point Moss came in, intervened in the discussion, stated that
Respondents would not negotiate to reinstate Fahr, and ordered the union repre-
sentatives to get out.
The picket line was set up immediately afterward, with the six union members par-
ticipating. The strike continued until May 12, after which all the strikers applied
for reinstatement.
The foregoing summary of the General Counsel's evidence (including the sum-
mary in section C, supra) is sufficient without discussion or analysis to establish,
prima facie, that Respondent discharged Fahr because of his union membership and
activities and to discourage the organization of the employees by Teamsters.
We turn now to Respondent's evidence to determine whether it was sufficient to
overcome that prima facie case and to establish Respondents ' defenses that Fahr was
in fact discharged for the reasons which Fred Glass assigned at the time of the
discharge.
Respondents' case was based largely on Glass' testimony that Fahr's performance
had been unsatisfactory for several weeks, that Fahr had a deplorable record for
leaving sour and scrap products and for failing to pick up outdated products, that
those derelictions had caused the loss of a valued customer (Brisbin's market) around
March 21, and was otherwise causing a diminution of business on Fehr's route.
Glass also testified that shortly after the loss of the Brisbin account, he directed Lynn
to discharge Fahr, and that although he was surprised to find after returning from a
vacation that Fahr was still working, he agreed to give Fahr another chance. Finally,
Glass testified that on April 26 he made a further survey of Fahr's route and found
that Fahr had failed to pick up substantial quantities of outdated and spoiled products.
Testifying at first that he talked with Fahr when he came in off his route, Glass testi-
fied later that he was unable for some reason to see either Fahr or Lynn that afternoon,
but that he directed the Company's auditor to prepare Fahr's final check and that he
also informed another office employee, as well as his father and his brothers, that he
was discharging Fahr. None of those persons was called to corroborate the latter
testimony.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. Glass continued that though he got up early the next morning he missed Fahr, but
followed him out on the route (before the arrival of the union representatives) and
gave him instructions about picking up the old products . However, Glass did not tell
Fahr he was discharged , but told him to go ahead and finish his route.
Richard Johnson testified that on Thursday , the day before the strike (i.e., the
27th ), he heard Glass "chew out" Fahr when he checked in, but that , of course, was
just before the actual discharge . Leonard Raynak, who had broken Fahr in on his
his route, testified in general to Fahr 's shortcomings as a route man, but his testi-
mony obviously related to a period early in Fahr 's employment . Moss also testified
concerning complaints from customers on Fahr's route concerning sour products.
Gerald Brabb testified that during the course of the last sales meeting before the
strike (which he was able to fix only as on a Monday), Fred Glass spoke critically of
finding stale and bad merchandise on Fahr 's route, but Brabb could remember no
statement made by Glass during or shortly before that meeting that he had instructed
Lynn to discharge Fahr. In the face of repeated questioning on the same point,
Brabb's testimony was that the only reference to discharge was made in a conver-
sation with Lynn when Lynn informed him that Fred Glass had in mind dissolving
Fahr's route and letting him go and when Lynn discussed with Brabb the possibility
of giving up part of his own route to build up Fahr's sufficiently to retain him. The
entire context of Brabb's testimony showed that that conversation occurred in con-
nection with the working out of the ultimate arrangement under which Fahr was to be
given other work , discussion of which Brabb also heard and apparently participated in.
There was also testimony by both Brabb and Richard Johnson concerning state-
ments which Fahr made separately to them concerning Glass' offer of the combination
inside-outside job, in which Fahr expressed distaste for such a job and indicated the
possibility that he would not accept it. That testimony was plainly irrelevant to the
issue of the discharge ( except as corroboration of the General Counsel 's evidence that
the offer was in fact made ), particularly in view of undenied evidence that Fahr
accepted Glass' offer when it was made.
Any findings made on Respondents ' evidence must turn largely on the credibility of
Fred Glass. On that score , Glass ' demeanor and manner of testifying , including his
quick and repeated shifts in testimony ( shown by the record) as to times , dates, and
other details, when made aware of inconsistencies and conflicts , tended to his dis-
credit. Furthermore, much that he testified to in denigration of Fahrs' performance
was set at naught not only by Lynn's testimony that Fahr's work was satisfactory,
but by his offer of other work to Fahr on April 24 or 25 and by the reasons which he
then gave for retaining Fahr. But ignoring that evidence (which was corroborated
by Respondents ' witnesses ) Glass came forward with the claim that he went out again
on Fahr's route both on the 26th and 27th and that he actually announced to six
persons on the afternoon of the 26th that he was discharging Fahr. Not only was
no corroboration offered of the latter testimony , but it was plainly inconsistent
with Glass' other testimony that though he went to the trouble of running Fahr down
on the morning of the 27th , he did not tell Fahr that he was discharged.
Glass' vulnerability as a witness was further exposed by impeachment through dis-
interested witnesses on a matter which Glass emphasized as demonstrative of Fahr's
incompetence, i.e., the loss of the Brisbin Market business . Lynn 6 testified that he
checked with Mr. Brisbin at the time concerning the reason the market was chancing
dairies and that Brisbin informed him that he quit Respondents because of unfulfilled
promises which Fred Glass had made , and that it was not due to Fahr, who had left
no more bad products than Maurice Glass before him. Mrs. Brisbin , called by the
General Counsel as a rebuttal witness, testified that the decision to change dairies
was made because of dissatisfaction with Respondents ' service before Fahr was put on
the route , that their complaints related to an earlier period when Maurice Glass was
on the route , and that Fred Glass also failed to "make right" his promise concerning
the lowering of her prices to meet a price-cutting competitor.
For the foregoing reasons I do not credit Glass' testimony where it is in conflict
with the testimony of the General Counsel 's witnesses , and I find that Respondents'
evidence was not sufficient to overcome the General Counsel 's prima facie case as
summarized above.
Considering the evidence in its entirety , it is plain that Respondents had considered
Fahr to be an unsatisfactory route driver and that sometime in March Fred Glass
6 Though Glass testified that he discharged Lynn because of failure to cross the picket
line , Respondents ' counsel claims no bias or animus on Lynn's part, and there was no
indication of any in his testimony , which I credit fully.
MILLER ROAD DAIRY, A CO-PARTNERSHIP 225•
had ordered Lynn to discharge him. But Fahr was successful in surviving the new ,
chance which Glass gave him , and finally, when business dropped on all the routes-
to the point where a dissolution of Fahr's route was being considered , Respondents.
worked out an arrangement under which Fahr was to be retained because of their
investment in him as a trained employee . If Respondents seriously considered Fahr
to be an unsatisfactory employee, they signally failed to take advantage of the
readymade opportunity to eliminate him. Yet , a short 2 or 3 days later, when
confronted with the Union 's demand for recognition , Respondents effected the
discharge suddenly and without warning and during a course of conduct in which,
Fred Glass expressed belief that it was Fahr who was at the root of his "union
troubles."
I therefore conclude and find, on the record as a whole, that by discharging Fahr
on April 27 , and by thereafter failing and refusing to reinstate him, Respondents.
engaged in discrimination to discourage membership in Local 332 of Teamsters.
I also conclude and find that by striking in protest of Fahr's discharge , the employees.
engaged in an unfair labor practice strike.
2. The failure to reinstate the strikers
On May 15, Respondents received from Richard Dell, Frederick L. Hunt , Phillip,
E. Rosser, and Richard Hartman letters which "unequivocally " demanded reinstate-
ment , and on May 21, they received a similar letter from Robert Kilbourne. As
unfair labor practice strikers they were , of course , entitled to be fully reinstated,
upon application . Hunt, Rosser, and Kilbourne have not been reinstated. Dell
and Hartman were reinstated on May 15, but were informed by Fred Glass that they
were new employees . Testimony by Joseph Glass and Frederick Glass that rein-
statement was offered to Hunt ( on the night of July 6, as fixed by Fred Glass) and
was refused , was not denied by Hunt.
I conclude and find that by failing to reinstate Hunt and Rosser on May 15 and
Kilbourne on May 21, and by failing to reinstate Dell and Hartman fully and un-
conditionally , Respondents engaged in discrimination within the meaning of Section
8(a)(3). Fahr, who was discriminatorily discharged before the strike, was entitled'
to reinstatement , of course , at all times after his discharge . I find further that Hunt
was offered and that he refused reinstatement on July 6.
III. 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 affirma-
tive action of the type conventionally ordered in such cases as provided in the Rec-
ommended 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.
Since Respondents ' dissolution of Fahr's route , decided upon before his discharge„
Was subsequently effected , I shall recommend that Fahr be offered reinstatement
to the combination inside-outside job (or • its substantial equivalent ) which was
offered to and accepted by him before his discharge . Since the evidence otherwise
showed that Respondents may be operating with fewer route drivers than it employed
at the time of the strike and since there may therefore be insufficient work for all
the striking employees whose reinstatement is recommended herein, even after dis-
missal of all new employees hired on and after April 28, I shall recommend that
Respondents establish a preferential list of the usual type ( see, e.g., Jerry J. Buckley,
d/bla Buckley Development Company, et al., 126 NLRB 1171 ) for all employees
for whom employment is not immediately available.
Upon the basis of the above 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 their employees in the exercise
of rights guaranteed in Section 7 of the Act, Respondents engaged in unfair labor
practices proscribed by Section 8(a) (1).
2. By discharging Delano Fahr on April 27, 1961, and by thereafter failing to re-
instate him, Respondents engaged in discrimination to discourage membership in the
Union and thereby engaged in unfair labor practices proscribed by Section 8(a)(3
and (1 ) of the Act.
634449-62-vol. 135-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By failing and refusing to reinstate Frederick L. Hunt and Phillip E . Rosser
on May 15 and Robert Kilbourne on May 21, and by reinstating Richard Dell and
Richard Hartman on May 15 as new employees , Respondents engaged in discrimina-
tion to discourage membership in the Union , thereby engaging in unfair labor prac-
tices proscribed by Section 8(a) (3) and ( 1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Respondents have not engaged in unfair labor practices within the meaning
of Section 8(a) (5) of the Act by refusing to bargain collectively with the Union.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Frederick O. Glass,
Joseph E . Glass, Maurice Glass , and Roswell C. Glass, co-partners doing business
as Miller Road Dairy, their agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Local 332 , International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Ind., or in any other labor
organization of their employees, by discharging or failing or refusing unconditionally
to reinstate employees , or in any other manner discriminating in regard to their
hire or tenure of employment , or any term or condition of employment.
(b) Coercively interrogating employees concerning their union membership, the
signing of union cards, the identity of the instigator of the organizational activities,
or concerning other union activities.
(c) Threatening to close or shut down the business because of union activities.
(d) Inducing or attempting to induce -their employees to form, with Respondents'
assistance, an inside union, and offering and promising benefits to their employees
for that purpose.
(e) In any other manner interfering with, restraining, or coercing their employees
in the exercise of their rights to self-organization, to form, join or assist Local 332,
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 and
all such activities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment
as authorized in Section 8(a)(3), of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action:
(a) Offer to Delano Fahr immediate and full reinstatement to the position which
was offered him on or about April 24, 1961, or to a substantially equivalent position,
without prejudice to 'his seniority or other rights and privileges, and make him whole
for any loss of pay which he may have suffered by payment to him of a sum of money
equal to that which he normally would have earned from the date of the discrimina-
tion against him to the date of the offer of reinstatement or his placement on prefer-
ential hiring list as provided below, less his net earnings during said period (Crossett
Lumber Company, 8 NLRB 440), said backpay to be computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
(b) Offer to Richard Dell, Phillip E. Rosser, Richard Hartman, and Robert Kil-
bourne immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and privileges, and
make each of them whole, in the manner provided in the -foregoing paragraph, for
any loss of pay which he may have suffered as a result of the discrimination against
them.
(c) Make whole Frederick Hunt in the manner provided in the foregoing para-
graphs for any loss of pay which he may have suffered as a result of the discrimina-
tion against him, from May 15 to and including July 6, 1961.
(d) In effecting the reinstatements herein ordered, Respondents shall dismiss, if
necessary, all new employees hired on and after April 28. If there is not then suffi-
cient work available for the remaining employees and those to be offered reinstate-
ment, all available positions shall be distributed among them, without discrimination
against any employee, in accordance with the system of seniority or other non-
discriminatory practice heretofore applied by Respondents in the conduct of their
business. Respondents shall place those employees, if any, for whom no employ-
ment is available after such distribution on a preferential list, with priority in ac-
cordance with such system of seniority or other nondiscriminatory practice here-
MILLER ROAD DAIRY, A CO-PARTNERSHIP 227
tofore applied by Respondents in the conduct of their business , and thereafter offer
them reinstatement as such employment becomes available and before other persons
are hired for such work.
(e) 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 records necessary to analyze the
amounts of backpay due and the rights of Delano Fahr , Richard Dell , Phillip E.
Rosser, Richard Hartman , Robert Kilbourne , and Richard Hunt under the terms
of this order.
(f) Post in their offices and plant at Flint, Michigan , copies of the notice at-
tached hereto marked "Appendix A." Copies of said notice , to be furnished by the
Regional Director for -the Seventh Region , shall, after being signed by Respondents'
representative , be posted by Respondents immediately upon receipt thereof and main-
tained by them for 60 consecutive days thereafter , in conspicuous places, including
all places where notices to employees are customarily posted . Reasonable steps
shall be taken to insure that said notices are not altered , defaced, or covered by any
other material.
(g) Notify the Regional Director for the Seventh Region , in writing , within 20
days from the date of receipt of this Intermediate Report , what steps Respondents
have taken to comply herewith.
The complaint is hereby dismissed insofar as it alleges a violation of Section
8(a)(5) of the Act.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board , and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Local 332, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America , Ind., or any
other labor organization of our employees , by discharging them, failing and
refusing unconditionally to reinstate them, or in any other manner discriminat-
ing in regard to their hire and tenure of employment or any term or condition
of employment.
WE WILL NOT coercively interrogate employees concerning their union mem-
bership , the signing of union cards , the identity of the instigator of the organi-
zational activities , or concerning other union activities.
WE WILL NOT .threaten to to close or shut down our business because of union
activities.
WE WILL NOT induce or attempt to induce employees to form, with our
assistance , an inside union , nor will we offer or promise benefits to our employ-
ees for that purpose.
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
said Local 332, 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 in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer to Delano Fahr immediate and full reinstatement to the posi-
tion which he offered him on or about April 24, 1961 , or to a substantially
equivalent position , without prejudice to his seniority or other rights and priv-
ileges, and make him whole for any loss of pay he may have suffered as a
result of our discrimination against him.
WE WILL offer to Richard Dell, Phillip E. Rosser, Richard Hartman, and
Robert Kilbourne immediate and full reinstatement to their former or substan-
tially equivalent positions , without prejudice to their seniority or other rights
and privileges, and make each of them whole for any loss of pay he may have
suffered as a result of our discrimination against him.
WE WILL make whole Frederick Hunt for any loss of pay which he may have
suffered as a result of our discrimination against him from May 15 , 1961, to and
including July 6, 1961.
228 DECISIONS, OF NATIONAL. LABOR RELATIONS BOARD
All our employees are free to become or to refrain from becoming members of
the above Union, or any other labor organization , except as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure-
Act of 1959.
FREDERICK 0. GLASS, JOSEPH E . GLASS, MAURICE
GLASS AND ROSWELL C. GLASS , D/B/A MILLER
ROAD DAIRY, A CO-PARTNERSHIP
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.
Charlotte Union Bus Station , Inc., Harold E. Aldridge, Indi-
vidual, and General Services, Inc. and Amalgamated Associa-
tion of Street , Electric Railway and Motor Coach Employes
of America, Local Division 1437, AFL-CIO. Case No. 11-CA-
1782. January 12, 1962
DECISION AND ORDER
On October 25, 1961, Trial Examiner John H. Dorsey issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel and the Charging Party filed excep-
tions to the Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following modifications.
The complaint alleged, inter alia, that Respondent Charlotte Union
Bus Station, Inc., herein called Respondent Station, Respondent Gen-
eral Services, Inc., herein called Respondent Services, and Respondent
Harold E. Aldridge, herein called Respondent Aldridge, jointly and
severally violated Section 8 (a) (1) of the Act by interrogating em-
ployees concerning their union activities. As the record contained
no evidence that Respondent Services or Respondent Aldridge en-
1 The Charging Party's request for oral argument is denied as, in our opinion, the-
entire record in this case adequately presents the issues and positions of the parties.
135 NLRB No. 23.