Oates Bros. Fruit & Produce Co.

National Labor Relations Board - Board Decisions

Jun 29, 1971

191 N.L.R.B. 736 (N.L.R.B. 1971)

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oates Bros. Fruit & Produce Co. and Cooks and Pas-
try Workers Local No. 26, affiliated with Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO. Case 14-CA-5879
June 29, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 17, 1971, Trial Examiner Ramey Dono-
van issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative ac-
tion, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged
in other unfair labor practices alleged in the complaint
and recommended dismissal of such allegations. There-
after, the General Counsel filed timely exceptions to the
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, the brief, and the
entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Oates Bros. Fruit & Produce Co., St. Louis,
Missouri, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.2
IT IS HEREBY FURTHER ORDERED that the com-
plaint herein be, and it hereby is, dismissed insofar as
it alleges violations not found above to have been com-
mitted.
' We hereby correct the Trial Examiner's inadvertent error in stating that
the charge herein was filed on November 13, 1970 It was the amended
charge that was filed on that date. The initial charge was filed October 13,
1970
' In fn 63 of the Trial Examiner's Decision we hereby correct his inad-
vertent designation of "Region 9" so as to read "Region 14 "
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN, Trial Examiner: The charge was filed
on November 13, 1970, by Cooks and Pastry Workers Local
No. 26, affiliated with Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, herein the
Union, against Oates Bros. Fruit & Produce, Co., herein
Respondent or the Company. The complaint issued under
date of November 24, 1970. Alleged in the complaint as
violations of Section 8(a)(1) and (3) of the Act are various
actions and statements of Respondent and the termination
and layoff of eight named employees on three specified dates
in September, October, and November 1970 and the failure
to recall such employees thereafter. In its answer, Respond-
ent denies the commission of the alleged unfair labor ' prac-
tices.
The case was tried in St. Louis, Missouri on January 25,
1971.
I JURISDICTION
Respondent is a Missouri corporation with its office and
principal place of business in St. Louis, Missouri. It is en-
gaged in the manufacture, sales, and distribution of salads,
potatoes, food preservatives, and related products.
During a representative fiscal year, Respondent, in the
course of its business operations, had sales, both retail and
nonretail, in excess of $500,000, and purchased and caused to
be transported and delivered at its St. Louis store, lettuce,
potatoes, cabbage, and other goods and materials valued in
excess of $360,000; of this amount, goods and materials
valued in excess of $50,000 were transported and delivered to
the St. Louis store and received from other enterprises en-
gaged in the nonretail sale of fruits and vegetables located in
Missouri, and these other enterprises had received the said
goods and materials delivered to them directly from outside
Missouri.
Respondent is an employer engaged in commerce within
the meaning of the Act.
The Union is a labor organization within the meaning of
the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
John Oates is president and owner of Respondent and he
testified that he has been in the business for 27 years. His son,
Eugene (Gene) Oates, serves as general manager and three or
four other Oates' children work for the company in a full- or
part-time capacity.
About a year or more before the 1970 events with which
this case is concerned, Thomas Morris, a union organizer,
asked John Oates if he could go into Respondent's plant and
talk to the girls. Morris had identified himself as a union
organizer. John Oates, in effect, denied Morris' request and
told him that if he wanted to have a meeting with the em-
ployees that was up to Morris and not up to Oates. This is
the only background evidence in the case and there is no
evidence of either a union organizing effort at that time or any
antiunion response by Respondent either as, a precautionary
rejoinder to a possible union campaign after Morris' visit or
as a rejoinder to any organizing effort. The materiality of the
incident, such as it is, is that John and Gene Oates were aware
that Morris was a union organizer.
The events of the instant case commenced on Tuesday,
September 29, 1970. On that day, at about 1:30 p.m., Gene
Oates, as was his daily custom, was eating lunch in a restau-
rant and bar that was located next door to Respondent's place
of business. The restaurant was fairly crowded at the time.
About 25 feet from where Oates was sitting, he saw Morris
at a table with Erma Smith and Rose Woods, two of Re-
191 NLRB No. 120
OATES BROS FRUIT & PRODUCE
spondent's employees. Oates came over to the table and asked
Morris, could he "help" him. Morris, said, "No thank you,
I was talking to the two young ladies." Oates said "Fine" or
said nothing further and returned to his own table, finished
his lunch, and left the restaurant. At the point when Oates
had gone over to Morris, the latter had started to introduce
himself to the two employees who evidently did not know
him.' According to Morris, after his brief conversation with
Oates and after Oates returned to his own table, Morris
finished introducing himself as a union organizer to the two
employees. Morris states that Oates left the restaurant about
5 minutes after he had spoken to Morris. Meanwhile, Morris,
after completing his introduction of himself to the two em-
ployees, "explained the setup" (evidently the advantages of a
union), asked them to sign union authorization cards, and
they each signed a card. The employees thereafter returned
to Respondent's plant.
Oates had been in the restaurant properly and pursuant to
his normal and customary habit of eating lunch there. He was
under no obligation to physically close his eyes or abandon
his lunch or to leave the restaurant as soon as he saw Morris
and the two employees. Since Morris had chosen to speak to
the two employees in a public restaurant, next door to the
plant, during the lunch hour, and since Oates was properly
and normally present, Oates, in our opinion, was free to eat
his lunch and observe those around him. If, in such course,
he saw initially that Morris and another man were apparently
introducing themselves to two female employees seated at a
table and later saw cards passed by Morris to the employees
and saw the latter write on such cards and hand them back
to Morris, such observation would not have been illegal if it
occurred during Oates normal eating of his lunch. Such an
event, although perhaps having the ingredients of covert sur-
veillance, semantically speaking, since the observation was
occurring without the awareness of those observed, might
have revealed more to Oates than what he actually did. But,
in our view, under the circumstances, it would not have been
illegal surveillance.
However, what Oates did, was to go over to the table of the
two employees, apparently almost at the point when Morris
and Ayers came to that table, i.e., when Morris was introduc-
ing himself to the two girls. Oates' presence and awareness of
the fact, that Morris and the two girls were conversing, or
were together, thus becomes manifest to all concerned. Oates
does not tell us why he went over and asked Morris, whom
he knew was a union organizer, whether he could "help" him.
Help him in what respect? If Morris had wanted to speak to
the Company or to ask something of the Company, he would
have gone to the company office. In fact, a year before, Morris
had done just that, as Oates was fully aware.
The General Counsel argues, in effect, that Oates' active
intervention, although limited from the conversation stand-
point, demonstrated an intention of, and was, interference in
the conversation between the organizer and the employees
and was to let the employees know that they were observed
to be with a union organizer and thereby inhibit any conver-
sation or receptivity to any union matter. It is argued there-
fore that this conduct constitutes' illegal surveillance in viola-
tion of Section 8(a)(1) of the Act.
We have stated the General Counsel's position, we believe,
in its strongest light. Since the few brief words uttered by
Oates were in themselves inconclusive, as was Morris' reply
and Oates' prompt departure from the employees' table, all
being in a very brief period, it is apparent the gravamen of
Oates' conduct, under the General Counsel's theory, is the
' A man named Ayres was with Morris. Ayres was not one of Respond-
ent's employees.
737
fact that Oates made the employees (and Morris) aware of (1)
Oates' presence and (2) of the fact that Oates saw them
engaged in some kind of conversation. Therefore, if such
conduct of Oates was illegal, it was making his presence and
awareness known to employees when they are joined in a
restaurant by a union organizer and are engaged in a three-
way conversation or where the organizer is speaking to them.
Assuming for the moment that such conduct was illegal,
the descriptive term, whether interference or surveillance, is
not of major importance.' If the crux of the alleged illegality
is as described in the preceding paragraph, then an order
prohibiting such conduct would be normally expected. Aside
from the formal language ordering cessation of interference
or surveillance, the specific import of such an order in the
instant case would mean that if you are a supervisor eating
in your customary restaurant next to the plant and you see
a union organizer at a table with one or more employees, you
should not speak to the ensemble or otherwise make the
group aware that you see them or are cognizant of their
presence. This for the reason that the gravamen of the inter-
ference or surveillance in the restaurant is the awareness on
the part of the employees that a supervisor has manifested
that he has seen them with an organizer and they are there-
fore inhibited in the exercise of their rights under Section 7
of the Act.'
We believe that the General Counsel's theory, as we have
stated it above, is probably at best technically correct, but on
all the facts of the restaurant episode, including the fact that
it took place in a public restaurant in which Oates was nor-
mally and properly present, the brevity of the incident, and
the brief banality of the few words exchanged, we are not
prepared to recommend that this incident be found to be a
violation of the law of the land. It is our opinion that the Act
contemplates and should contemplate worthier targets under
Section 8(a)(1).`
Returning once again to September 29, the evidence is that
the two employees, Smith and Woods, above-mentioned,
after finishing their lunch and after their restaurant conversa-
tion with Morris, including signing union cards, returned to
the plant. They punched their timecards and went downstairs
' Section 8(a)(1) proscribes interference, restraint, and coercion Surveil-
lance is a type of interference
' Some variations might arise (a) supervisor does not go to employees'
(with organizer) table but they see him and realize that being two tables
away and in his line of vision, he sees, will see, or has seen them unless he
is blind, (b) supervisor does not go to employees' table but waves to them
or to organizer, thereby indicating awareness of their presence; (c) same as
(b) but supervisor says hello or something else of an inconclusive nature, (d)
supervisor, in normal route to exit, passes employees' table and speaks, (e)
supervisor enroute to exit, detours from direct route so that he passes em-
ployees' table and he speaks to organizer briefly and inconclusively.
° Although the core of the theory of surveillance in the instant case is
Oates' brief visit to the other table, the General Counsel also argues that
since Oates was in the restaurant for 10 minutes he had the other table under
surveillance "since he did not testify that he did not keep them under
observation " Oates came to the other table as Morris was introducing
himself to the two employees since Morris states that he finished introduc-
ing himself after Oates left Morns also states that Oates then returned to
his own table and left the restaurant about 5 minutes after Oates had first
spoken to Morris. Apparently Moms, and probably the employees, ob-
served Oates after he left their table and then left the restaurant Since
Morris had to finish introducing himself to the employees, and then tell
them about the Union and what it could do for them, and perhaps answer
some questions, it seems likely that the card signing took place after Oates
had left the restaurant Also, Oates' table had been 25 feet away from the
other table in a crowded restaurant during the noon hour Observation of
anything but the identity of persons at the other table would have been
difficult.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to their place of works About 10 or 12 minutes later, accord-
ing to Smith, Gene Oates came downstairs and told Smith
and Woods to come upstairs and that they could take their
things with them. The two employees came up and stood
outside John Oates' office.
The principal witnesses as to what then occurred are Smith
and John Oates, although Gene Oates, who was present,
corroborates his father in substantial details.' Actually
Smith's and Oates' testimony is not in any substantial con-
flict, the differences being more in the area of details.
In order to understand the incident that occurred, it is
appropriate to describe that Respondent had previously re-
ceived an order from Allen Foods for 25 cases of 1-pound jars
of antioxident powder and 15 cases of 5-pound jars of powder.
Allen is a nationwide organization and has been a customer
of Respondent for 20-25 years. Respondent's employees fill
the jars from 100-pound sacks of powder and the same people
who fill the jars evidently label the jars, place them in boxes
or cases, and seal the cases for shipping. As far as appears
there are no employees who perform inspection work, i.e.
who check the finished article before shipment.
The above-described Allen order was filled and shipped by
Respondent. Allen received the order, accepted the 1-pound
jars part of the order but returned to Respondent the cases
of 5-pound jars as unacceptable.' John Oates testified that
when he opened the cases returned by Allen he found four
5-pound jars in cartons that contained six compartments or
spaces, two being unfilled;' he found approximately 20 jars
Smith testified that her work consisted of peeling potatoes , packing
powder (additives such as oxidents used in food preparations), washing
lettuce, cutting up celery and cabbage This is the typical work of the female
employees in this case. Such limited payroll evidence as there is, indicates
that they were paid $1 65 per hour and they generally work in the down-
stairs or basement area. Of the female employees who testified, Davis, a
witness for the General Counsel, and Sanford, a witness for Respondent, had
worked the longest, being from June and May 29, 1970, respectively. Smith
had worked since September 9, 1970. Woods was not a witness but she had
worked longer than Smith but how much longer does not appear She was
on the August payroll. The average number of employees for August and
September 1970, was 27; for October, 26 75; for November 25 50. John
Oates testified, in effect, that turnover of employees was high, "we had 82
people in a year's time in and out and I don't know their names "
As mentioned, Woods was not a witness. In fact, although a coactor
with Smith in all relevant events on June 29, she was not named in the
charge or complaint
The returned order was received by Respondent on September 29.
Describing the discharge, John Oates testified, without contradiction, that
" the order had just come back into the store, somebody called on the
phone and said that the delivery is down there and was returning half the
order, that they [Allen] wouldn't accept it. when the order came in [re-
turned] I upped it all open. . Rosie Woods and Erma Smith were the two
that accepted full responsibility because they had packed it . "
The invoice of the original order was no 12218 The record shows that
on a subsequent invoice, no. 12225, the 5-pound jar boxes "were repacked
and sent and delivered 9/30/70. ..
8 When the cartons or cases were returned by Allen, and John Oates
opened the cases and saw only 4 jars in the 6 compartment cases, he states
that he thought that this was the reason why Allen had returned the order.
This initial reaction was based on the fact that the original order and its
invoice, no. 12218, specified 15 cases "of four 5's", i.e, 15 cases, with each
four-compartment case containing four 5-pound jars. But the order when
received by Allen had consisted of six compartment cases but with only four
jars in each six-compartment case As Oates testified, "they [Allen] wanted
four, [four-compartment cases with four jars in each case] instead I [Re-
spondent] gave them [Allen] the six [Oates saw from the returned order that
his company had sent Allen six-compartment cases with four jars in each
and Oates initially thought that this was the sole reason why Allen had
returned the order] The quotation of Oates' testimony in the above preced-
ing sentence has been set forth and interpreted in context. Evidently based
on the above quotation of Oates' testimony, the General Counsel, mistak-
enly, we believe, states in his brief that " John Oates admits that he gave
with no labels and an equal number of jars on which the labels
had been placed sidewise, for a total of about a third of the
jars mislabelled (either no labels or improperly placed labels);
another third of the jars were only half full of powder. Ac-
cording to Oates, Allen has government orders and hospital
orders and the condition of the jars violated "the F.D.A. and
every thing else." Oates states that he felt the condition of the
order "looked like a plant", i.e., deliberate.
Smith testified that when she and Woods had reported
outside Oates' office on September 29, as described above,
pursuant to Gene Oates' direction, John Oates came out and
asked the two employees if they had packed this order, in-
dicating boxes of 5-pound jars that were there. Smith said,
yes, she had packed some of it.' According to Smith, Oates
pulled ajar out of one of the boxes and asked did the two girls
know that they were about to lose him a customer that he had
had for 25 years.10 Smith said, no, and "I explained to him
I didn't know how to pack the order.... " Smith said
"Mary" was supposed to help her." John Oates then said that
the order was messed up and that Smith and Woods should
get their things. Smith states that she asked Oates for another
chance "because I didn't know how to pack the order." Oates
refused and told Smith and Woods to leave. Smith accused
Oates of firing them not because of the order being messed up
but because of the Union and "I [Smith] said, I am not
thinking of the Union and I am not joining the Union." The
two employees then received their checks and left."
The Examiner is unable to conclude that the General
Counsel has sustained the burden of proof with respect to the
discharge of Smith on September 29. The restaurant incident
warrants the inference that, having observed Smith and
Woods in the company of, and in conversation with, Morris,
the union organizer, Respondent could have believed and
probably did believe that the two employees were associated
with the Union or potential union activity. The evidence is
doubtful and is not clear that Oates saw the two employees
sign union cards" and the fact that Morris observed Oates
them [Smith and Woods] the cartons containing six spaces (Tr 136), and
apparently their instructions had been to pack four jars to a carton " Neither
Smith nor any other witness contend that John Oates gave them the particu-
lar cartons in question Smith admitted that she did not know how to pack
the order and did not know that an order specifying 4 jars per case should
be packed in a 4 compartment case and not in a 6 compartment case
Smith testified that she did not hear what Woods said. John Oates
testified that both girls acknowledged that they had packed the order Gene
Oates testified to the same effect.
'° Smith testified that she could see that the jar that Oates had pulled
from the box was not full and that "it was in the wrong box " She also
testified, "I didn't know they had a special box to put it in "
'' Smith states that "Mary" was Oates' daughter. This is the sole mention
of "Mary" by any witness regarding this matter and is otherwise un-
developed and explained Gene Oates testified that his sister Mary answered
the telephone at the plant.
U Smith had also testified at the hearing that she had worked on the
1-pound jars part of the order and had helped Woods, a more experienced
employee, on the 5-pound jars. At some point near the completion of the
order, Gene Oates had given Woods another assignment and Smith finished
the work alone; with the exception of some help from Slaughter for 2 hours.
Patricia Slaughter, a General Counsel witness, testified that she had helped
Smith for 2 hours on packing the above order on which, Slaughter says,
Smith had been working for 2 days. Slaughter was asked at the hearing
whether she had noticed that some of the jars were mislabelled or that
six-compartment boxes had only four jars. She answered affirmatively but
said that she did not know that the order would be delivered in the condition
aforementioned and simply did what she was told since she was only helping
out Smith and that for a brief period. Oates testified that he had no knowl-
edge that Slaughter had worked on the order and if he had known he would
have dismissed her also.
" Our conclusion as to Smith's discharge would be the same whether or
not Respondent suspected or saw her sign a card
GATES BROS. FRUIT & PRODUCE 739
leave the restaurant 5 minutes after Oates spoke to Moms
indicates that Morris may well have deferred producing the
cards for the two employees until he had satisfied himself of
the whereabouts and the departure of Oates." Under the
circumstances, however, it is perhaps sufficient to conclude
that Respondent could have believed that the two employees
seen with Morris were in some degree associated with the
Union and union activity.
But Employer knowledge of union activity is not sufficient,
in our opinion, to sustain the allegation as to Smith's illegal
discharge. The legitimate reason for the discharge, the clear
mishandling of the Allen order, has not been shown to be a
pretext. Of course an employer can give an employee another
chance or be tolerant of error but he is not required to and
it is not abnormal for him to fail to do so in circumstances
such as here appear. There is no showing that Respondent
had tolerated comparable work deficiency on the part of other
employees in the past and, in our opinion, there is no reasona-
ble basis to conclude that, but for the restaurant incident,
Smith (and Woods) would not have been discharged for mess-
ing up the Allen order. Dismissal of the allegation as to Smith
is recommended."
Shortly after being discharged, Smith and Woods, on the
same day, came back and told other employees in the plant
why they were discharged." Slaughter, who was discharged
later on November 6, 1970," and who is an alleged dis-
criminatee, testified that on the day that Smith and Woods
had been discharged, September 29, John Oates came down-
stairs to the basement where the girls worked. Slaughter
states that he spoke "to the whole group." She states that
Oates told them that "he didn't fire the girls [Smith and
Woods] because they were talking to the union men but
because they messed up an order."16 Oates also told the group
1° After Oates left the restaurant, which was within 5 minutes of where
Oates first spoke to Morris, the latter finished introducing himself to Smith
and Woods, explained the advantages of the Union, and not until then,
probably, were cards produced and signed
11 On its face, the timing gives cause for suspicion since the restaurant
incident on September 29 was followed by the discharge that same after-
noon. However, the evidence indicates that it was not until that day that the
ill-packed Allen order was returned and brought to Respondent's attention.
Perhaps Respondent welcomed being presented with a legitimate cause for
discharge but, in our opinion, the ill-packing of the order was the cause of
the discharge and there is nothing to indicate that, with or without union
activities, Smith and Woods would not have been discharged for their role
in packing the Allen order.
11 The record is not clear as to what they said but since Smith, in the
conversation with John Oates in which he discharged her and Woods, had
ended up by asserting that they were being discharged "because of the
Union," she probably thereafter told the other girls how she and Woods had
met and talked to Morris in the restaurant and then had been discharged
shortly after their return to the plant and that the discharge was due to their
meeting with the union organizer.
" She was first employed about September 7, 1970
If an employer has discharged employees for union activities as is
alleged as to Smith, the purpose is presumably twofold- (a) to nd the em-
ployer of union supporters and eliminate them as potential voters in any
Board election or as support for potential union claim of majority represen-
tation; (b) to use the discharge of the employees to chill union activity or
support on the part of the remaining employees. Since at the time of the
discharge of the employees, there were 27 employees in the unit, purpose
(a), above, would not be the paramount purpose since the elimination of one
union card or one vote would scarcely be determinative. Purpose (b), above,
is therefore presumably of great importance. Purpose (b) is served by the
employer making no comment to the remaining employees about the cause
of the discharge but to allow the remaining employees to get "the message,"
particularly where there is talk going around, as here, that the discharge was
for union activity; or, the employer may subtly hint that the discharges were
for union activity thus making sure that the employees remaining get "the
message" intended by purpose (b). But it is scarely consistent with (b) and
the chilling of union activity for the employer to affirmatively assure the
that, if the employees did get a union, it would be a lot of
money wasted, that they would have to pay to join the union
and pay dues and the company was not large enough for a
union and the business was kind of bad. Oates went on to say
that if a union came in, he "would have to shut the place
down because the business was too small for a union."
On examination by Respondent's counsel, Oates was
asked:
Q. On September 29, 1970, you are charged with
threatening the employees you would close the business
if they selected a union to represent them in collective
bargaining?
A. No, sir. [I did not do or say that?]
A few questions later, the following question was asked and
answered:
Q. Did you ever present yourself before the employees
and talk about a union one way or the other?
A. No, sir, I never did. The only time was when this
question came up in the newspaper.... I called a meet-
ing. 19
In addition to Oates, several employees, called as witnesses
by Respondent, testified that at no time had they heard any
discussion about the Union by Oates.
Slaughter, who testified as previously described regarding
statements made by Oates, did not have a photographic mem-
ory and here testimony did not emerge in neat 1-2-3- order.
At various intervals her memory was apparently exhausted
and, based on an affidavit that Slaughter had previously
given, the General Counsel refreshed the witness' recollec-
tion. On cross-examination, Respondent's counsel, who had
been furnished a copy of Slaughter's affidavit by the General
Counsel, queried the witness about statements in the affidavit.
Her testimony on direct examination was essentially affirmed
on cross-examination. For instance, Slaughter, as we have
seen, testified on direct examination, that, on September 29,
Oates had said inter alia, that if a union came in the plant he
would have to close the plant because it was too small for a
union. On cross-examination, Respondent's counsel asked:
Q. You also state in here [in the affidavit] that he
[Oates] said that if he had to get a union in there, he
would just have to close the place down because it is just
too small, is that correct?
A. Yes.
[Counsel then went on to elicit testimony as to some
other things that Oates had not said.]
The Examiner believes that Slaughter was a basically hon-
est witness and we credit her testimony aforedescribed. We
find that Oates' statement to Slaughter and a group of em-
ployees on September 29, 1970, that, if a union came in, he
would have to close down the plant because the plant was too
small fora union, constituted a clear threat of economic
reprisal and detriment to employees if the plant became or-
ganized by the union. As such, the statement constituted a
violation of Section 8(a)(l) of the Act.Z°
Willie Drane worked for Respondent from October 6 to
October 23, 1970, when she and three other employees were
remaining employees that the discharges were not for union activity but
were because the discharged employees had messed up an important order
" When the General Counsel issued the instant complaint, a brief de-
scription of the matter appeared in a newspaper on December 3, 1970 This
is when, and, according to Oates, the only time that he spoke to employees
about the Union
10 Such evidence, of course, had been considered with respect to the
reason for the alleged Section 8(a)(3) discriminations, including the dis-
charge of Smith, above.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laid off.24 Like the other girls in this case, Drane worked in
the basement peeling potatoes and related tasks. Drane tes-
tified that 2 days after she started work, John Oates came
downstairs and spoke to a group of employees.22 In the group,
according to Drane was herself, "Sarah,"23 and Evelyn
Roles,24 and some others whose names Drane did not recall.
According to Drane, Oates said that he heard that some of
the girls "were talking about a union and he said that he
didn't need a union because all he did was take our city tax
and social security out and if he would hear anybody was
talking about the union, especially the new girls, he would
automatically lay us off and let us go."25
Sarah Blake was a member of the instant union when she
was formerly employed at the Mayfair Hotel. Although she
had only paid dues once and was an employee and a union
member at the Mayfair only a short time, she evidently con-
sidered herself a union member for about 4 years and at the
time she secured employment with Respondent. She so stated
in her testimony. The witness also testified that Respondent
did not know that she was a union member, as abovede-
scribed, when she was hired. On her first day at work for
Respondent, October 6, 1970, Blake said that she asked the
other girls, unidentified in the record, whether they had a
union at the plant. Blake states that they replied that two girls
had been fired for joining the Union. Two days later, October
8, Blake states that John Oates came to the basement and
spoke to the girls. Blake testified that, in addition to herself,
those present were Willie Drane and two other girls, one who
Blake thought ("if I am not mistaken") was called "Nel," and
the other was Evelyn Roles.26 According to Blake, Oates said,
"Girls, especially you new girls, we do not need a union and
if I find out that you have signed a union card you will be laid
off. I don't take anything out of your checks but city taxes and
social security and before we have a union I will just close
up .
Blake states that she did not go to work on October 23,27
but that she received word that she had been laid off. The one
who told her was Patricia Slaughter who was still working
and not laid off until November 5 or 6. Slaughter reported to
Blake, according to the latter, that Oates said that Blake was
laid off but that if he needed Blake thereafter he would call
her.26 It is not clear whether Blake received this word from
Slaughter on Thursday, October 22, or on Friday, October
23. It is clear that she did not work Friday so the latest time
at which she probably received the message was Thursday
evening or Friday morning . It is unlikely that she went to the
plant Friday morning prepared to work because , if she did,
it is logical that she would have learned of her layoff from
Oates and not Slaughter.
In any event , Blake states that she telephoned John Oates
on Monday, October 26 , between 7:30 and 8 a.m. The conver-
sation, as described by Blake, was:
I told him this is Sarah and he said , yes. He said, "I
warned you girls that if you all signed union cards that
you would be laid off, and if I need you I will call you."
Q. Is that all he said?
A. Yes.
Q. What did you say to him?
A. I said thank you and hung up.
Oates denied Blakes' testimony regarding what occurred
on October 8, above. With respect to her testimony as to her
telephone call with Oates , Oates stated that her testimony
was an "absolute lie" and that "there was no phone call by
Sarah Blake."
Evelyn Roles had been employed by Respondent since the
middle of September 1970. She performed the same type of
work as the other female employees . Both Blake and Drane
have stated that Roles was present on October 8 when Oates
made the statements attributed to him by Blake and Drane,
supra. Roles, who was still an employee of Respondent at the
time of the hearing, was in the hearing room during the
testimony about what Oates allegedly said on October 8. She
was called as a witness by Respondent . When the witness,
Roles, was asked about Blake's testimony concerning Oates'
remarks, Roles said that Blake's testimony that Oates came
down and said that he would close the place if a union came
in was "completely untrue" and that never, at any time, had
Roles heard Oates make such a statement.
Ida Davis, a witness for the General Counsel and an al-
leged discriminatee , had worked for Respondent from June
until November 6, 1970 . 29 She testified that in the time she
worked for Respondent she had never heard anyone in man-
agement make any statements about the Union . 30 At another
point, Davis said she had never heard Oates say anything
about the Union except that in December 1970, he had told
her in a telephone conversation, "If the girls want a union,
let them get a union in." This was after the complaint had
issued.
31 Blake, Hayes, and McKissack These three employees and Drane are
alleged to be Section 8(a)(3) discriminatees.
:: This would be October 8
13 Evidently Sarah Blake, whose testimony is described below
24 Roles was identified by the witness as one of the employees present
Roles was sitting in the hearing room as Drane testified The latter identified
Roles from the witness stand as one of the girls who "was peeling potatoes,
too "
" As mentioned, Drane had been hired October 6; also, on the same date,
Blake and McKissack. Hayes first appears on the October 22 payroll (payroll
period ending October 22).
26 Regarding Roles, Blake said "she was one of them [who were present]
and she heard him [Oates] " As far as the payrolls reveal, there was nd"Nel"
on the payroll or a name of that nature
Friday
Respondent's pay periods ended on Thursday October 22 was a
Thursday Blake, Drane, Hayes, and McKissack were terminated on the
same date The payroll ending October 22 shows that none of the four
worked beyond October 22 It seems likely that at the end of the day on
October 22, Oates issued word of the layoff All were apparently present
except Blake and Slaughter told her of her layoff Blake's gross earnings for
the pay period ending October 22 were $39 33 Since her rate was $1 65 per
hour, she evidently had worked only about 25 hours from October 16-22.
It may be that she was absent on October 22 and for this reason Slaughter
relayed the news of her layoff.
' Davis performed the same type of work as the other girls
'° About the time when the Union was on the scene in September-Octo-
ber 1970, Davis states that Ruby Watkins told her that they did not need
a union because they were doing all right without a union and that the girls
who had signed union cards should not have done so Davis said that, if she
had been given a card, she, Davis, would have signed and that a union was
needed for better working conditions Watkins repeated that they were
doing all right without a union and did not need one
Watkins was no longer employed by Respondent at the time of the hear-
ing Davis and other witnesses described Watkins as "the lead girl and she
was over all the girls", she was the "all around girl, she would do some of
everything " Watkins worked with her hands performing the same type of
work as the others She would assign girls on a daily basis to various tasks,
such as peeling potatoes, cutting cabbage and so forth, depending on her
appraisal of who was best suited for this or that task at the time She could
not hire or discharge and employees went to Oates if they wished to request
time off. There is no evidence that Watkins possessed any disciplinary
authority. Not on a daily basis, but from time to time, Watkins would be seen
in the office for 5 or 10 minutes talking to Oates What they talked about
does not appear but it probably was, we believe, something about the work,
e g , whether enough potatoes, etc. were being peeled for this or that order.
We do not know if other matters were discussed The General Counsel has
not alleged that Watkins was a supervisor The evidence, in our opinion,
indicates that Watkins was a group leader "over all the girls," or a sort of
"forelady" without portfolio, and not a supervisor
OATES BROS. FRUIT & PRODUCE
Hattie Hopkins, a niece of Watkins, had been hired by
Respondent about September 25, 1970 ("since the last week
in September"). She was still employed at the time of the
hearing and performed the same type of work as the others.
Hopkins testified that during her employment she had not
heard Oates or anyone else say anything about the Union.
Willie Mae Sandford, employed since May 29, 1970, testified
that she did not "know anything about the union" at the plant
and had not "even heard about the union until lately" and not
in September and October. James McKissack, one of three
male employees, worked for Respondent from October 6 to
October 23, 1970. He was laid off at the same time as Drane,
Blake, and Hayes and is an alleged discriminatee. While he
worked for Respondent; McKissack states he heard no one
in management make any statements about the Union, either
to him or in his hearing. Margie Flowers employed on August
28, 1970, laid off on November 6, 1970, and an alleged dis-
criminatee, was asked by the General Counsel, whether,
while she worked for Respondent, "anybody from manage-
ment" said "anything to you or in your hearing about a
union?" The sole instance, according to Flowers, was early in
October 1970, when John Oates asked her one evening as she
was leaving work whether any of the union men had "ever
tried to talk to her." She told Oates, "No," which, as far as
appears, was the truth.31 This was the end of the conversa-
tion.32 ,
The two instances of illegal threats in this case were a
September 29 statement attributed to Oates by Slaughter and
an October 8 statement attributed to Oates by Drane and
Blake, plus an evidentiarily important telephone conversation
on October 26 attributed to Oates by Blake. Although we first
took up the September 29 matter and presented our finding
thereon and then described the evidence relating to the Octo-
ber 8 and October 26 matters, our conclusions were reached
with consideration of the interrelationship of all the evidence.
Our view as to credibility in one incident necessarily was
considered before reaching a conclusion regarding other inci-
dents and vice versa, particularly since Oates was the same
person to which all the statements were attributed. The valid-
ity or invalidity of Respondent's economic defense as well as
other relevant factors were also part of our consideration
before any conclusions were reached.
" Sarah Blake gave her a union card which Flowers signed on October
23, 1970.
" On about four evenings, beginning on September 29, 1970, Morris, the
union organizer, was on the sidewalk in the area immediately proximate to
the plant. This was at the time that the employees were leaving the plant
after their day's work As had been his practice in the past, before the advent
of the union (apparently because of the neighborhood and his predominantly
female complement of employees) John Oates was at the plant exit with his
car He would take several employees, who did not have transportation,
home in his car, and others he would take to their bus stops. He had on
occasion taken Flowers to her bus.
On one occasion, during the period, abovementioned, when Morris was
outside the plant, he had with him another union man and there was a third
man with them This third man, otherwise unidentified, was not a union
man, i e., he was not a union representative. The three men were together
The uncontroverted testimony of Evelyn Roles and Bertha Martin, an em-
ployee, is that they were on the sidewalk together as they walked from the
plant. The aforementioned third man took or grabbed Roles' arm, asking
whether she was ready to talk about the Union. Roles, who testified that it
was dark and that she was scared, ran around to the side of the plant, up
on the loading dock, and into the plant by the back door. Martin went to
her car and drove off John Oates testified that he first became aware that
the Union was talking to his employees at the time the Roles' incident
occurred at the end of September. The fact that during this period Oates
asked Flowers, as she was leaving the plant, whether any of the union men
had tried to talk to her does not , in our view , constitute illegal interrogation.
Aside from surrounding circumstances, the question was of a very limited
nature and not coercive.
741
In addition to the three statements attributed to Oates,
abovementioned, the General Counsel places strong reliance
for his allegations of discrimination on the time element.
Smith signed a union card on September 29 in the restaurant
and was terminated that same afternoon. The complaint al-
leges the discriminatory layoff of Blake, Drane, Hayes, and
McKissack on October 23. Blake signed a union card on
October 21, the day before the close of the pay period, and
was laid off on October 22 at the end of the pay period."
Drane signed a union card on October 22 and was laid off on
October 22 (see above discussion regarding date). Hayes did
not testify but Blake identified a union card signed by Hayes
on October 22 as having been signed in Blake's presence.
McKissack signed a card on October 22 and both he and
Hayes were laid off at the same time as Blake and Drane,
October 22 or 23. There is no evidence as to the time of day
or night that the four cards were signed or where the signing
took place." Davis, Flowers, and Slaughter were laid off on
November 5 or 6. Flowers signed a card on October 23 and
Slaughter signed a card on October 21. Davis had not signed
a card.35 Therefore, all employees named in the complaint,
except Davis, had signed union cards." We do not know if
there were any employees who signed union cards who were
not laid off.
With respect to the statements attributed to Oates, the
Trial Examiner is unable to believe,that on October 26, 1970,
when Sarah Blake states she telephoned Oates, and as soon
as she said, "this is Sarah," Oates said, "yes" and straighta-
way proceeded to say, "I warned you girls that if you all
signed union cards that you would be laid off, and if I need
you I will call you."
Blake had worked for Respondent for 16 calendar days,
October 6 to 23, exclusive. She was on three payrolls during
this period, payrolls ending October 8, 15, and 22. Four of the
16 calendar days aforementioned consisted of two Saturdays
and two Sundays, leaving 12 working days. Blake worked a
total of 77 hours in the period that she worked for Respond-
ent. The number of employees on the payrolls from October
1 (ending) to October 22 (ending) averaged about 27 em-
ployees, including Blake, and all were performing much the
same type of work.
Oates testified credibly that he had a substantial turnover,
that he did not know the names of half the employees and that
there were about 82 employees in and out during the period
J3 The effect of the layoff would commence on October 23 and in that
sense October 23 was the date of the discrimination As previously men-
tioned, the pay periods ended on Thursday, October 22, 29, November 5.
The Examiner believes that the last days worked by the alleged dis-
cnminatees were, respectively, October 22 and November 5 (the payroll
shows that they did not work beyond the respective pay periods). It appears
likely that the alleged discriminatees were notified of their layoffs on Octo-
ber 22 and November 5 when the pay periods ended Blake states that she
did not go to work on October 23 (22?) and was notified of her layoff by
Slaughter. As mentioned, Blake worked less than 24 hours in the entire
period (earned $39 33 at $1.65 per hour), Hayes worked about 24 hours,
Drane worked about 30 hours; and McKissack worked about 31 hours (his
rate was $2 00 and he earned $62 for the period).
3" One exception is that Blake states that she saw Hayes sign a card while
Hayes was sitting in Slaughter's car. Where and when, as to the car, or time
of day does not otherwise appear. McKissack, however, does say he signed
his card about 1 or 1:30 p in. but does not say where or describe the circum-
stances.
35 In the payroll period ending November 5, Davis, Flowers, and Slaugh-
ter had worked 34, 31, and 26 hours, respectively.
" Blake, Smith, Flowers, and Slaughter signed cards prior to their layoff.
It is not entirely clear whether the others (with the exception of McKissack)
who signed cards on October 22, and who last appeared as employees on
Respondent's payroll ending October 22, signed cards before or after their
layoff.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a year whose names he did not know. Indeed, many of the
employees who testified did not know the names of girls who
worked with them at the plant ." In such a context , it appears
highly unlikely to the Examiner that if Blake telephoned
Oates on October 26 and simply said "this is Sarah" Oates
proceeded immediately to tell "Sarah," in effect, that she and
the others had been laid off because they had signed union
cards, as he had warned them would happen.18 And then, it
is hard to understand why Oates, after presumably laying off
Blake for having signed a card, and telling her this, would tell
her that she would be called back as soon as Oates needed her.
It was the Examiner 's observation that Oates was a man who
had been in his business for 27 years and was a man, we would
judge, in his late 50's, who had been exposed to a reasonable
amount of business dealings with competitors and otherwise,
as well as dealing with employees . He may not have been a
labor law expert but he probably had at least basic instincts
against open confession of having laid off employees for sign-
ing union cards to someone on a telephone that he scarcely
knew or that he may not have known by name or to one of
those laid off who was presumably in contact with the Union
that was trying to organize the plant. The General Counsel's
premise is,,after all, that Oates was aware of the union activity
and of the identity of card signers and that he laid off the
latter, including Blake, for that reason, giving a pretextual
legitimate reason for the layoff.
Regarding the October 8 statement attributed to Oates by
Drane and Blake, the Examiner has considered the fact that
he credited Slaughter over Oates with respect to a somewhat
similar statement by Oates on September 29. This conclusion
makes it not implausible that the asserted statement was
made on October 8. However, the serious difficulty that
Blake's testimony regarding the October 26 telephone con-
versation has posed as,to her credibility cannot be ignored.
We regard employee Roles' testimony39 to be in direct conflict
with that of Drane (and Blake) as to October 8. The tes-
timony of employees McKissack, Sandford, Hopkins, and
Flowers also tends to support that of Roles and Oates. If, as
asserted in effect by Drane and Blake, Oates had embarked
on a campaign to warn employees that they would be laid off
if they signed union cards, it is not easy to understand why
only a group consisting of Drane, Blake, Roles, and possibly
one other unidentified person, was so warned on October 8,
and other employees,' including some who were subsequently
laid off, allegedly for discriminatory reasons, heard no state-
ments by Oates concerning the Union. As individuals, we are
unable to say that Oates, Roles, McKissack, Sandford, Hop-
kins, and Flowers impressed us as more honest persons than
Drane and Blake. But, by the same token, we cannot say that
3'1 When Drane states that Oates spoke to the employees in the basement
on October 8, the only other employee she could identify as being present
was a "redheaded lady" who was peeling potatoes with Drane who testified,
"I don't know her name " The fellow employee was Roles who identified
herself at the hearing and then Drane confirmed that it was Roles to whom
she had referred. Blake initially could only identify two girls, who were
present when Oates allegedly spoke on October 8, and her identification was
limited to the color of the girls. At a later point, with some assistance, she
identified one of these girls as Roles. Flowers testified that she believed that
there were four girls who peeled potatoes like she did and who were hired
after she was but she confessed, "I don't know them by name." Slaughter,
in testifying that others were present on September 29 when Oates spoke
in the basement testified that other employees were present Since she was
unable to remember even the number who were present, she apparently also
did not know any of their names , at least she named none
38 As pointed out above, Sarah Blake had worked for Oates for a very
brief period and as far as appears they had never had any personal conversa-
tion that would make Blake stand out from all or many or other employees.
39 As well, of course, as Oates' own testimony.
Drane and Blake impressed us as more honest and credible
than the opposing witnesses. In such a posture, the General
Counsel, having the burden of proof, must, in our opinion, be
considered to have not sustained the burden of proof regard-
ing the alleged statement of Oates on October 8 and we so
find.°°
Aside from the credibility issues between the General
Counsel witnesses and those of Respondent, the Respondent
has asserted that Blake, Drane, Hayes, and McKissack were
laid off on October 23 because of a decline in business and
that the layoff of Davis, Flowers, and Slaughter on November
6 was also due to a business decline.
Records of Respondent introduced at the hearing by the
General Counsel show the following dollar figures for
monthly gross sales:"
August (1970) September
$40,008. $32,459.
October November December ,
$22,989. $18,524. $19,272.
Although not contesting the fact that Respondent's sales had
declined, the General Counsel, by comparing the number of
employees on the payroll each week with the sales for the
week, argues that Respondent "did not decrease his working
forces proportionately" and although Respondent' s "sales
dropped 54 percent, his work force only declined 30 percent
from August through December ... and he replaced every-
body who quit, did not replace those he terminated, and then
tried to use business decline as a shield to cover his anti-union
activity."
The Examiner believes that he understands the General
Counsel's position and we have examined the figures he has
cited. We do not regard it as significant that when sales for
a week or weeks declined, the work force did not decline by
the the same percentage. What is more important was
whether sales were declining in a trend, particularly in Octo-
ber and November 1970 when the alleged discriminatory
layoffs occurred, and whether replacements were or were not
hired for those who were laid off.
The General Counsel has pointed out that sales in the
fourth week of August were $934 lower than those in the first
week, but that during August Respondent added four em-
ployees to its complement. But, in our opinion, it is more
significant that total August sales were more than double the
total sales in November and almost double the total sales in
October. The sales figure for the lowest week in August was
40 The General Counsel has urged that, in arriving at a credibility resolu-
tion regarding the October 8 incident, we be aware that Roles and Hopkins
were still employed by Respondent and therefore their testimony would be
favorable to Respondent "for that reason." It is also argued that Roles was
hostile to the Union because she was accosted by an unidentified man who
was with the union representatives one evening Wholly disinterested wit-
nesses are not common. Oates, as the employer-Respondent, was a very
interested witness as were Drane and Blake as alleged discriminatees Em-
ployee witnesses, such as Roles, McKissack, Sandford, Flowers, and Hop-
kins, some of them still working for Respondent and others, not, had a basic
community of interest with fellow employees, including the alleged dis-
criminatees, and shared with them the common experience of working or
having worked together on manual work at a modest wage. We have not
ignored the General Counsel's arguments or reasoning but our conclusions
have been made on our estimation and appraisal of all material factors.
41 In all instances we will omit the cents from the amount shown for the
sales
OATES BROS. FRUIT & PRODUCE 743
substantially higher than any week in October or Novem - in detail, we have compiled and set forth the relevant figures
ber.42 1 as to sales, monthly and weekly, and the corresponding per-
Rather than go into every aspect of the economic picture sonnel figures for such periods.
August September
Payroll. Sales Employees
Week
Ending
Payroll Sales Employees
Week
Ending
$1035"1. 3 r $11680. 28
13 10475. 26°- 10 6521. 32
20 9764. 27 17 5634. 24
27 9416. 29 24, 5986. 24
$40,008. $32,459.
October
Payroll
Week
Ending
(Last 3 days of month $2636.)
November
Payroll Sales Employees
Week
Ending
Sales
(1st 3 days $2746.)
8 1 $5474. 28 5 $3924. 22
15 5906. 28 12 5148. 20
22 4560. 26 19 3894. 20
29 4300. 22 26 5557. 20
$22,989. $18,524.
December
Payroll Sales Employees
Week
Ending
3 $4281. 20
10 1 4411. 20
17 4018. 20
24 2975. 20
31 3585. 20
$19,272.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oates testified that the layoffs which began on October 22
were due to a falling off of business, including the loss of the
Bettendorf account and the fact that his auditor advised Re-
spondent to begin cutting back."
The first layoff was of employees Blake, Drane, Hayes, and
McKissack on October 22. These were the four most recently
hired employees." According to John Oates, his auditor after
October '22 again told him " . . . your sales are still down, you
better cut."45 The next layoff, which included Davis, Flowers,
and Slaughter, was, according to Oates, based on the selection
of the least efficient workers and not based on length of
service. Three or so employees with less service than those
laid off were retained."
With respect to the question of whether the evidence estab-
lishes that the Respondent knew of the union activity of the
employees that he is accused of laying off for union activities,
the record presents some problems. The union activity of all
the discriminatees consisted of signing a union card." There
is no evidence that any union cards were circulated or signed
in the plant or that any card was signed when, or at a place
where, there is some indication that Respondent might have
62 Lowest August week, $9,416. Lowest October or November week,
$3,894. Highest October or November week, $5,906 Sales for first week in
November, payroll penod ending November 5, inclusive, were $3,924. This
is when the layoff of Davis, Slaughter, and Flowers took place Sales for third
week in October, payroll period ending October 22, inclusive, were $4,560
This is when Blake, Drane, Hayes, and McKissack were laid off The afore-
mentioned sales for the weeks ending October 22 and November 5, respec-
tively, were lower than any prior week in October, September, or August.
43 Bettendorf, a chain of about 30 stores in the area, was a customer of
Respondent's. Bettendorf was then taken over by Schnuck's, and the latter
had its own supplier for the type of products that Respondent had formerly
sold to Bettendorf. Oates also said that the automobile strike had affected
economic conditions in St. Louis
44 Blake, Drane, and McKissack were hired October 6 The only payroll
period in which Hayes worked was that ending October 22 She was evi-
dently hired between October 15 and 22
45 The General Counsel argues that Respondent's economic defense is
pretextual and since the auditor, who allegedly directed Oates to cut labor
costs, was not called as a witness, "it can therefore be inferred that his
testimony would have been adverse to Respondent." While, under some
circumstances, failure to call a particular witness may justify an adverse
inference, this is not such a situation We perceive no warrant for assuming
that if Respondent had called its own auditor, whom it presumably paid for
his services, that the auditor would testify adversely to his client and em-
ployer.
4" "It [the selection for layoff] was not taken on the time element of how
long they had been there [length of service], it was just that we were carrying
a lot of dead timber and we were either going broke or getting our house
in order." Oates also testified that "It was inefficient work that they were
turning out . . I had myself as well as my son [Gene Oates], we would watch
them [the employees] cut cabbage and you could see the speed of the
person's working and this is how the last three people were laid off." Other
testimony of John and Gene Oates also states that they had observed the
work of their employees and that the layoffs were made on the basis of
observed ability It was fairly apparent that John Oates was the dominant
and controlling element in Respondent 's business and, on the matter of
layoffs and other matters, we have no doubt that it was his ultimate decision
as to who was to be laid off His son gave his opinion to his father on such
matters and undoubtedly his views were given consideration. The son as
well as the father was in the plant and observed the work of the employees
and Gene Oates testified that he had discussed the matter with his father
been aware of the fact."g In fact, the union activity among
employees appears to have been very limited.
It is true that direct evidence of a Respondent's knowledge
of union activity of alleged discriminatees is not always re-
quired. The General Counsel would impute knowledge to
Respondent because of the smallness of the plant and its
complement, as well as "the disproportionate number of card
signers laid off," and the timing. In this particular case, be-
cause of factors previously mentioned in the preceding para-
graph, the "size of the plant" doctrine is not, in our opinion,
too persuasive. Whether there was a disproportionate number
of card signers laid off is not too clear since we do not know
many, if any, employees other than the discrimmatees had
signed cards. It is true that all except one of those laid off had
signed cards and that the layoffs followed soon after the
signings. This is a legitimate cause of suspicion. We have
described and examined the evidence in the case under the
tentative premise that Respondent was not only aware gener-
ally that the Union was engaged in an organizational effort
but that somehow Respondent knew of the union activity of
those laid off. Even with the latter assumption, we have found
that the complaint allegations have not been sustained by
substantial evidence except as to a statement by John Oates
on September 29.
The complaint also alleges that Respondent dis-
criminatorily failed and refused to recall the employees who
had been laid off on October 22 and November 5. As far as
the record shows, Respondent is not shown to have had a
general policy of recalling laid off employees in preference to
hiring new employees. The rather unclear circumstances per-
taining to Davis, however, merit description.
Davis had worked for Respondent since June 1970. She
had, therefore, worked longer for Respondent than any other
employee who was laid off in October or November 1970.
Davis was laid off on November 5 with Flowers and Slaugh-
ter. Oates testified that although he considered Davis "a little
more capable" than Flowers and Slaughter, the three were
laid off because he did not consider them as efficient as some
other employees who were working for Respondent. " Davis
had not signed a union card but had, during the union cam-
paign, told Watkins, the head girl or group leader, that she
considered the Union a good thing and that she would have
signed a card if one had been given to her.
On December 3, 1970, there was a newspaper account to
the effect that the instant complaint had been issued against
Respondent. Davis referred to the article and testified that
"the next day," Mary, Oates' daughter, telephoned her, put
John Oates on the telephone, and Oates asked her to come
back to work.50 Oates had asked her, according to Davis,
"on many days "
4' Davis is the one exception. She did not sign a card.
48 On September 29, Gene Oates did see Morris talking to employee
Smith in the restaurant Perhaps knowledge or suspicion that Smith was
prounion can be inferred from this incident . But there is no evidence of a
similar nature respecting the other discriminatees.
" Some employees who were not laid off had less length of service than
those laid off.
90 Although questioned about the matter, Davis testified several times
that no company representative had contacted her previously after her layoff
in November.
OATES BROS. FRUIT & PRODUCE 745
whether she had ever heard him say anything about the
Union. Davis, consistent with her subsequent testimony as a
General Counsel witness at the instant hearing, told Oates
that she had not heard him say anything about the Union.
According to Davis, in this same telephone conversation in
December, Oates said , "If the girls want a union , let them get
a union in." In any event , Davis testified that she declined
Oates' offer to return to work. The reason for her declining
was because, she said, that although she had never worked for
Michael Oates , "I heard the way he was and I said I couldn't
work for him," because he was "too tough a boss."51
Oates testified that Davis was offered reinstatement "the
next day." Oates went on to say that this offer was made by
an employee whose name he knew only as "Anty," who was
a "salad girl." Anty was a friend of Davis, and Anty, "on her
own," called Alma, "My [Oates'] bookkeeper." Alma "asked
her [Davis] if she was coming back." Davis declined because
she did not want to work under Michael Oates . Oates states
that he also offered employment to Davis at the time the
newspaper article appeared in December . He understood that
Davis was coming back on "Monday" but Davis never ap-
peared.
Whatever the precise facts are as to Davis, she was offered
employment after her layoff and she declined for her own
stated reasons. Davis asserts that the only offer was in
December . Oates refers to two occasions. Davis was allegedly
laid of in November discriminatorily, together with Flowers
and Slaughter because of union activities . Since Davis did not
sign a union card, the theory of her discriminatory layoff is
based on the fact that she once told Watkins, the lead girl,
that she favored a union and would have signed a union card
if she had been given one. This was Davis ' only union activity.
The General Counsel argues that , although Davis was subse-
quently offered reemployment , no such offer was made to
Flowers or Slaughter, presumably because of the union ac-
tivity for which they had been laid off originally.52 But we
cannot have it both ways. If Davis was offered reemployment
because she was not prounion, then she had not been laid off
for being prounion although the basis of her assertedly dis-
criminatory layoff was a definite declaration that she was
prounion and had not signed a card solely because the oppor-
tunity had not been offered.53
Further arguing this matter of Davis and Flowers, the
General Counsel states that a girl named "Leora Parker,"
"who had previously quit," was rehired when Davis refused
reemployment and that Flowers was not recalled in prefer-
ence to Parker because of Flower's union activity. The record
shows that Leora Parker, was on the August 6 payroll, the
earliest payroll subpenaed by the General Counsel and placed
in the record. Whether Parker was working before the Au-
gust 6 pay period, we do not know. Flowers first appears on
the September 3 payroll.54Parker appears on all payrolls from
si Michael Oates had recently returned from military service.
" Oates testified that Respondent 's records did not generally show tele-
phone numbers of employees and that it was his opinion that most of the
employees did not have telephones . The payroll sheets of all alleged dis-
criminatees are in evidence and only two show a telephone number, ix,
Davis and Flowers Morris testified that he had contacted Slaughter , Blake,
Flowers , Drane, and Smith by telephone and that their telephone numbers
appeared on the union cards they signed However , there is no showing that
Respondent had or had been given similar information as to all these em-
ployees
63 In his brief, the General Counsel states "In the case of Davis, she had
made it clear to Ruby Watkins how she felt about a union . the layoffs of
Davis, Flowers , and Slaughter should also be found to violate Section
8(a)(3)
5' Slaughter first appears on the September 10 payroll
September 3, 1970, through January 21, 1971, the last payroll
in the record."
Although on the record and in his brief the General Coun-
sel cites the hiring of "Leora Parker" in an effort to show
discrimination in failing to recall Flowers instead of hiring
Leora Parker after Davis declined to come back, he is, we
believe, in error. As we view the evidence , there were 19 on
the payroll after the layoff of Davis, Flowers, and Slaughter,
since the November 5 payroll, the last on which they ap-
peared, shows 22. The next payroll, November 12, shows 20
names, including Michael Oates , son of John Oates , Michael
had recently been released from military service . He was quite
evidently not a rank-and-file employee. Still on the November
12 payroll was Ruby Watkins and she is part of the 20 com-
plement. The November 19 payroll and following also show
a complement of 20, including Michael Oates , but not includ-
ing Watkins who was no longer in Respondent 's employ. The
new name on the November 19 payroll is Elucra Parker. With
Parker the complement was 20.
When Oates laid off Davis, he told her that she was being
laid off for lack of work and could put in for "unemploy-
ment." Flowers states that, when she was laid off, Oates told
her that he did not have enough work and that she could put
in for "unemployment."" Neither employee was told that she
would be called back if work picked up or if a vacancy arose.
It may be that it is the normal hope of employees who are
laid off for lack of work that they will be recalled if work picks
up or that they will be called before new employees are hired.
But there are surely countless employees in the annals of
employer-employee affairs, and in situations where there was
no union context or any hint of union activity , where the
employer laid off employees because work was slow and never
recalled them but did subsequently hire new employees.
Layoff is not infrequently a euphemism for a termination even
though the employee is not told that he is being terminated
or is told that he is being laid off and not fired. One of the
reasons, inter alia, why employees seek union representation
and a union contract is because of the aforementioned situa-
tion. It is one of the reasons why union contracts commonly
provide that laid off employees shall be recalled prior to the
hiring of new employees. Obviously such provisions would
not be necessary if employers did normally recall laid off
employees before making new hires. The same is true with
respect to many nonunion employers regarding selection for
layoff. On many occasions an employee with greater service
will be laid off and a junior employee retained. This again is
a factor leading to unionism and the acquisition of a contract
seniority provision to prevent such occurrences. Absent a
voluntarily established policy of a nonunion employer as to
seniority in layoff or preference to laid off employees over new
applicants , many, perhaps most, nonunion employers may
lay off a senior employee and retain a junior if they consider
the latter to be a better and more efficient employee. The same
is true ' as to hiring a new employee and not recalling a laid
off employee when the employer regards the latter as not
entirely satisfactory. And in the instant case, it has not been
established that Respondent followed a strict seniority policy
in layoffs or had a policy of recalling laid off employees.
Indeed, Davis, Flowers, and Slaughter were laid off and jun-
" The General Counsel also states that when Flowers and Slaughter were
laid off they were told that work was short In our opinion the record bears
out the fact that work and business was down and that basically all the
layoffs were due to such reason Oates states that he selected Flowers,
Slaughter , and Davis for layoffs, instead of others, because they were less
efficient workers although he regarded Davis , who had longer service than
either of the other two, as a better worker than Flowers or Slaughter.
56 As far as appears, Slaughter was simply laid off
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for employees were retained because of the employer's belief
that those laid off were less efficient employees. In such a
context and absent a policy of recall or a commitment to
recall them by the employer, the prospects of the laid off
employees for recall were not great in view of the circum-
stances and the reasons leading to their selection for layoff in
the first place.
The testimony of Davis and of Oates regarding an offer or
offers of reemployment to Davis is in some respects not very
clear and we are obliged to fill in some of the gaps by reasona-
ble deduction. Consideration of the total picture leads us to
the following opinion regarding this matter. Watkins evi-
dently left Respondent's employ between November 6 and 12
because she last appears on the payroll ending November 12.
Perhaps she left on November 6 but certainly by November
12. Some of the other employees may have known that Wat-
kins was leaving and certainly would know when she left.
"Anty," an employee and friend of Davis, became aware that
Watkins was leaving or had left, and thought that this would
create an opening for the laid-off Davis." "Anty," acting "on
her own" (and not pursuant to any initiative by manage-
ment)" asked "Alma," the bookkeeper, to telephone Davis
and ask her if she would be interested in coming back. Davis
said no. Oates in testifying about this matter was recounting
events and statements three or four steps removed from him-
self. He said that Davis was asked if she was coming back to
work. It is more likely that she was asked if she was interested
in coming back or something of that nature. There is no
reason to believe that "Anty" or "Alma" could have, or
would have, offered employment to Davis. Only Oates could
do that and he does not claim that he did so. "Anty" probably
felt that with Watkins' departure there would be an opening
for Davis and she sought to find out if Davis would be inter-
ested in returning. Alma then probably told Oates about the
Anty-Alma-Davis incident and reported that Davis did not
want to come back. Even though, in our view, Respondent
had' never actually offered Davis reemployment, it was made
aware that she did not wish to return. Sometime between
November 12 and 19, a girl named Elucra Parker appears on
the payroll, evidently hired to maintain the employee comple-
ment of 20 after Watkins left and after Davis had said that
she did not wish reemployment.
Later, in December, when a newspaper described the issu-
ance of the instant complaint against Respondent, Oates and
his son got in touch with Davis. Her testimony and that of
Oates was that she told Oates that during her employment
she had never heard Oates say anything about the Union. It
is fairly obvious that, in view of the allegations described in
the newspaper story, this assertion of Davis was gratifying to
Oates since it coincided with his own contention of never
having discussed the Union with Employees. In any event,
both Oates and Davis agree that at the time of, and in the
foregoing context, Oates offered reemployment to Davis and
she declined.
In our opinion, Respondent is not shown to have a policy
of recalling laid off employees before hiring new employees,
particularly when the laid off employees, as here, were laid off
in a work shortage situation and were laid off before junior
employees because the laid off employees were considered to
be less efficient employees than their juniors. With Respond-
ent, employees evidently came and went. Personnel data was
meager. Payroll sheets in the record, which were photostats
51 Although Watkins was the lead girl she spent most of her time doing
the same production work as the other girls. Her leaving therefore created
a gap.
9 The entire testimony about "Anty" and "Alma", and that "Anty" had
acted "on her own" is supplied by Oates
of originals, are in longhand and contain simply the em-
ployees' names, addresses, department, social security num-
bers, tax withholding, and wage rate. Many do not have the
employees' addresses filled in. There are telephone numbers
for only Davis and Flowers. The maintenance of such rela-
tively sparse personnel data does not bespeak a general policy
of having readily at hand the means of communicating with
former employees who might have been laid off. However,
Oates was clearly wrong when he said that he did not have
any telephone numbers of his employees and that he did not
call employees for that reason. He did have the numbers of
Davis and Flowers. This equivocation, although serious, is
not enough, in our opinion and in the circumstances of this
case, to establish discriminatory failure to recall for union
activity.
As mentioned, it is our opinion that a new employee, Elu-
cra Parker, was hired between November 12 and 19 because
of the vacancy created by Watkins' leaving. Before hiring
Parker, in our opinion, Oates had not sought to offer reem-
ployment to any laid off employees, particularly such laid off
employees as Davis, Flowers, and Slaughter who had been
chosen, for layoff because of their relative inefficiency. There
is no showing that Respondent had a policy of recalling laid
off employees. When Watkins left, neither Oates nor any
person delegated by him contacted any of the laid off em-
ployees. Fortuitously, through the Anty and Alma incident,
above, Oates learned that Davis was not interested in reem-
ployment. The fact that Oates had acquired the aforegoing
information is not to be confused with the fact that in Novem-
ber neither Respondent itself nor anyone acting at its direc-
tion had called Davis to offer her reemployment. Nor did
Respondent call Flowers. We believe that Respondent, Oates,
did not call Davis or Flowers before hiring a new girl, not
because it did not have the telephone numbers of Davis and
Flowers but because Respondent had no firm policy of recall-
ing laid off employees. As we have earlier pointed out, the
lack of such a policy is not a rarity where there is no union
contract requiring that laid off employees be recalled before
new employees are hired. The failure to offer reemployment
to Davis or to Flowers (after Davis, who although never
actually offered reemployment, had stated that she did not
wish to return) or to Slaughter has not been shown, by sub-
stantial evidence, to have been discriminatory."
In sum, it is our opinion that although various aspects of
the case give grounds for suspicion, substantial evidence does
not support the allegation that the discharge on September 29
or the layoffs on October 22-23 and November 5-6 were
discriminatory in violation of Section 8(a)(3) and (1) of the
Act. We have reached the same conclusion with respect to the
allegation that there was illegal discrimination by reason of
a failure to recall the laid off employees.60
'° Since the employee was hired in November that is the period when the
absence of a prior offer of reemployment to Davis or anyone else is signifi-
cant The offer of reemployment to Davis in December, after the complaint
issued and a newspaper story appeared, has no significance as to whether
Respondent had a policy of recalling laid off employees in preference to
hiring a new employee. A new employee had been hired in November
without Respondent having offered reemployment to any laid off employee
60 In its brief Respondent states that it "will rehire these former em-
ployees," if and when business improves However commendable, we do not
consider this relevant to the issues in this case which relate to the situation
and events in September-October 1970 and thereafter
CONCLUSIONS OF LAW
OATES BROS . FRUIT & PRODUCE 747
1. Respondent, on September 29, 1970, interfered with,
restrained, and coerced employees in violation of Section
8(a)(1) of the Act by warning employees that if a union came
into the plant, the plant would have to be shut down because
the business was too small for a union.
2. Respondent has not otherwise engaged in the unfair
labor practices alleged in the complaint.
THE REMEDY
While we have found Respondent guilty of violating the
Act on only one occasion , the instance involved a serious and
potent threat and it was uttered by the owner and principal
management figure of Respondent . It is our opinion that the
violation merits remedial action in the form of the posting of
a notice.
Based on the foregoing findings of fact, conclusions of law,
and the record as a whole, the following order is recom-
mended:61
ORDER
Oates Bros. Fruit & Produce Co., its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Interfering with , restraining , or coercing its employees
by stating that it will close its plant if the employees select
Cooks and Pastry Workers Local No. 26, affiliated with Hotel
and Restaurant Employees and Bartenders International
Union, AFL-CIO, or any other union as their collective-
bargaining representative.
(b) In any like or related manner interfering with , restrain-
ing, or coercing its employees in the exercise of rights guaran-
teed to them by Section- 7 of the Act.
2. Take the following affirmative action to effectuate the
policy of the Act:
(a) Post at its plant in St. Louis, Missouri, copies of the
attached notice marked "Appendix."62 Copies of said notice,
on forms provided by the Regional Director for Region 14,
shall be signed by Respondent's representative and shall be
61 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and Order , and all objections thereto shall
be deemed waived for all purposes.
" In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a judgment of the United States Court of Appeals
enforcing an order of the National Labor Relations Board "
posted by Respondent, immediately upon receipt thereof and
shall be maintained by Respondent for 60 consecutive days
thereafter , in conspicious 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 other material.
(b) Notify the Regional Director for Region 14, in writing,
within 20 days from the date of receipt of this Decision, what
steps Respondent has taken to comply herewith.63
63 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read-
"Notify the Regional Director for Region 9, in writing, within 20 days from
the date of this Order , what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT state or threaten that we will close our
plant if the employees select Cooks and Pastry Workers
Local No. 26 , affiliated with Hotel and Restaurant Em-
ployees and Bartenders International Union , AFL-CIO,
or if the employees select any other union as their collec-
tive-bargaining representative.
WE WILL NOT engage in any like or related conduct
to interfere with our employees' rights with respect to
union activity as guaranteed under Section 7 of the Na-
tional Labor Relations Act.
All our employees are free to join a union if they wish and
are free to engage in support of a union and to engage in union
activity. Employees are equally free not to join a union or not
to engage in union support or activity , subject to appropriate
provisions of the National Labor Relations Act dealing with
union membership if and when a union , chosen by a majority
of the employees, secures a contract with an employer con-
taining a lawful union shop provision.
OATES BROS.
FRUIT &
PRODUCE CO.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provision may be directed to the Board's Office, 210 North
12th Boulevard, Room 448, St. Louis, Missouri 63101, Tele-
phone 314-622-4167.