Osceola County Co-Operative Creamery Association

National Labor Relations Board - Board Decisions

Mar 26, 1957

117 N.L.R.B. 755 (N.L.R.B. 1957)

OSCEOLA COUNTY CO-OPERATIVE CREAMERY ASSOCIATION 755
within the meaning of the Act! As to (2), the Board rule is that
the jurisdiction of the Regional Director in making postelection
investigations is not limited to the specific issues raised by the parties.'
In view of the foregoing, we adopt the Regional Director's recom-
mendation and sustain the challenge to the ballot of Gold .3
Inasmuch as we have sustained the challenges to the ballots of
Jacquard, De Costo, and Gold, and inasmuch as the ballots of Narducci,
Haire, Adams, and Rainone cannot affect the results of the election
even if opened and counted, we hereby adopt the Regional Director's
recommendation that these ballots not be opened.
As the tally of ballots shows that the Petitioner received a majority
of the valid ballots cast, and as the number of unopened ballots is in-
sufficient to affect the results of the election, we shall certify the
Petitioner as the collective-bargaining representative of the employees
in the appropriate unit.
[The Board certified District 64, International Association of
Machinists, AFL-CIO, as the designated collective-bargaining rep-
resentative of the employees of the Employer in the unit hereinabove
found appropriate.]
i international Metal Products Company, 107 NLRB 65. The Employer contends that
in International Metals the parties agreed to exclude the son of a partner and therefore
the issue of his unit placement was not raised. However, in that proceeding the Board
excluded the son of a partner from the unit , not because the parties had agreed to his
exclusion , but because Section 2 (3) of the Act specifically excludes from the definition
of employee "any individual employed by his parent."
2 Radiant Lamp Corporation, 116 NLRB 40; Hobart Manufacturing Company, 92
NLRB 203.
8 We find no merit to the Employer's additional argument that if the issue of the rela-
tionship had been raised prior to the signing of the election agreement , it would not have
entered into the election agreement but would have sought a hearing to determine the
eligibility of Gold. The Employer is not here prejudiced by the lack of a preelection
hearing, because it admits that Gold is the son of one of the partners, and under these
circumstances , whether or not a preelection hearing had been held, the Board is precluded
under the Act from including Gold in the unit. See 0 . E. Szekely and Associates, Inc.,
117 NLRB 42.
Osceola County Co-Operative Creamery Association and Interna-
tional Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America , AFL-CIO, Local No. 909. Case No.
18-CA-717. March 26, 1957
DECISION AND ORDER
On September 21,1956, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that the Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the copy
117 NLRB No. 120.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
of the Intermediate Report attached hereto. Thereafter, the Respond-
ent filed exceptions to the Intermediate Report and a supporting brief.'
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 this
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.2
ORDER
Upon the entire record in this proceeding and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent, Osceola County
Co-Operative Creamery Association, Sibley, Iowa, its officers, agents,
successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-
CIO, Local No. 909, or any other labor organization of its employees,
by discriminating in regard to hire or tenure of employment of its
employees.
(b) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form,
join, or assist International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO, Local No. 909,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activity
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from engaging in such activities, except to the
extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Edward A. Loetscher and John H. Haren immediate
and full reinstatement to their former or substantially equivalent posi-
tions without prejudice to seniority or other rights and privileges and
make them whole for any loss of pay suffered by them in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy."
'The Respondent 's request for oral argument is hereby denied as , in our opinion, the
record , exceptions , and brief adequately present the issues and positions of the parties
g In finding discriminatory motive on the part of the Employer , we find it unnecessary
to rely , as did the Trial Examiner , upon incidents occurring during the summer of 1953.
OSCEOLA COUNTY CO-OPERATIVE CREAMERY ASSOCIATION 757
(b) Post at its plant in Sibley, Iowa, copies of the notice attached to
the Intermediate Report and marked "Appendix." I Copies of said
notice, to be furnished by the Regional Director for the Eighteenth
Region, shall, after being duly signed by an authorized representative
of the Respondent, be posted by the Respondent immediately upon
receipt thereof and maintained by it for a period of sixty (60) con-
secutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Preserve and make available to the Board or its agents for
examination and copying, all payroll records, social-security payment
records, timecards, and personnel records necessary to determine the
amount of back pay due under the terms of this order.
(d) Notify the Regional Director for the Eighteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
3 This notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendations of a Trial Examiner" and substituting in
lieu thereof the words "A Decision and Order " In the event that this Order is enforced
by a deci ee of a United States Court of Appeals, there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Oidei "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charge filed by the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Local
No. 909, herein called the Union, the General Counsel of the National Labor
Relations Board, by the Regional Director for the Eighteenth Region (Minneapolis,
Minnesota), issued his complaint dated May 28, 1956, against Osceola County Co-
Operative Creamery Association, herein called the Respondent, alleging that it had en-
gaged in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint,
charge, amended charge, and notice of hearing were duly served upon the parties.
The violation specified in the complaint consists of the Respondent's discharge of
employees Edward A. Loetscher and John H. Haren allegedly for having joined
and assisted the Union and for their participation in concerted activities with fellow
employees. The Respondent's answer denies that these employees were discharged
for the stated reason and avers that they were justifiably discharged for cause.
Pursuant to notice a hearing was held at Sibley, Iowa, on June 20 and 21, 1956,
before Thomas N. Kessel, the Trial Examiner, duly designated to conduct the hearing.
All parties appeared through counsel and were afforded full opportunity to examine
and cross-examine witnesses and to present evidence. After the close of the hearing
the Respondent filed a brief with the Trial Examiner which has been carefully
considered.
From the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS
Osceola County Co-Operative Creamery Association is an Iowa corporation with
its principal office and place of business at Sibley, Iowa , where it operates a plant
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the processing of milk and cream . In the course of its operations the Respondent
produces , sells, and transports various products from its plant to destinations in
other States . The complaint alleges and the answer admits that in 1955 the Re-
spondent produced and transported across State lines products valued in excess of
$50,000. The Respondent conceded that it is engaged in commerce within the
meaning of the Act. I so find.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America, AFL-CIO, Local No. 909, is a labor organization admitting to member-
ship the Respondent 's employees.
III. THE DISCRIMINATORY DISCHARGES OF LOETSCHER AND HAREN
The Relevant Evidence
Edward A. Loetscher had worked continuously for the Respondent from June
1952 until he was discharged on January 12, 1956. John H. Haren had worked
for the Respondent from June 1952 until the following year. He resumed his
employment in October 1953 and then worked continuously for the Respondent
until he, too, was discharged on January 12, 1956. Loetscher had worked inside
the plant as a general helper , and had also spent a substantial part of his time as
a relief driver on the several routes maintained by the Respondent for the pickup
of milk from farmers. Haren had worked exclusively as a general helper inside
the plant.
Loetscher and Haren together with employee Harlan DenBeste were the instigators
and promoters of the drive in the Respondent's plant to unionize its employees. On
January 3, 1956, the foregoing three employees visited the Union's business repre-
sentative, Leonard George, at Worthington, Minnesota. At that time Haren and
DenBeste received cards from George for signature by the Respondent's employees
authorizing the Union to represent them. In the ensuing days Haren, Loetscher,
and DenBeste operated as a team during the evenings visting employees at their
homes and soliciting their signatures. According to Haren, they contacted 25 to
30 employees in the period preceding January 12, 1956, and Haren himself collected
about 12 to 20 signed cards. Loetscher was uncertain as to the number of employees
solicited by the group in the period before January 12. He testified that he had
participated in the distribution of 25 to 30 authorization cards in a period of 10 days
to 2 weeks subsequent to January 3, but did not know how many were distributed
before his discharge on January 12. Both Loetscher and Haren had themselves
signed authorization cards before they were discharged.
Concerning union animus, Loetscher testified that during the summer of 1953 the
driver of a truck for the State Brand Creamery had been picking up a load of butter
at the Respondent's plant and that the driver had then discused with him the
advisability of sending out a representative to unionize the Respondent's employees.
A representative thereafter did come to the plant. According to Loetscher, Plant
Manager George Jorgensen later informed him of his understanding that he was
engaging in union activities. Loetscher denied that he had known that the State
Brand driver was coming to the plant, and moreover claimed not to be the only
employee involved . Jorgensen assertedly retorted that he was going to investigate
these activities, and "if it could be proven he had the rights from the (Respondent's)
board and himself to discharge us because of this activity." I No action was ever
taken against Loetscher as a result of this incident.
Additional proof of the Respondent's animus, its predischarge knowledge of
Loetscher's and Haren's activities in behalf of the Union, and its unlawful motiva-
tion for their discharges may be derived from testimony by employee Carson Stamey.
He related that about 3 or 4 days after the first trip by Loetscher and Haren to
Worthington, he had come to Jorgensen on a matter of plant business, and in the
course thereof the following discussion took place. Stamey remarked, "I heard there
was a union coming into the plant down here," and asked whether there was anything
to this. Jorgensen replied he had also heard of this, and asked Stamey what he
thought of the Union. Stamey answered "the union is all right in their place, some
places, so far as I know, for I worked for the union." In conclusion Jorgensen in-
1 The president of the Respondent's board of directors, Frederick F. Wheeler, testified
that he had known that "a union man from State Brand had made some contacts," but
that he "didn 't know for sure with whom "
OSCEOLA COUNTY CO-OPERATIVE CREAMERY ASSOCIATION 759
structed Stamey to "keep your ears open and see if you can find out anything, who
is behind this, pushing the Union into the plant." Stamey related another conversa-
tion in the plant with Jorgensen during the morning of January 11, 1956, in which
the latter asked him in substance whether he thought Loetscher and Haren were
behind the union movement in the plant. Stamey replied, "I don't know for sure.
It could be for all I know. I can't stick my neck out on that." Jorgensen next
spoke to him, Stamey testified, in the morning of January 12, 1956, and, referring
to Loetscher and Haren, said "we had a meeting and we are going to fire the boys."
Finally, according to Stamey, Jorgensen told him in his office on the day following
the discharges of Loetscher and Haren, "after we got these boys fired, maybe it will
scare a few more of them out and they probably wont get a union into this plant."
Haren testified that he was notified of his discharge on the afternoon of January
12, 1956, by Jorgensen who told him that he and Superintendent Henry Jensen were
tired of "telling [him] to get up and get going and he was just going to call it quits."
According to Loetscher, he was informed by Jorgensen a few minutes after Haren
had received his notice that "we were calling it quits on account of that I wasn't
doing work properly and that I did refuse to do certain work." Loetscher challenged
this reason and referred Jorgensen to a discussion between them in the presence of
two other employees on the preceding Saturday in which Jorgensen had expressed
his desire to retain him as a relief driver rather than to assign him to a steady route
as a driver. Jorgensen then remarked that the reason for the discharge involved a
circumstance which had arisen since that discussion. Loetscher denied that his work
had been criticized by his superiors or that he had received any warnings from them
before he was discharged. Haren also denied receiving any criticisms or warnings
during the last year of his employment.
Defending this proceeding, the Respondent presented testimonial and documentary
evidence to show that the discharges of Haren and Loetscher were induced by their
long-standing shortcomings as employees and were provoked by specific derelictions
on and just before January 11, 1956; and further, that the union activities of these
employees could not, and therefore did not, affect the decision to discharge them as
the persons responsible for this action were then totally unaware of such activities.
Jorgensen, moreover, flatly denied the conversations with Stamey related by the latter
and the remarks therein ascribed to him by Stamey.
Superintendent Henry Jensen was the supervisor directly over the plant employees,
and Haren and Loetscher received their work assignments from him. Jensen gave
this version of the circumstances surrounding their discharges. On the morning of
January 11, 1956, Loetscher had completed his duties in the butterprint room and
Jensen had then told him to work in the warehouse. Loetscher did not depart at
once but hesitated "a couple of minutes" in the course of which Jensen told him "he
would have to start moving around a little faster with his work or we'd have to do
-something about it." Loetscher concededly said nothing but went to the warehouse
where he performed his assignment. Jensen further conceded that there was nothing
about this incident to differentiate it from others in which he had assigned duties to
Loetscher. An hour later Jensen spoke to Manager Jorgensen and recommended
that both Loetscher and Haren be discharged. Jensen testified that on that particular
morning he had had no specific complaint against Haren, and could not at the hearing
remember whether he had that morning assigned him to any particular duties. Nor
could he remember what work Haren had done at that time. Moreover, he was not
sure whether he had seen Haren at all that morning. Jensen related that when he
requested Loetscher's and Haren's discharges he said to Jorgensen "inasmuch as
,we had had many talks about these two men that we should take action and let them
go." His reason for including Haren, he testified, was "because the manager and I
had talked of it many times and I had just come to the point where I decided we
should let them both go." According to Jensen, Jorgensen did not then tell him that
he would discharge the two employees, but said merely that he would see the presi-
dent of the Respondent's board. Jensen did not learn of Jorgensen's plan to accom-
plish the discharges until the latter came to Jensen's house on the night of January
11. At this time Jorgensen also informed Jensen that Loetscher and Haren had gone
to Worthington to see the Union's representative.
Jensen related that Haren had frequently been late reporting to work, and that this
tardiness had resulted in the delay of the Respondent's operations by other employees
who worked with him; that he had on numerous occasions telephoned Haren to in-
quire whether or when he was coming to work; that when he spoke to Haren about
his tardiness the latter would explain he had overslept or that he had been delayed
by car trouble, and then, despite his promise to be more punctual, continued with his
late reporting. Referring to the Respondent's policy of requiring its employees to
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wear white clothing,2 Jensen testified that he several times had spoken to Haren about
his failure to comply with this dress requirement and that sometimes he would on
the next day appear in whites, but at other times would not. While he spoke to
other employees also about their occasional failure to wear whites, he mentioned
this matter to Haren three times as often as to the others. Jensen further testified
that Haren was responsible for cleaning the machine used by him for freezing ice
cream and had observed on several occasions that he had failed to clean it properly.
He had spoken several times before January 11, 1956, to Superintendent Jorgensen
about Haren and mentioned the foregoing complaints, but had not on these occasions
advocated disciplinary measures. Concerning Loetscher, Jensen testified that he,
also, was often late in reporting to work, that he was slow and "stalled for time on
the job," that he had received complaints about Loetscher from Hiko Kor, the em-
ployee in charge of the operations on the loading dock, which had been transmitted
to Jorgensen, and that Loetscher did not always wear whites. Jensen claimed that
he had discussed the foregoing shortcomings with Haren and Loetscher about twice
monthly indicating to them that they "would have to do better," and that he had
received their promises on these occasions to improve. He did not in these discus-
sions directly tell them they would be discharged if they failed to do better.
Cross-examined as to his testimony on direct that he had called Haren at his
home to inquire whether he was coming to work, Jensen specified that these calls
had been "numerous" and more frequent than once or twice, but could not say how
many times. Although he claimed this had occurred throughout the entire last year
of Haren's employment, he could not say when he called him. Nor could he
recall having called him just prior to his discharge. Similarly, while claiming he
had spoken to Haren about his tardiness throughout his entire period of employment,
Jensen could not recall when or where he had done so, and could not remember
whether he had spoken to him on this subject just before his discharge or within a
week or two before this event. He did not remember whether Haren had worn his
whites on the day of the discharge, but conceded that he had worn them during the
2-week period before then. He testified that Haren would fail to wear his whites
twice a week, but then admitted he was not sure of this. He could not say how
frequently Loetscher failed to wear whites while working inside the plant. He
maintained he had discussed with Jorgensen Haren's and Loetscher's tardiness and
quality of performance just before they were discharged, but could not recall "the
date or the time or the place." He conceded, however, that during this period he
had not spoken to either Haren or Loetscher about these matters.
Manager Jorgensen testified that he had himself noted Haren's frequent tardiness,
that he had called him at times on the telephone when he was late, and had occa-
sionally spoken to Haren about this practice. He had also observed on several
occasions that Haren's clothes were not adequately clean, that he often wore a red
flannel shirt in disregard of the requirement that whites be worn in the dairy, and
that many times he came to work unshaven. Jorgensen emphasized the necessity
of personal cleanliness and the wearing of white clothes by Haren because from
time to time he was assigned to processing cottage cheese and mixing ice cream.
Federal inspectors visiting the dairy are particularly concerned with the neatness and
clean appearance of the employees engaged in such operations. He testified he had
several times observed that the ice cream machine was not properly cleaned after
the ice cream had been made and had pointed this out to Jensen. He stated that
he together with Jensen had checked the vats which Haren was supposed to wash
and that he had told Haren at least once a week to rewash them. This occurred in
the period from October 1953 to May 1954, Jorgensen testified, at which time Haren
was replaced on this duty by another employee. Jorgensen recalled reports that
he had received from men working with Haren that he had occasionally spilled milk
on the floor during "dumping" operations, but indicated that these reports came to
him during the first year of Haren's employment in the period from 1952 to 1953.
He stated also that "over some period of time" members of the Respondent's board
of directors had initiated discussions with him concerning the various complaints
about Loetscher and Haren including improper work habits, manner of dress, and
late arrival to work.
Cross-examined, Jorgensen was unable to recall when before Haren's discharge he
had last called him by telephone because he had not reported to work. He then
indicated that these calls had mainly been made by Jensen, and that he had probably
2 The Respondent had no posted rule regarding the wearing of white clothes by its
employees who worked in the dairy. Employees, when hired, were informed that
they should procure at their own expense, white garments, such as overalls, as soon as
possible and to wear them at work
OSCEOLA COUNTY CO -OPERATIVE CREAMERY ASSOCIATION 761
not called Haren within 6 months before his discharge , and if he had he did not
remember having done so. He stated he had warned Loetscher probably twice in
the 6-month period before his discharge concerning his failure to wear a white
uniform, but later in his testimony claimed that he had warned him once between
January 1 and April 30, 1955, that he risked discharge for failure to improve in
his work, and that this was the last warning Loetscher received from him before
his discharge . He could not recall when before Haren 's discharge he had warned
him about rewashing vats. He conceded that he had not given Haren any sort of
warning a day or two before his discharge , and could not recall when he had last
warned him, or when at any time he had warned him except that he had done so
at "different times" from October 1954 until January 1956.
Jorgensen testified that Jensen had, on the morning of January 11 , 1956, recom-
mended Loetscher's discharge because he had "more or less acted like he wasn't
going to do it" when he was assigned work by Jensen. At the same time , Jorgensen
said, Jensen recommended Haren's discharge . The reason Jensen gave for the
discharge of both employees was "incompetence ." Jorgensen related that he then
told Jensen he would see the president of the Respondent 's board of directors that
afternoon or the next morning and would have him call a meeting of the board
to consider the discharges .3 That night Jorgensen received a telephone call from
Leonard George , the aforementioned business agent of the Union in Worthington,
Minnesota . According to Jorgensen , George informed him that "some men" had
been to see him at Worthington about the Union and reported that he, Jorgensen,
was going to discharge two men. Jorgensen replied that it was his plan to discharge
Haren and Loetscher .4 George then said that the Union's attorney would call
Jorgensen in the morning about these contemplated discharges .s Jorgensen testified
that later that night, at about 8:30 or 9 p. m ., aforementioned employee Carson
Stamey came to his home and told him that four employees had gone to Worthington
and identified them as Haren, Loetscher , DenBeste , and Ray Schram . Jorgensen
claimed that he was prompted by Stamey 's report concerning Haren's and Loetscher's
trip to Worthington to consult Mr. Louis L. Corcoran , the Respondent 's attorney
and its counsel in this proceeding , to determine whether in the circumstances he
could rightfully discharge them He accordingly went to Attorney Corcoran's home
accompanied by Stamey where he was advised that the discharge of the employees
in question was permissible provided the reason therefore was a cause not related
to their union activities . Jorgensen could not account for Stamey 's visit to his
house to report the information about the employees ' visit to Worthington. His
3 Jorgensen conceded that he usually discharged employees without first obtaining
authority from the Respondent's board of directors . It appears from the record that he
knew he had authority to discharge rank -and-file employees and had not in the past
sought such authority from the board in advance of employee discharges.
6 Jorgensen testified as follows on this point
Q And will you relate what conversation took place at that time?
A Mr George told me who he was and that some men had been up there about
the union , then he says , "I hear you are going to discharge two men " And S said,
"That was my plan "
Q Now , up to that time, that day, had you talked to , you hadn ' t told Haren and
Loetscher you were going to fire them' -
A. No, I hadn't
Q You did tell Mr George though that you did intend to do so9
A. That's right
5 George had testified for the General Counsel about such a telephone call to Jorgensen
on the night in question . He stated that on the night of January 11, 1956, he had been
visited at his office in Worthington by employees Haren, DenBeste , and Stamey who came
there somewhere between the hours of 7 30 and 8 p in Haren on this occasion told
George that it was his "feeling " that he was going to be discharged George claimed
that he telephoned Jorgensen between 8 30 and 9 p in and claimed that the Union
represented a majority of the Respondent ' s employees This he indicated was not the main
reason for his call but that he had received a report concerning the contemplated dis-
charge of several employees about which he thought Jorgensen should consult an attorney
before discharging them George related that Jorgensen replied that he had not been
aware of the fact that the Union represented a majority but admitted that he had heard
there was some union activity within the plant or at least that the employees were think-
ing about organizing George then told Jorgensen that the Union ' s attorney from St. Paul
would get in touch with him the following morning concerning the contemplated dis-
charges George maintained that he did not mention the names of any employees in his
conversation with Jorgensen.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
explanation on cross-examination for taking him to the attorney 's home was that
Stamey requested to go along because he also wished to confer with the attorney.
His earlier testimony, however, was that he had suggested to Stamey that he accom-
pany him. There is nothing in Jorgensen's account of what occurred to indicate
what it was that Stamey wished to confer about, or that he did in any respect confer
with the attorney or participate in Jorgensen's discussion with him.6
Jorgensen related that during the morning of January 12, 1956 , he and Board
President Wheeler 7 conferred with Attorney Corcoran in the latter's office con-
cerning the legality of the proposed discharges and that the attorney again advised
that such action was justifiable if for cause and not in reprisal for union activity.
At about 1 p. in. that day 4 of the board's 5 directors held a special meeting and
among other matters of company business considered Jorgensen' s recommendations.
Jorgensen stated that he apprised them of Haren's and Loetscher's trip to Worthington
the preceding evening, explained the reasons for his dissatisfaction with their work,
and requested that the board authorize him to discharge them. All members of the
board who had been present testified concerning the events of that meeting. Two of
them, Paul Ling and Herb McLain, recalled that Jorgensen, in accord with his testi-
mony, had told the directors that Haren and Loetscher had gone to Worthington
the preceding evening. Director Herman Eggink testified that Jorgensen had
informed the board of George's telephone call and that several employees had gone
to Worthington, but that he had not revealed that Haren and Loetscher had been
among them. President Wheeler recalled that George's telephone call to Jorgensen
had been discussed, but did not believe that mention was made of the fact that
Haren and Loetscher had been to Worthington. Ling testified that Jorgensen had,
assigned as reasons for the discharge of Haren and Loetscher their reporting to work
late and his thorough dissatisfaction with them. Eggink related that Jorgensen said
only that the two employees were incapable and unsatisfactory and that these reasons
were not discussed. Eggink had expressed at the meeting his own lack of surprise
that Jorgensen was seeking their discharge for he had, since July 1955, regarded
them as undesirable employees and had himself recommended on August 1955 that
they be let go.8 McLain testified that Jorgensen, without elaborating, had indicated
that Haren and Loetscher were unsatisfactory employees. He claimed that elabora-
tion was unnecessary as their deficiencies had been mentioned "often enough" in
the past to the board members. He conceded, however, that there had been no
discussion of Haren and Loetscher at any board meeting since August 1955, and then
concluded that he "probably" had discussed them personally with Jorgensen both
before and after the board meetings. He could, however, not recall when. There
was no indication in Wheeler's testimony as to what Jorgensen had said about the
specific complaints about Haren and Loetscher, but, according to Wheeler, he visited
the plant an average of once a week and during such past visits Jorgensen had several
0Stamey denied that he had gone to Jorgensen's home on the night of January 11,
1956, to report the visit of employees at Worthington, and that lie had then accompanied
Jorgensen to the home of Attorney Corcoran. Stamey recalled that there was one occa-
sion when lie did go with Jorgensen to 1%Ir Corcoran's house. He was vague as to whether
the occasion of this visit was before or after Haren and Loetscher were discharged but
believed it occurred afterward The purpose of this visit was to receive advice from
Corcoran as to whether Stamey should sign an affidavit requested from him by the
Board's field examiner concerning the circumstances of this case. Stamey stated that on
this occasion Jorgensen had asked Corcoran whether he could discharge the two employees
for their failure to perform their work properly and that Corcoran had advised that he
could discharge them for inefficiency or incompetence but not for engaging in organizing
activities in behalf of a union Jorgensen testified that there was a visit that he made
together with Stamey to Corcoran's house to discuss the furnishing of an affidavit by
Stamey to the Board's field examiner but insisted that this was an occasion separate
from that on the night of January 11 concerning which he testified
'Wheeler testified that Jorgensen had telephoned him at 10 or 10 30 p in. the night
before, and then came to him. When lie called Wheeler, Jorgensen notified him that
"some men from the plant" had been to Worthington. He did not say who the men
were, and also said nothing about a report from Stamey.
8 Eggiiik had formed this opinion of Haren and Loetscher as a result of a visit which
they had made to him in July 1955 to complain about Jorgensen's attitude toward the
employees and also with respect to certain working conditions in the Respondent's plant.
Eggink stated that after listening to their complaints he had concluded that they were
insignificant and without foundation and thought that it was out of place for employees
,to register some of these complaints particularly with respect to the manner in which
the company 's building should be laid out.
OSCEOLA COUNTY CO-OPERATIVE CREAMERY ASSOCIATION 763
times complained that they reported late, maintained a poor appearance, and were
not too particular about their work. He himself had observed that their appearance
was not "in keeping with their occupation." Board Member Ling thought the
solicitation of the Respondent's employees by the Union was mentioned at the meet-
ing, but he did not then know, and only learned later, that Haren and Loetscher be-
longed to the Union. Eggink testified that there was no discussion of union activi-
ties in the plant and did not believe that Jorgensen had characterized Haren and
Loetscher as the ringleaders of the Union. He conceded that the Union was dis-
cussed "somewhat." Wheeler denied that he knew of any union activities at the
time the Board considered Jorgensen's recommendations for their discharges. Fol-
lowing Jorgensen's presentation of his recommendation to the Board and its con-
sideration in the above-described circumstances, authority was unanimously voted
to Jorgensen to effectuate the discharges.
With respect to its defense that Haren and Loetscher were frequently late in
reporting to work and that their discharges were motivated thereby, the Respondent
introduced in evidence their timecards covering the period beginning with the pay
period ending January 8, 1955, and continuing to the last day of their employment
on January 12, 1956. Tabulation of these.records shows the following data:
Time
reported
Loetscher's timecards for the period before May 27, 1955 9
Number Time Number
of times reported of times
5-6:30 a. m------------------- 9 7:10-7:15 a. m---------------- 21
6:30-7 a. in------------------- 6 7:15-7:20 a m---------------- 10
7 a. m------------------------ 1 7:20-7:25 a. m---------------- 7
7-7:05 a. m------------------- 12 7:25-7:30 a.m---------------- 3
7:05-7:10 a. m---------------- 12 7:35-7:40 a. m---------------- 2
Loetscher's timecards for the period subsequent to December 18, 1955
Time Number Time Number
reported of times repo) ted of times
7:05-7:10 a. m---------------- 1 7 25-7:30 a. m---------------- 3
7.10-7:15 a. m---------------- 3 7:30-7:35 a. m---------------- 3
7:15-7:20 a. m---------------- 1 7:50-7:55 a. m---------------- 1
Haren's timecards for the period before August 1, 1955 10
Time Number Time Number
repo) ted of times reported of times
3:30-6:30 a. m---------------- 53 7.15-7:20 a. m---------------- 12
6:30-7 a. m------------------- 51 7:20-7:25 a. m---------------- 9
7 a. m------------------------ 6 7:25-7:30 a. m---------------- 2
7:00-7:05 a. m---------------- 17 7:30-8 a. m------------------- 3
7:05-7:10 a. m---------------- 10 10:46 a. m-------------------- 1
7:10-7:15 a. m---------------- 12
Haren 's timecards for the period subsequent to August 1, 1955
Time
- Number Time
reported of times reported
Number
of times
4-6:30 a. m------------------- 17 7:20-7:25 a. m---------------- 9
6:30-7 a. m------------------- 52 7:25-7:30 a. m---------------- 5
7 a. m------------------------ 1 7:30-8 a. m------------------- 12
7-7:05 a. m------------------- 14 8-8:30 a. m------------------- 4
7:05-7:10 a. m---------------- 7 8:30-9 a. m------------------- 1
7:10-7:15 a. m---------------- 15 9-9:30 a. m------------------- 1
7:15-7:20 a. m---------------- 12
On the basis of his testimony that employees performing the general helper duties
which had been performed by Haren and Loetscher were supposed to be at work by
7 a. in., Jorgensen concluded that each time they reported after that hour constituted a
9 For convenience, Loetscher's timecard data has been presented in two tables, the first
covering the period before May 27, 1955, when he ceased working as a general helper
inside the dairy and then drove a truck as a relief driver, and the second covering the
period from December 18, 1955, the date when he resumed general helper duty until his
discharge on January 12, 1956.
io Haren's reporting time has also been presented in two tables for the reason that be
testified, as will be more fully explained below, he was officially given a different reporting
time at the end of July 15, 1955.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
late arrival . He testified from his own analysis of the timecards in evidence that
during the period covered by ahem Haren worked in the plant a total of 326 days
and was late 156 times . Loetscher , he said, worked inside the plant, as distinguished
from times when he was a relief driver , 100 days and was late 83 times. These
statistics differ somewhat from the above tables compiled by the Trial Examiner
from his own analysis of the timecards which show a total of 326 days worked by
Haren but only 146 reportings after 7 a. m ., sand in Loetscher 's case 95 days worked
inside the plant and 79 reportings after 7 a. m . For purposes of this report the
Trial Examiner relies upon his own analysis of the timecards.
Loetscher's failure to report uniformly at 7 a. in. or any other specific time was
explained by him thus. When he first started to .work for the Respondent he under-
stood he was to report at 7 'a. in. and he had for a while come to work at that
time. He maintained , however, that he had never been directed by the Respondent to
report then and when it was "claim[ed ] that most of them (presumably other
employees ) started at 7, 7.30," he adjusted his reporting time accordingly. No
comment was ever made to him by the manager for having done so. Loetscher did
not regard his employment as governed by any specific reporting or quitting time and
he worked each day as long as there was work for him, usually until he finished the
job assigned to him. While most employees who were also regarded as general helpers
reported at 7 a. in., Loetscher claimed he differed from them in that he had no
regularly assigned duties and generally did not know what his daily duties were to
be until he received his assignments in the morning.
Haren testified that in the first year of his employment by the Respondent , during
the 1952-53 period , he had been warned by Jensen about coming to work late, ap-
parently after 7 a. in He denied receiving any criticism or warning from Jensen or
Jorgensen in the period covered by the foregoing timecards for failing uniformly
to report by 7 a. in , and further testified that near the end of July 1955 he had
been instructed by Jensen not to report by 7 a. in. if he did not know on a given
morning what he was to do that day. Like Loetscher , Haren was also since April
1955 without a regular assignment and operated as a "swing man" substituting for
other general helpers who were absent for illness or vacations . According to Haren,
Jensen's instruction in July was that he should report at 7:30 a. m.
Accounts of Haren's and Loetscher 's shortcomings as employees were given by
several employees who testified they had worked with and had observed them in the
course of their employment . The aforementioned Hiko Kor, the employee in charge
of loading operations on the dock , expressed satisfaction with Haren 's work when
he had worked with him, and stated that he had never complained about him. Kor
found dissatisfaction, however, with Loetscher who, he said , when working with the
loading crew was always "a little behind" and would leave his work for 10 to 15
minutes, and would stop work to "visit " with other employees , would wrestle with
them and hold up their work. In addition , Loetscher sometimes reported after 7
a. in. which was the hour when the other loaders started to work, and his lateness
slowed the loading operations Kor recalled that on one occasion , in mid-December
1955 , he had told Jorgensen he preferred that Loetscher not work with the loading
crew. Kor also had worked with Loetscher painting and washing walls and claimed
that he exhibited the same faults here as when he helped with the loading. He
conceded that he had not criticized Loetscher when he worked with him for
"visiting" other employees or for walking off the job, but that once, earlier than
mid-December 1955, he had spoken to him about being a little behind in his work.
All employees , Kor granted , "stop and shoot the breeze once in a while."
Employee Harley Eichman testified that he had worked from January 1955 in
the butterprint room with Haren. The crew assigned to this function consists of five
men including Eichman. Butter was printed about three times weekly starting at
about 7 a. m. There were "lots of times," Eichman declared, when Haren did not
report at 7 a. m. with the result that the butterprinting operation was slowed. Eich-
man had orders to start at 7 a. in. and 'all other employees on this operation except
Haren reported at that hour . Haren also made ice cream in the room where the
butter was printed. Eichman claimed that when Haren finished this operation he
always left water in the ice cream machine, and that Manager Jorgensen would later
observe this condition and order Eichman to clean it out. Regarding the wearing
of white clothes , Eichman related that while the "biggest majority" of the employees
wore whites all the time Haren sometimes did and at other times did not. He
described 's Haren's manner of performance -of his work as being on the "hurry-up
side, rush side." By this Eichman said he meant that his product didn't "look neat
after a hurry-up job." He claimed that when Haren made ice cream he was also
supposed to pack it so that it would be ready for pickup by the delivery drivers the
following morning. Haren , however, would fail to perform this function in the
OSCEOLA COUNTY CO-OPERATIVE CREAMERY ASSOCIATION 765
morning thus delaying the drivers and his butterprinting . In his cross -examination,
however, Eichman admitted that it was his duty regularly to pack the ice cream
and that Haren performed this duty only when he was away from the plant. He
further conceded that he had never complained to anyone about Haren's work while
the latter was employed by the Respondent , but that following Haren's discharge he
several times discussed the quality of his work with Jorgensen and Jensen.
Employee William Smrcka had also worked with Loetscher and Haren and testi-
fied concerning their manner of performing duty particularly from the period from
January 1, 1955, to the date of their discharges . He had worked with Haren at
various times in this period in the ibutterprinting crew and had also helped freeze ice
cream. He conceded that these times were not very frequent . Haren, he said,
would sometimes report at 7 a. m , but sometimes was late. Most of the other
employees, he added-presumably those with whom he and Haren worked-started
at 7 a. in. Smrcka indicated , however, that he himself had variable starting times
ranging from 4 a. in. to 7 a. in., "so lots of times I don't know what time these
other men came to work ." Commenting on Haren's work, Smrcka observed that
"sometimes he was a little slack" which he explicated to mean "he didn't clean
things up too good." In addition Haren "didn't show too much interest in his work"
as exemplified by the fact that sometimes he did not freeze ice cream to its proper
density. He claimed that Haren had also on a few occasions failed to pack ice
cream when he was supposed to. In addition , according to Smrcka , Haren left water
in the ice cream freezer after cleaning it up with the resultant danger of corrosion to
the machine and possibility that the next batch of ice cream turned out would be
contaminated . He himself had cleaned out this machine upon orders from Jorgensen
after Haren had supposedly done the job. As to clothing worn 'by employees in the
butterprint room, most wore the required whites. Haren, however , sometimes wore
whites, but sometimes wore a colored shirt. Haren's cleaning of the butterprint room,
after the butterprinting was finished , also came in for criticism by Smrcka who said
"sometimes it could have been done a little better ," and sometimes it wasn't done
"thoroughly ." Following Haren's attendance to this duty , Smrcka said that he had to
scrub the floor upon orders from Jorgensen . Smrcka also worked with Haren on
loading operations, although very little, and here he expressed satisfaction with his
performance.
Concerning Loetscher, Smrcka said that he had on various occasions worked with
him during the period from January 1 , 1955, until his discharge . He testified that
Loetscher sometimes worked "real good " and sometimes he did not . He explained
that Loetscher "liked to visit quite a bit sometime ," and that while he and the other
men on loading operations reported at 7 a. in. Loetscher "sometimes was there and
sometimes he wasn't." As to Loetscher's attire, Smrcka claimed "he didn't dress in
white too much, his appearance was not too neat" regardless of where he worked
in the plant . Smrcka worked in association with Loetscher at loading , doing main-
tenance work such as washing windows, scrubbing walls and painting , and sometimes
wrapping butter. Regarding the last-mentioned work, his only criticism was that
Loetscher "sometimes" was not dressed in white, and concerning the maintenance
work, "some was good and some wasn 't" in that it was either neat or sloppy.
Cross-examined , Smrcka conceded that similarly to Loetscher all the other em-
ployees did not always do good work, but then added that Loetscher stalled a little
more than was necessary. He then agreed that it was "possibly" true that other
employees also stalled more than was necessary . He indicated that he did not neces-
sarily imply by his testimony concerning Loetscher's attire that he came to work
wearing dirty clothes, but that "sometimes he did look fairly dirty." This he agreed
was "sometimes " true of other employees, and explained that considering the nature
of the work at the plant, such as loading barrels, white clothes did not stay clean
very long. As to his working together with Loetscher, Smrcka confessed that he
worked very little with him before his discharge, and that the maintenance work
done by Loetscher which he had criticized was performed in the spring of 1955.
Smrcka testified that he had not, before Loetcher or Haren had been discharged, made
any complaint to any official of the Respondent concerning their work , but added
that Jorgensen and Jensen "might have asked me what I thought of him" and that
"they probably did" ask him this. In response to the Trial Examiner's questions,
Smrcka testified that Eichman was ordinarily required to clean the butterprint room,
but that some other member of the 5-man print crew would be given this assignment
if Eichm'an were not available. This person could have been Haren or some other
employee in the crew. As only the person selected to do the cleaning remained in
the printroom , Smrcka did not see him perform this duty unless he "sometimes"
happened to return and observed him in the process of cleaning or saw the results
of his work after he had finished cleaning and then concluded that he had not
done a good job.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Analysis and Conclusions
The issue presented by the foregoing recital is essentially factual and its resolution
is necessarily governed by the determination of the several conflicting accounts by
the witnesses for the opposing sides and of the conflicting interpretations of the
evidence projected by the General Counsel and the Respondent. Some elements
supporting the General Counsel's case are not in dispute. Clearly, Haren and
Loetscher are proved to have been 2 of the 3 employees who instigated and con-
ducted the campaign to unionize the Respondent's employees. It is also incontestably
proved that they were simultaneously discharged within a few days after they started
their union activities. There is some uncontroverted evidence (the 1953 incident
involving Loetscher and the State Brand driver) indicative of union animus on the
part of Respondent.ii Serious dispute, however, exists over the General Counsel's
evidence that the discharges were accomplished precipitately and without warning
to the affected employees, that Manager Jorgensen, the official responsible for ef-
fectuating the discharges, knew or suspected the leadership by these employees in
the union movement before he decided to discharge them, and that he subsequently
revealed by comment to an employee that his action was, in effect, motivated by a
desire to prevent unionization of the Respondent's employees.
The evidence adduced by the General Counsel, including the undisputed as well
as the controverted, permits the inference that the Respondent's complained of
conduct violated Section 8 (a) (3) of the Act. To overcome the General Counsel's
prima facie case, it was incumbent upon the Respondent to go forward with proof
at least equally persuasive as that presented by the General Counsel to negate the
inference of statutory violation flowing therefrom. This the Respondent has sought
to do by controversion of critical aspects of the General Counsel's proof, notably
through testimonial denials by its officials, Jensen and Jorgensen, that they were aware
of Haren's and Loetscher's union activities when the recommendation and decision
to discharge them was made, and by the affirmative justification for the discharges
resting upon the January 11, 1956, incident involving Loetscher and the poor work
records and derelictions of the two employees in the course of their employment as
reflected by the testimony of the Respondent's officials and employees.
As noted, the General Counsel's prima facie case is in important part predicated
upon testimony of Haren and Loetscher that their discharges were not foreshadowed
by official warnings or reprimands for failing adequately to perform work or for
breaching their employer's rules. Haren and Loetscher denied that in the entire year
before their discharges that Jensen or Jorgensen had warned or reprimanded them
for any reason. While these officials are in disagreement with such categorical
denials, I find from their own testimony that they had not, within a period closely
related in time to January 12, 1956, communicated a warning or reprimand to Haren
or Loetscher in such manner as to indicate to them that their employment had been
imperiled by job misconduct. Thus, although Jensen claimed that he had dis-
cussed their delinquencies with Haren and Loetscher about twice a month, he
expressly conceded not having spoken to them thereof in the period just before they
were discharged. He specified that he could not remember having spoken to Haren
within a week or 2 weeks before his discharge concerning his late arrivals to work
and I am thereby convinced that he had not mentioned this matter to Haren in this
period, else, in the circumstances of this case, it would have been remembered by him.
Jensen further recalled that Haren had worn his whites in the 2 weeks before his
discharge, thus precluding possibility for discussion or warning from him in this
period concerning Haren's failure to wear such attire. Jorgensen's inability to recall
when he had last warned Haren for any reason is also regarded by me as an indica-
tion that there had been no such warning from him in point of time related to
Haren's discharge, for were it otherwise, I would also have expected this circumstance,
in view of its importance to the defense, to have been remembered by him. As to
Loetscher, Jorgensen's explicit testimony that he had warned him once that he
risked discharge for failure to improve in his work and that this occurred between
n Loetscher's testimony regarding Jorgensen's threatening remarks on this occasion was
not denied The Respondent's brief states that counsel's failure to examine its witnesses
concerning this testimony was an oversight, implying that these witnesses, had they been
questioned, would have refuted Loetscher. There is an implied suggestion that a finding
based upon Loetscher's undenied testimony should consequently be avoided This, of
course, I may not do Some confirmation for Loetscher's account of the incident in
question is furthermore furnished by the testimony of Board President Wheeler that he
had known that a "union man from State Brand had made some contacts " Jorgensen
also testified that he had known of past union activities by Loetscher. I am satisfied
that Loetscher truthfully recounted Jorgensen's threats.
OSCEOLA COUNTY CO-OPERATIVE CREAMERY ASSOCIATION 767
January 1 and April 30, 1955, definitely reveals an absence of warning by him at a
time relevant to Loetscher 's discharge . Significantly , Jensen conceded that while
he had discussed with both Haren and Loetscher , as he sometimes did with other
employees , such matters as attention to duty, wearing the required whites, and
coming to work on time he had never expressly warned them of discharge or other
disciplinary action for failure to do better . While I am satisfied that Jensen or
Jorgensen , or even both , may at times have talked to Haren and Loetscher about
their reporting time, attire , or work attitude , I find that nothing was said by them to
these employees within a period of time sufficiently close to their discharges on
January 12, 1956, to have caused them to apprehend that their employment was
on that date imperiled because of any misconduct in the course of their work or for
their breach of any of the Respondent 's rules. I am, accordingly , satisfied that when
they were discharged on that date that this action occurred abruptly and without
intimation to them from the Respondent 's officials , except that they had on the
preceding day acquired a premonition that they were about to be discharged for
reasons disconnected with job misconduct or breach of rules.
In reaching the foregoing conclusion I have considered the testimony of Jensen
regarding the incident of January 11, 1956, involving Loetscher , which Jensen claimed
provoked his recommendation for the discharge of Loetscher , and led also to his
decision to recommend the discharge of Haren at the same time , and am not
persuaded from his account of this incident that it presaged the disciplinary action
that followed . Wholly apart from the question of whether Loetscher had delayed
responding to Jensen 's command for an interval of such length that it could reason-
ably have been construed as a refusal or unwillingness to obey, there is Jensen's
testimony that he had merely told Loetscher that "he would have to start moving
around a little faster with his work or we would have to do something about it."
Taking Jensen 's version that Loetscher said nothing on this occasion , and that he
proceeded in accord with Jensen's direction to his assignment which he performed
without criticism , I do not regard Jensen 's prodding remark, if made, as a warning
to Loetscher that his job now hung in the balance . Jensen's concession that the
incident did not differ from any other in which he had assigned work to Loetscher
indicates that he himself did not regard the circumstance as one to be considered by
Loetscher in any new or special light . As to Haren , I do not perceive how Loetscher's
experience , even if related to him in the manner described by Jensen at the hearing,
could have been regarded by him as forewarning of imperilment of his employment.
The -General Counsel 's most cogent proof of the Respondent 's union animus, pre-
discharge knowledge of Haren 's and Loetscher 's union activities, and antiunion
motivation for their discharges is contained in the above -related testimony by em-
ployee Carson Stamey concerning his conversations with Manager Jorgensen.
Jorgensen 's flat denial of this testimony and his disagreement as to other events
related in Stamey 's testimony raises one of the most vital and complex credibility
issues in the proceeding . The Respondent's brief vigorously attacks Stamey's
testimony as unworthy of belief because his demeanor while testifying was not that
of a truthful witness. His testimony is also attacked because, as shown by the record,
he was at all times material to this case a member of the Union in a withdrawal
status and had participated in activities in its behalf with the Respondent 's employees.
In the Respondent 's view this sufficiently reveals his interest in a favorable outcome
for the complaining employees in this case and for the Union to warrant rejection
of his testimony . Further attack consists of argument that Stamey 's testimony is
inherently unbelievable , and, finally, that Jorgensen 's more credible testimony should
prevail over Stamey's.
Concerning Stamey's demeanor as a witness , he has been correctly described in
the Respondent 's brief as nervous , uncomfortable, and hesitant while testifying.
It does not follow, however , that these manifestations must brand him as untruth-
ful, for it is not uncommon for honest witnesses in formal legal proceedings, such
as this, to be under a severe strain producing all the symptoms exhibited by Stamey.
I observed Stamey with considerable attention in view of the gravity of his testimony
and did not form the impression that he was trying to conceal or mislead. Nor do
I believe that Stamey's hesitance reflected any more than the excessive care fre-
quently characteristic of truthful but inexperienced witnesses in courtrooms. While
hesitant witnesses such as Stamey often exasperate others with the slowness of their
answers they should not in consequence be condemned as untruthful.
Stamey's membership in the Union and his activities in its behalf as a circum-
stance bearing upon his interest have been considered in according weight to his
testimony . They are not , in my view, a compelling reason for discrediting him. I
parenthetically observe that I have considered the interest not only of Stamey but
of all the witnesses in the outcome of the proceeding in weighing their testimony.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent proposes that it is unbelievable that Jorgensen would have made
the comments and disclosures to Stamey related by the latter because of a lack
of affinity between the two. That Stamey may not have been so familiar with or
close to Jorgensen as to have been his "confidante" and therefore one to whom
Jorgensen would not likely have uttered these comments is not persuasive argument.
Indiscreet words are sometimes spoken when wisdom decrees silence. Moreover,
I can perceive practical reasons for Jorgensen's discussions with Stamey. Although
not shown to be a supervisor within the meaning of the Act, Stamey's position
with the Respondent as an "overseer" of three employees in the receiving room of
the plant placed him to some degree closer to management than other rank-and-file
employees. If Jorgensen were interested in information about the Union, as Stamey's
testimony implies, his request to Stamey to "keep your ears open and see if you
can find out anything, who is behind this, pushing the Union into the plant" would
likely be made to an employee at his level of responsibility and loyalty rather than
to one further down the scale. This reasoning would also apply to Jorgensen's
later inquiry concerning Haren's and Loetscher's sponsorship of the Union. In the
course of the foregoing conversations Stamey had not indicated that his sentiments
favored the unionization movement. Instead he had led Jorgensen to believe that
he was no more than neutral even though he had once "worked for the union" and
thought a union "is all right in their place, some places." Jorgensen might well have
regarded these expressions as signifying Stamey's predisposition against unioniza-
tion in the Respondent 's plant, and I would not , in this circumstance , deem it so
unlikely as to be unbelievable that he should on the day of the discharges have told
Stamey that such action had been decided upon and, after the discharges, that this
action would encourage other employees to abandon the Union.
Concerning the denials by Stamey that he had gone to Jorgensen's house on the
night of January 11, 1956, to report the visit by four employees to the home of the
union representative in Worthington and had then gone with Jorgensen to the home
of Attorney Corcoran, and Jorgensen's insistence to the contrary, the Respondent
argues that Stamey's version is deliberately false and that all his testimony should
therefore be rejected. Apart from its position that Jorgensen is more credible than
Stamey and that his contradictory testimony should therefore prevail, the Respond-
ent reasons that Stamey must have gone to the attorney's home on January 11, be-
cause in relating the circumstances of his admitted conference at the attorney's
home on another occasion he testified that Jorgensen had then asked whether Haren
and Loetscher could rightfully be discharged for cause despite their union activities
and was advised by the attorney that he properly could. This question, the Re-
spondent asserts, would logically have been asked before and not after the discharges.
Thus, the argument concludes, Stamey necessarily was present on January 11, 1956,
when Jorgensen was especially concerned with advice concerning his rights and
the contemplated discharges of Haren and Loetscher. This argument is not with-
out some appeal. It is, however, by no means conclusive. Stamey's trip to At-
torney Corcoran's home on or about January 30, 1956, in company with Jorgensen,
was occasioned by the desire for advice concerning the affidavit sought from him by
the Board's field examiner who was investigating the charge in this proceeding.
The question which Stamey heard asked by Jorgensen and answered by the attorney
on this occasion certainly pertained to a matter which was then of critical interest
to Jorgensen, and could just as logically have been asked for purposes of assurance
by Jorgensen to satisfy himself that he occupied a legally defensible position as would
have been the case were he seeking advice as to future contemplated action. Further,
the Respondent contends, Stamey's denial of the January 11 visit with Jorgensen
and Attorney Corcoran must be discredited, for how else, if Stamey had not that
night told Jorgensen, did the latter conclude that Haren and Loetscher had gone to
Worthington to see George? The answer is supplied in the record for Jorgensen
testified in his direct examination that he knew from George's call that Haren and
Loetscher had been to see him although he did not know the identity of the others.12
This is the pertinent testimony
Q Now, you knew from Mr George's call that others had been out there with re-
gard to the Union other than Haren and Loetscher , did you not?
A I didn ' t know the number at the time , the number that was up there
Q You didn 't know tie number'?
A No, I didn't know the number
Q. But you did learn later that there were more than the two up there?
A That is right
Q And you knew who they were , did you not 9
A That is right.
See also Jorgensen 's testimony set out in footnote 4, supra.
OSCEOLA COUNTY CO-OPERATIVE CREAMERY ASSOCIATION 769
While Jorgensen did state on cross-examination and again in response to questions
by the Trial Examiner that he had been apprised for the first time that night by
Stamey of the identity of the persons who went to Worthington, the effectiveness of
this testimony in attacking Stamey's credibility is blunted by Jorgensen's self-contra-
diction. Finally, to argue that Stamey's testimony should be rejected because it is
contradicted by Jorgensen's differing version, merely begs the' ultimate question as
to whether one or the other should be believed. In considering whether Stamey's
or Jorgensen's testimony on this point of conflict should be accepted as true, I have
considered the suggestion in the Respondent's brief that Attorney Corcoran had not
testified because he felt precluded by legal ethics from so doing and that he might
otherwise have corroborated Jorgensen. With all due respect to this possibility and
my very high regard for Attorney Corcoran, counsel surely realizes that such con-
siderations may not have any bearing on my findings. On the other hand, the record
does contain testimony by Haren, which I credit, that he was continuously with
Stamey on January 11, from 7:30 p. m. until approximately 12:45 -a. in. of the next
day both in Worthington and Sibley. In view thereof, and for the reasons here-
inafter set forth crediting Stamey over Jorgensen, I find that Stamey did not on
January 11 visit Jorgensen and then go with him to the home of Attorney Corcoran.
I have rejected the contention that Stamey was a deliberately false witness and
that his demeanor while testifying compels that he be discredited. I have also con-
cluded that there is not the apparent implausibility in his testimony which the Re-
spondent argues logically requires its disbelief. In my view his testimony can best
be evaluated by objective analysis of its substance as recorded with emphasis upon
its internal consistency and inherent plausibility, and then by comparing it with
Jorgensen's contradictory testimony after it had been equally scrutinized. This pro-
cedure is suggested by the Respondent's brief and all this I have done.
Stamey's testimony is not only plausible but consistent. Jorgensen's testimony,
on the other hand, reveals several internal contradictions, conflicts between his and
the accounts of other witnesses for the Respondent as to material circumstances, and
certain implausibilities with respect to his conduct in this case which lead to my
conclusion that as between Jorgensen and Stamey the latter is a more credible and
reliable witness. All these matters I shall specifically advert to below. Accordingly,
I have credited Stamey's testimonial account of his conversations with Jorgensen
before and after the discharges of Haren and Loetscher and have rejected Jorgensen's
denial of that testimony.
Jorgensen's unconvincing and contradictory explanation for seeking authorization
from the Respondent's board of directors for the discharge of Haren and Loetscher
holds foremost rank as a detractor from the quality and worth of his testimony.
That Jorgensen should have failed to exercise his clear managerial power to dis-
charge two rank-and-file employees without first getting authorization from the board
seems extraordinary on its face, and more especially so in view of Jorgensen's
admitted past handling of discharges of the Respondent's employees. He testified
that as a rule he discharged employees without consulting the board, and further
revealed that he had determined in 1950, when he first became manager that he
was empowered to discharge employees for incompetence. This advice had been
given Jorgensen by the Respondent's attorney, and he had entertained no doubts since
then that he could discharge employees for that reason. Bearing in mind that
Jorgensen in his own words recommended Haren's and Loetscher's discharges to the
board "strictly on an incompetence basis," the question necessarily arises as to the
reason for this procedure. In this connection it should be noted that Jorgensen's
testimony shows that when Jensen on January 11 requested the discharges, that
Jorgensen then told him he would take the matter up with Respondent's president
and board of directors. However, Jorgensen later testified that he had decided on
this procedure because of the telephone call from Union Representative George on
the night of January 11, so that the board would understand that the discharges were
not related to the union activities of the affected employees but that they were based
solely on their incompetence. I cannot accept the latter explanation as truthful, for
it is not only contradicted by Jorgensen himself, but his earlier version is confirmed
by Jensen.
I am satisfied that Jorgensen decided to go to the board concerning the discharges
before he received George's call. His failure to follow the "usual" procedure, as
to which he had no doubts, evidently resulted from the involvement of something
more than the discharge of two rank-and-file employees for incompetence. I have
found that Jorgensen had before January 11 discussed with Stamey the possibility
that Haren and Loetscher were the leaders of the union movement and had sought
such information from Stamey. I have found that after the discharges Jorgensen
423784-57--vol. 117- 5 0
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had in effect told Stamey that the discharges would cause defections from the Union
of other employees. I am satisfied that Jorgensen's unusual method of handling
their discharges was associated with his knowledge or suspicion of their prominence
in that movement and the anticipation that their discharges would be a deterrent
to union adherence. It may well be that Jorgensen's purpose in not exercising his
managerial powers was to relieve himself of exclusive responsibility for the possible
consequence of the discharges of Haren and Loetscher for the reasons which I
believe then impelled his decision for such action. I need not, however, resort to
such speculation. Jorgensen's unsatisfactory explanation of the foregoing conduct
provides a tangible factor detracting from the weight of his testimony and lends
strong support to my conclusion favoring Stamey's testimony over his.
I refer to other portions of Jorgensen's testimony which raise serious doubts as
to its worth. He had sought to emphasize the notoriety of Haren's and Loetscher's
history as undesirable employees by indicating that members of the Respondent's
board had "brought" to him their own observations concerning the various com-
plaints as to the manner of work, dress, and time of arrival at work ascribed to
these employees by Jorgensen. None of the four board members who testified
substantiated this. Indeed, the contrary would appear to be true. Thus, while
Board Member Eggink had discussed with Jorgensen at the July and August 1955
board meetings his criticism of Haren and Loetscher, his complaints then were not
related to their performance of duty or failure to observe the Respondent's rules but
rather to what he regarded their presumptuousness in presenting demands for em-
ployees concerning matters which Eggink regarded as the exclusive concern of
management. Member McLain recalled that Haren and Loetscher had been the
subject of discussion at the July and August 1955 board meetings and that comment
about them had been made by Eggink and Jorgensen, but that there had been no
discussion of them at any subsequent meetings of the board. He was so uncertain
as to whether he had thereafter discussed these employees with Jorgensen or anyone
else that I would not find from his testimony that such discussions had taken place
at all. More important, his testimony implies that had there been such discussions
it was not he who had initiated them by bringing forth complaints about Haren
and Loetscher. Board President Wheeler stated that he had during his visits to the
plant observed that the appearance of Haren and Loetscher was not "in keeping
with their occupation," but had "not necessarily" made any other observation
regarding their work. While he testified that he received various complaints from
Jorgensen about their work, he gave no indication that he had complained to
Jorgensen about them, and, in view of his admitted limited observation, it would
seem that he could not have done so to the extent that Jorgensen claimed such
complaints were brought to him by board members. Board Member Ling gave no
indication at all in his testimony of having complained to Jorgensen about Haren
and Loetscher and from the fact that he was not acquainted with Haren it is certain
that he could not have complained about him. As to Loetscher, Member Ling
testified only that he had met him with nothing else to show that he was familiar
with his job performance so that he could have complained to Jorgensen about him.
My conclusion is that Jorgensen's testimony about alleged complaints from board
members was an exaggeration designed to bolster his claim that Haren and
Loetscher were notoriously poor employees.
I have already adverted to Jorgensen's inconsistent explanations for Stamey's
alleged visit with him to the attorney's home on January 11, 1956, and to the
manner in which he claimed to have been informed that Haren and Loetscher had
gone to Worthington that night. I now turn to the highly significant circumstance
in this case involving the coincidence of Haren's and Loetscher's discharges and their
union activities, and the Respondent's explanation for this coincidental timing.
Necessarily involved therein is the testimony of Jorgensen and Jensen explaining
their conduct producing the Respondent's action against Haren and Loetscher.
Satisfactory explanation by them could effectively dissipate the inference of unlawful
conduct to which the timing factor so strongly contributes. Failure convincingly
to explain strengthens the inference.
Jensen's explanation for seeking Loetscher's discharge is in my view unconvincing.
Assuming the facts to have been as he described them, Loetscher on the occasion
in question said or did nothing but only failed for a "couple of minutes" to proceed
to his assignment , whereupon Jensen told him he would have to move along a
little faster or something would be done. The fact is, as Jensen conceded, there
was nothing different about this experience involving work assignments to Loetscher
than others he had given him in the past, Loetscher said nothing, and he went to his
assignment and proceeded to perform his work without complaint from manage-
ment. We are left in these circumstances with Jensen's subjective conclusion, as
OSCEOLA COUNTY CO-OPERATIVE CREAMERY ASSOCIATION 771
Jorgensen said he related it to him, that Loetscher had "acted like he wasn't going
to do the job." Loetscher's version of the incident is that upon Jensen's direction to
him to work in the warehouse he went to the lockerroom to change into warmer
clothes and that this took about 5 minutes. He recalled no delay between the time
of Jensen's direction and his movement to the lockerroom, and denied any exchange
of words with Jensen.
It is conceivable that Jensen may have for a reason apparent only to him,
conscientiously concluded that there was something about Loetscher's manner indica-
tive of a refusal to obey an order, and that he could have been genuinely and
sufficiently disturbed thereby to have sought Loetscher's discharge. That his judg-
ment could have been faulty, or that he acted harshly or imprudently would be
immaterial to the issue of statutory violation in this case, so long as his conduct
was not related to Loetscher's union activities. The fact must be determined
whether such relation exists, and in making this determination, in the face of
Loetscher's opposing version of the incident, consideration must be given to the
reasonableness of Jensen's disputed account of what happened.13 In this connection
I regard Jensen's account as so unrealistic and unlikely that I do not give it credit.
Had Jensen attributed to Loetscher some overt act of insolence or insubordination by
word or gesture there would have been some element of reality to his testimony which
could have influenced my belief. I might have been persuaded to accept his testi-
mony as true had there been some history of insubordinate conduct by Loetscher
towards Jensen, but this was not among the various complaints against him which
Jensen had related. Absent such background, I do not, from Jensen's description
of the incident perceive how he reasonably construed Loetscher's mere silent hesita-
tion as insubordination. In any event, I credit Loetscher's more likely account
that there was no hesitation by him in complying with Jensen's direction, and that
except for the time spent in changing his clothes, he did not by hesitation or otherwise
indicate an unwillingness to comply with Jensen's assignment.
I consider Jensen's version of the foregoing incident as unlikely and unreasonable
for these additional reasons. He had in his testimony complained about numerous
derelictions concerning Loetscher's performance, which could have furnished as
much if not more provocation for discipline than the alleged January 11 incident.
Yet, Jensen had never given any warning to Loetscher of punishment for his claimed
derelictions and, what is more, had never in discussing them with Jorgensen sug-
gested discipline. This would indicate, either that Jensen had not regarded these
derelictions as meriting discipline, or that he was a person of considerable fore-
bearance. If the former explanation is valid, then Loetscher's mere lack of alacrity
on January 11 would probably not, as a matter of consistency, have produced Jensen's
drastic reaction. If Jensen had not invoked discipline in the past because of his
forebearing nature, he was strangely out of character in seeking Loetscher's discharge
in consequence of the January 11 incident.
To compound the irrationality and incredibility of Jensen's account, is his fur-
ther explanation for seeking Haren's discharge simultaneously with Loetscher's.
Particular note should here be taken of the absence of any specific act of provocation
by Haren in explanation of Jensen's abrupt decision to obtain his discharge.14 Fur-
ther attention should here also be directed to Jensen's recital of Haren's faults as an
employee with indication that, in the period just before January 11, Haren had
complied with the regulation as to attire, and that Jensen had not in this period, as I
have found, discussed his late reporting to work or given him any warning for any
reason. Haren's performance on January 11 was apparently sufficiently without
complaint, and he was consequently so inconspicuous that Jensen could not even re-
member what he did that day and could not even recall seeing him. That he should
in these circumstances have abruptly recommended Haren's discharge without ever
before having warned him of discipline or suggested such action to Jorgensen invites
disbelief . I reject Jensen 's testimony that he recommended Haren 's discharge in the
manner or for the reasons related by him.
's I am satisfied that Jensen, despite his contrary testimony , knew of Loetscher 's union
activities as well as Haren's, for, if, as I have found, information concerning these
activities was current enough to come to Jorgensen's attention, it was, in the Respondent's
small plant, exceedingly likely also to reach Jensen. Contributing to this conviction is
Jensen's unconvincing explanation, detailed below, for recommending the discharge of
these employees.
is While Jorgensen claimed that he was vexed by Haren's late arrivals to work just
before his discharge Jensen made no claim that he was influenced thereby to recommend
Haren's discharge.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I further reject Jorgensen's testimony that he acted pursuant to Jensen's recom-
mendation and for the reasons allegedly given him by Jensen to obtain Haren's and.
Loetscher 's discharges . I am persuaded that Jorgensen was motivated in this conduct
by his desire to prevent unionization of the Respondent 's employees by getting rid'
of two of its instigators and leaders and thus providing the other employees with an
example of the consequences which might befall them if they gave their support to the
Union.
In reaching the foregoing conclusion I have given considerable attention and
thought to the Respondent 's evidence concerning the work records of Haren and
Loetscher . My review of the testimony of employees Eichman and Smrcka leads
to the belief that their criticism of Haren and Loetscher does not condemn them as
unworthy employees . To a considerable degree, their complaints lack substance and
give the impression of animus towards Haren and Loetscher which impairs the
worth of their testimony . Thus, Eichman 's and Smrcka 's complaint against Haren's
failure to pack ice cream is without justification for this was Eichman's regular
duty and performed by Haren , according to Eichman , only when the latter was not
at work . In this circumstance he could not validly complain, as he did, that Haren's
failure to pack ice cream necessitated his performing this task with consequent in-
terference with his other duties. Smrcka, I am satisfied , was not sufficiently con-
versant with Haren's reporting time as compared with the times when other employees
reported to make an objective criticism , nor was he in position fairly to have criticized
the manner in which Haren washed the butter room. Smrcka's criticism of
Loetscher 's dirty clothes seems like a self-confessed exaggeration in view of his own
testimony that the nature of his work was such that his clothes were bound to become
dirty. Furthermore , I do not believe that Smrcka was in close enough association
with Loetscher , particularly when the latter did maintenance work, objectively to
criticize his performance . Such comment as he made in his testimony of his work was
at best equivocal. It is noteworthy that neither Eichman nor Smrcka registered com-
plaints about Hazen or Loetscher to management officials before they were discharged,
so that their opinions or observations could have had no bearing on Jensen's or
Jorgensen 's decision to discharge them.
As to Hiko Kor's criticism of Loetscher , it is revealing that he claimed to have
complained about him only once to Jorgensen in mid-December 1955. This , pecul-
iarly, is a time when Loetscher was working as a relief driver and not in the ware-
house with Kor. This evidence is further confused by Kor's testimony that he spoke
of his desire not to have Loetscher assigned to him only to Jorgensen , and the latter's
confirmation thereof. Yet Jensen testified that it was to him that Kor said this,
and even claimed that Kor had complained to him about Loetscher more than once,
and that one of these occasions could have been in December 1955. Little credence
can be given to this confused presentation.
Regarding the contention that Haren and Loetscher chronically came to work
late and that this was a factor motivating their discharges , the record shows that
the Respondent does not have a rigid common reporting time for its employees
comparable to that in other industrial plants where employees begin work at the
sound of a whistle or bell and end their daily employment after a fixed number of
hours at another signal. Instead, the Respondent's employees are required to report
either at variable or uniform times dependent upon the nature of the work to be
done with the added requirement that they remain on their jobs until their special
assignments are completed . This condition applied to Haren and Loetscher, and as
to this there appears to be no dispute between the parties . The record also shows that
Haren and Loetscher , as distinguished from other of Respondent 's employees who had
the same classification of general helper, were "swing" or relief men. As such they
generally did not know until they came to work what duties would be assigned to
them. This being so, there is logical reason for belief of Haren's testimony, which
was not expressly rebutted , that he was instructed in July 1955 not to report before
7:30 a. in. for this would avoid inactivity on his part before Jensen determined what
his assignment was to be. Because , like Haren , Loetscher did not regularly know in
advance what his daily plant duties would be, there would be equal reason for ac-
ceptance of his testimony that his inexact reporting times between 7 and 7:55 a. in.,
most however occurring before 7:30 a. in., did not evoke official criticism. Sig-
nificantly, the timecards show numerous reporting times before 7 a. in. for
both employees , more so for Haren than Loetscher , ostensibly for special duties
as to which they had been given prior notification, and there is no complaint that they
had failed to come to work on time on any of these occasions . Nor is there any
complaint that Loetscher ever failed to report promptly for his duties as a driver.
OSCEOLA COUNTY CO -OPERATIVE CREAMERY ASSOCIATION 773
I am convinced from the foregoing that neither Haren 's nor 'Loetscher's reporting
limes were so specifically or firmly designated as to warrant a conclusion that each
time they clocked in after 7 a. in. automatically constituted a late arrival to work, and
that their records for punctuality are not so flagrant as the Respondent would have it
appear from the raw timecard statistics . I am also satisfied that there were times
when both Haren and Loetscher failed to report at desired or expected times, that
when Haren , after July 1955, failed to report to work by 7:30 a. in. this constituted
a late arrival except for those occasions when having worked late on a preceding night
he came to work the following day after 7:30 without being considered late, and that
there were occasions when Haren was contacted by telephone to determine whether or
when he would report . I am not, however, convinced and do not find that such lack
of punctuality was taken so seriously by either Jensen or Jorgensen that it had any
impact on their decision to discharge Haren and Loetscher . Had the records of late
reporting by these employees been as intolerable as the Respondent contends, it
seems unbelievable in the light of common industrial experience that this condition
would have been permitted to continue for as long as the Respondent would have it
appear that it did without corrective action such as a clear warning of discipline or the
imposition of punishment to end this practice which the Respondent claims was so
disruptive to its operations . The absence of such clear warning or discipline before
January 12, 1956, and the abrupt imposition of the drastic punishment of that date is
in my view explained by the fact , as I find it , that Haren's and Loetscher 's reporting
times did not become a matter of concern to the Respondent until these employees be-
came active in the Union and their activities became known to Jorgensen.
In sum , while Haren and Loetscher may not always have reported to work promptly
and did not uniformly wear the white attire required by the Respondent of its em-
ployees, although Loetscher may occasionally have stopped his work to "shoot the
breeze" and to skylark , and although Haren did not always clean the ice cream ma-
chines suitably , I do not believe that these derelictions of duty or breaches of rules
caused their discharges . The Respondent could have discharged them with impunity
for any of these reasons , or for no reason. The fact, as I see it, is that they were
not discharged for any of these reasons . In the sense of the Fifth Circuit Court's
opinion in the Magnolia Petroleum case 15 the Respondent 's evidence of long-standing
complaints about Haren and Loetscher without disciplinary action against them until
they instigated and led the union movement impels the conclusion that until the union
issue arose , the complained of acts "were condoned and would have continued to have
been condoned ; and that the straw that broke the back of [ the Respondent's] tolerance
and condonation" was the union activities of Haren and Loetscher . Reinforcing this
conclusion is the Respondent 's implausible and unconvincing explanation for their
discharges , Jorgensen's hostility towards unionization , his attempt to identify Haren
and Loetscher as the Union 's leaders before their discharges , and his comment after
their discharges that now other employees would abandon the Union. I conclude that
by discharging Haren and Loetscher for the foregoing reasons the Respondent violated
Section 8 (a) (3) and 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above , occurring in con-
nection with its operations described in section I, above, have a close , intimate, and
substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices it
will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. It has been found that Re-
spondent discriminated in regard to the hire and tenure of employment of Edward A.
Loetscher and John H. Haren. It will be recommended that the Respondent be or-
dered to offer to them immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to seniority or other rights and privileges.
See, The Chase National Bank of the City of New York, San Juan , Puerto Rico,
Branch, 65 NLRB 827 . It will further be recommended that the Respondent make
Loetscher and Haren whole for any loss of pay suffered by reason of the discrimina-
tion against them . Loss of pay, based upon earnings which they normally would
15 Magnolia Pet) oleum Co v N. L R B , 200 F. 2d 148 (C A. 5)
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have earned from January 12 , 1956 , the date of the discrimination against them, to the
date of offer of reinstatement , less net earnings , shall be computed on a quarterly
basis in the manner established by the Board in F . W. Woolworth Company, 90 NLRB
289; N. L. R. B. V. Seven-Up Bottling Company, 344 U. S. 344.
Because by its conduct found to be violative of the Act the Respondent infringed
fundamental rights guaranteed by the Act, the commission of other unfair labor prac-
tices may thereby reasonably be anticipated. It will therefore be recommended that
the Respondent cease and desist from in any manner infringing upon the rights guaran-
teed its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Osceola County Co-Operative Creamery Association is an employer within the
meaning of Section 2 (2) of the Act, and is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, AFL-CIO, Local No . 909, is a labor organization within the meaning
of Section 2 (5) of the Act.
3. By discriminating with respect to the hire and tenure of employment of Edward
A. Loetscher and John H. Haren, thereby discouraging the free exercise of rights
guaranteed by Section 7 of the Act and discouraging membership and activity in the
above-mentioned labor organization , the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
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 Labor Management Rela-
•tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities in behalf of The Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL-CIO, Local No. 909, or in or on behalf of any other labor
organization of our employees, by discriminating in any manner in regard to
hire, tenure , or any term or condition of employment.
WE WILL offer to Edward A. Loetscher and John H. Haren immediate and'
full reinstatement to their former or substantially equivalent positions without
prejudice to their seniority or other rights previously enjoyed by them, and make
them whole for any loss of earnings as a result of the discrimination against
them.
WE WILL NOT in any manner interfere with , restrain , or coerce our employees
in the exercise of the right to self-organization , to form labor organizations, or
to join or assist the above-named or any other labor organization to bargain
collectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from engaging in any or all such activities, except to
the extent that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment in conformity with
Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of any labor organization except to the extent above stated.
OSCEOLA COUNTY CO-OPERATIVE
CREAMERY ASSOCIATION,
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.