Pure-Vac Dairy Product Corp.

National Labor Relations Board - Board Decisions

Oct 14, 1964

148 N.L.R.B. 1682 (N.L.R.B. 1964)

1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Alvah H. Jones and Edward A. Brown immediate and full
reinstatement to their former or substantially equivalent positions , without preju-
dice to their seniority or other rights and privileges , and make each of them
whole for any loss of pay he may have suffered as a result of our discrimination
against him.
WE WILL make whole Junious E. Parker, Walter D. Tate, Hoyt A. Teller, and
Donald J. Paquin for any loss of pay which each may have suffered as a result
of our discrimination against them.
All our employees are free to become or remain or to refrain from becoming or
remaining members of the above-named or any other labor organization.
ASSOCIATED NAVAL ARCHITECTS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460,
Extension 2100, if they have any questions concerning this notice or compliance with
its provisions.
Pure-Vac Dairy Products Corp. and R. E. Moore. Case No. 26-
CA-1669. October 14, 1964
DECISION AND ORDER
On April 22, 1964, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in unfair labor practices as alleged in the com-
plaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Charging Party filed excep-
tions'to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the Trial Examiner's-findings,
conclusions , and recommendations.
[The Board dismissed the complaint.]
148 NLRB No. 165.
PURE-VAC DAIRY PRODUCTS CORP.
TRIAL EXAMINER'S DECISION
1683
STATEMENT OF THE CASE
This case,l heard before Trial Examiner Frederick U. Reel at Memphis, Tennessee,
on March 24, 1964,2 pursuant to a charge filed the previous October 23, and a com-
plaint issued February 28, 1964, presents primarily the question whether Respondent
discharged R. E. Moore for union or concerted activity, and also whether Respondent
thereafter threatened to cause Moore trouble or bodily harm for exercising his rights
under the Act.
At the conclusion of the testimony both sides argued briefly on the record, but no
briefs were filed. Upon the entire record, and upon my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER, AND THE LABOR ORGANIZATION INVOLVED
Respondent, a Tennessee corporation engaged in Memphis in the manufacture of
ice cream and related products, annually both receives from, and ships to, points
outside the State of Tennessee, goods and materials valued in excess of $50,000.
Respondent admits, and I find, that' it is an employer engaged in commerce within
the meaning of the Act. General Drivers, Salesmen, and Warehousemen's Local
Union 984, affiliated with the International Brotherhoood of Teamsters, Chauffeurs;
Warehousemen and Helpers of America, herein called the Union, is a labor organiza-
tion which for some years has represented Respondent's drivers in collective bargain-
ing, and has negotiated collective agreements with Respondent.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The discharge of Moore
1. Moore 's employment, and his resort to the union to secure "drop pay"
Respondent employed Moore as an "extra" driver from June 17 to October 19,
going on over-the-road runs as the need arose for an extra driver. He was paid on a
mileage basis , but did not receive "drop pay" which the regular drivers received, at the
rate of $1 per "drop" or delivery, pursuant to a new contract between Respondent and
the Union, effective July 1. During the summer months Moore frequently mentioned
to various minor supervisors and drivers that he believed he should also draw drop
pay, but he was uniformly advised (incorrectly, as we shall see) that as an extra driver
the drop-pay provision of the contract did not apply to him.
On October 16, some 3 months after Moore first raised the question of his right,
to drop pay, he went to the union office and asked the assistant business.representatlve,
Holliday, whether drop pay -was due him under the contract. Holliday told Moore
that he was entitled to the money, and promptly called Arthur Kissell, Respondent's
general manager. Kissell, who ,was on friendly terms with Holliday, and who over the
years had enjoyed a cordial relationship with the Union, promptly agreed to pay
Moore in accordance with Holliday's construction of the contract.
The next day Moore telephoned Kissell to ask for a loan, which Kissell-in what
Moore described as a friendly manner-was regretfully unable to grant. In that
conversation, Kissell mentioned the drop pay matter. to Moore, asking: "What is this
about your going down and talking to Mr. Holliday, complaining about not drawing
any drop pay?" Moore replied (erroneously, according to Holliday's later testimony)
that he had not gone to see Holliday but had telephoned him. Kissell then said that
he had been under the impression Moore "was only making milk runs" to which
Moore replied that Kissell knew better as he saw and approved the trip tickets. Then
Kissell stated that he had been told Moore had agreed with Luttrell and Sherrod, the
shop steward and foreman, respectively, not to draw drop pay, but Moore denied
having made any such agreement.
2. The events of October 19
Two days later, on October 19, shortly after noon, when Kissell came back to the
plant from lunch, he met Moore and several other drivers outside his office. Kissell
asked the drivers to wait there a minute as he had several matters to discuss with them.
1 The number of the case appears as corrected at the hearing
2 All other dates herein refer to 19r,3 unless otherwise indicated
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He entered the office and emerged with a number of "tickets" in his hand-bills or
reports that the drivers had filled out. Kissell spoke to each of the drivers concerning
various shortcomings or mistakes which the driver had made in filling out the ticket.
In some cases the drivers had omitted to put on the ticket the unit number of the
vehicle serviced. In other cases they had used the wrong charge account. Each of
the drivers, except for Moore, quietly admitted the mistake or mistakes he had made.
Two of them, called as witnesses for the General Counsel, testified-that sessions of
this sort with Kissell were not unusual, and that this interview was no different in tone
from its predecessors.
After speaking to the other drivers, Kissell, in due course, came to Moore and
addressed him in a manner similar to that he had employed in speaking to the others.
He reproved Moore for faults similar to those committed by the others-failure to fill
out the tickets properly, use of the wrong charge, and, an item peculiar to Moore's
case, running out of gas on one occasion which eventuated in the need for a wrecker
to extricate Moore's truck from the mud on the shoulder where he had parked it. Un-
like the other drivers Moore did not quietly admit the mistakes Kissell called to his
attention, but instead sought to explain or defend his actions. He observed that he
was "lucky to remember signing the tickets," let along putting the unit numbers on
them. He asked what difference it made which of the oil companies he used for
charge purposes. He explained that the gas gauge on the truck was broken, that it
should be fixed, and that Kissell should not have waited so long to ask about the
wrecker bill, which was received in August. (Kissell at the hearing gave a plausible
explanation for not having looked into the wrecker matter at an earlier date.) At some
point during their discussion, in the course of defending his inattention to details on
the tickets, Moore pointed out that one episode occurred shortly after his son had been
killed in an accident. Kissell indicated sympathy over Moore's loss but said that he
had a business to operate; Moore apparently regarded the expression as insincere and
retorted that he did not want Kissell's sympathy. Kissell, realizing that their tempers
were rising, suggested that Moore go out and let Kissell continue with his work.
Moore, however, continued the discussion, repeating his self-exculpatory statements
and his criticisms of Kissell for being unreasonable in his requirements and for his
delay in taking up the wrecker bill. Finally Kissell lost his temper. Stating that he
would not tolerate disrespect from anyone on his payroll, he accused Moore of ridi-
culing him in front of the drivers and ordered Moore to vacate the premises perma-
nently, adding that Moore was "an unpaid union organizer" and that Kissell did not
need his services anyway.
3. Concluding findings with respect to the discharge
General Counsel's case, briefly summarized, is that Moore resorted to the Union to
obtain the money due him under the union contract, and that Respondent fired him
that same week, with the comment that he was an unpaid union organizer. Although
these matters, standing alone, would create a prima facie case, and in some circum-
stances would justify a finding of discriminatory discharge, I am satisfied from my
observation of the witnesses, and upon consideration of the entire record, that Moore's
discharge was in no way the result of his union activity and that, notwithstanding
Kissell's reference to "unpaid union organizer," Moore was discharged solely because
of his conduct on the fateful day.
The testimony, not only of Kissell, but also of Luttrell and Dunivant, two of the
truckdrivers who were called as witnesses by General Counsel, convinces me that
Kissel] embarked on the conversation with Moore in the same tone and spirit, and
with the same purpose, that marked his conversations at the time with the other
drivers Only when Moore became argumentative, self-exculpatory, and critical of
Kissell did the latter's temper rise. Even then, Kissell sought to avert the eventual
outcome, and told Moore to let the matter drop. But Moore, once the conversational
bit was between his teeth, was incapable of heeding the advice, and literally talked
himself out of a job.
This finding is reenforced to some extent by my observation of Moore's demeanor
as a witness. The trancript reflect to some degree his loquacity, his inability to
respond directly to questions, his tendency to wander into irrelevancies, his repetitive-
ness, and his somewhat combative need for self-justification. The record also leaves
little room for doubt that Moore's testimony as to the events of October 19 was unre-
liable; for example, he was positive that he was singled out for early attack, whereas
the other witnesses agreed that Kissell spoke to each of the regular drivers present
before coming to Moore This is not to say that Moore was deliberately perjuring
PURE -VAC DAIRY PRODUCTS CORP. 1685
himself; on the contrary , I am convinced that Moore was attempting to testify truth-
fully. But it is apparent from the record , and was even more painfully apparent at
the hearing , that Moore rather quickly becomes so emotionally involved in this type of
situation that he loses normal perspective and both sees and hears only what his
self-justifying eyes and ears desire to see and hear. I am therefore constrained to
credit Kissell 's version of the conversation rather than Moore 's, insofar as Kissell
attributes to Moore somewhat more argumentative , critical , and contentious remarks
than Moore would admit to.
It may well be that Kissell should have been more patient with Moore, who had
suffered a family tragedy only 6 weeks before, and whose conduct in the interview
might have been recognized as merely the manifestation of his particular personality
rather than as a studied affront. But the issue in this case is not whether Kissell acted
wisely or patiently or charitably , but whether he was motivated by antiunion reasons.
The record attests his cordial relations with the Union and there is little to suggest
that he felt serious irritation over having to pay Moore $50 for the drop pay due
him for the past 16 weeks. This leaves, of course , the one troublesome factor;
Kissell 's reference to Moore as an "unpaid union organizer." I am well aware
that if union activity is only part of the reason for the action , the violation is estab-
lished . N.L.R.B. v. Jamestown Sterling Corp ., 211 F. 2d 725, 726 (C.A. 2). But in
this case Kissell's epithet , which followed immediately his statement that Moore
should permanently leave the premises , seems to me an outburst unrelated to the
actual cause of the discharge . As I view the facts , the only cause of the discharge
was the employee 's conduct in the interview , and the epithet served merely as a vent
for Kissell 's anger rather than a cause of it. Kissell, in short, would have discharged
any employee , union or nonunion , who had irritated him as Moore did on that
occasion.
I find that General Counsel failed to sustain his burden of proving , by a preponder-
ance of the evidence , that Moore was discharged for engaging in activities protected
by the Act.
B. Alleged threats violative of Section 8(a)(1)
Moore's wife testified that one day within 2 weeks after Moore 's discharge , Kissell
telephoned her at home . According to her testimony , Kissell complained that Moore
had been bothering employees on the company premises , that Moore had no business
there , and that if the Company needed Moore , Kissell would call him. Kissell also
commented , according to Mrs. Moore, on Moore's having gone to Holliday about
drop pay, and concluded , "If he is looking for trouble , he will get it." General
Counsel alleges that the last quoted statement was a threat directed to Moore for
exercising his rights under the Act.
Assuming that the statement in question was made at all, it seems far more likely
that it referred to Moore's admitted tactic after his discharge of causing trouble for
Respondent by advising ICC representatives of alleged derelictions on Respondent's
part. But in any event I am reluctantly compelled to discredit Mrs. Moore 's testimony
that Kissell telephoned her about this matter . She denied ever calling Kissell at his
home, testimony controverted by Kissell and to some extent by Luttrell, a truckdriver,
who testified that Mrs. Moore called him , warned him of Moore's efforts to cause
trouble for Respondent 's trucks, and then asked Luttrell for Kissell's home telephone
number . Kissell's version of his telephone conversation with Mrs. Moore comports
with Luttrell 's version of his conversation ; indeed, Kissell attributed to her the state-
ment that she had just telephoned one of the other drivers to let him know of Moore's
efforts to have the trucks stopped and checked. Mrs. Moore went so far as to deny
that she ever called anybody to warn them about Moore's efforts to have the trucks
stopped . I believe that , like her husband , Mrs. Moore gave testimony which was in-
accurate in significant respects ; her misstatements , although understandable under all
the circumstances, seem to me more conscious than his. In any event , I, credit Kis-
sell's testimony in this respect , and find that he made no threat to cause trouble for
Moore if the latter exercised his rights under the Act.
The complaint also alleges that on November 21, Foreman Sherrod threatened
Moore with "bodily harm if he continued to exercise his rights under the Act."
Moore testified that on that day he telephoned Sherrod and reproached him for having
said that Moore started an argument with Kissell . Sherrod replied , according to
Moore, that the matter was "over with," and when Moore said it had not "even begun
yet," Sherrod said he and two other drivers were "going to get" Moore. This threat
was probably responsive to Moore's having made trouble for the drivers by having
the trucks stopped and checked , rather than to his exercise of his rights under the Act.
760-577-65-vol. 148-108
1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But, in any event, Sherrod, who was only a foreman, left the Company's employ over
2 months before the hearing. In my judgment, it would not effectuate the policies.
of the Act to issue a remedial order based solely on an isolated unauthorized threat by,
a foreman who is no longer employed by the Respondent.
CONCLUSION OF LAW
Respondent has engaged in no unfair labor practice warranting the issuance: of a
remedial order.
RECOMMENDED ORDER
The complaint herein should be and hereby is dismissed.
Willard Bronze Company and Larry Martin . Case No. 9-CA-
3012. October 15, 1964
DECISION AND ORDER
On July 22, 1964, Trial Examiner Abraham H. Mailer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices, and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Decision. The Trial Examiner also
found that the Respondent had not engaged in other unfair labor-
practices. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman McCul-
loch and Members Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the,
entire record in the case, and hereby adopts the findings, conclusions,.
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,.
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order as modified as fol-
lows: The folowing paragraph shall be added as paragraph 2(b),.
and the previous paragraph 2(b) and subsequent paragraphs of the
Trial Examiner's Recommended Order shall be renumbered
accordingly :
148 NLRB No. 163.