Sealtest Southern Dairies

National Labor Relations Board - Board Decisions

Mar 23, 1960

126 N.L.R.B. 1223 (N.L.R.B. 1960)

SEALTEST SOUTHERN DAIRIES 1223
Section 8 ( a) (1) thereof . See N.L.R.B v. Lander Shoe Corp. d/bla Bruce Shoe Co.,
211 F. 2d 284 (C.A. 1); Ray Brooks v. N.L.R.B., supra; and Alamo White Truck
Service, Inc ., supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with its business 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 Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent has refused to bargain collectively with the
Union as the exclusive representative of the employees in the appropriate unit. I
shall therefore recommend that Respondent, upon request, bargain collectively with
the Union as such representative and, in the event an understanding is reached,
embody such understanding in a signed agreement.
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. Lumber and Sawmill Workers, Local 2608, United Brotherhood of Carpenters
& Joiners of America, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
2. Firchau Logging Company, Inc., is an employer within the meaning of Section
2(2) of the Act.
3 All production and maintenance employees of Respondent at its Lyman
Springs, California, woods operation, excluding log scalers, office clerical and
professional employees, guards, and supervisors constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
4. Lumber and Sawmill Workers, Local 2608, United Brotherhood of Carpenters
& Joiners of America, AFL-CIO, was on May 8, 1959, and at all times thereafter
has been and now is the exclusive representative of all employees in the aforesaid
appropriate unit for the purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing on May 8, 1959, and thereafter to bargain collectively with
Lumber and Sawmill Workers, Local 2608, United Brotherhood of Carpenters &
Joiners of America, AFL-CIO, as the exclusive representative of its employees in
the aforesaid appropriate unit, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed by Section 7 of the
Act and has thereby engaged in unfair labor practices within the meaning of
Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Sealtest Southern Dairies, National Dairy Products Corpora-
tion and Samuel M. Chambliss . Cases Nos. 10-CA-3685, 10-CA-
3958, and 10-CA-3960. March 23, 1960
DECISION AND ORDER
On July 13, 1959, Trial Examiner Eugene Dixon issued his Inter-
mediate Report in these cases, finding that the Respondent had en-
gaged and was engaging in violations of Section 8(a) (3) and (1)
426 NLRB No. 139.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, and recommending that it cease and desist from the unfair
labor practices found, and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the Respondent filed exceptions to the Intermediate Report, together
with a supporting brief.
The Board i has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
With the exceptions indicated below, the rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions,
and brief, and the entire record in the case, and hereby adopts the
findings,2 conclusions, and recommendations of the Trial Examiner
to the extent that they are consistent with this decision.
A. Procedural matters
Before the hearing opened the Respondent filed with the Regional
Director motions requesting that the General Counsel be directed to
answer certain interrogatories asking, in effect, for more particular-
ized allegations of the complaint, and to produce for copying and
inspection any statement or memorandum given or made by Richard
Phillips, Robert Bridges, and Burkett Black. The General Counsel
filed a response to these motions praying for their denial. The motions
were referred to the Chief Trial Examiner and had not been ruled
upon by him or by the Trial Examiner assigned to hear the case by
the date the hearing opened. When the hearing opened, the Re-
spondent renewed its motion for the production of the statements of
Phillips, Bridges, and Black, but did not mention its motion involving
the interrogatories. The Trial Examiner ruled as to the renewed
motion, that, in accord with the Board's Rules and Regulations, the
Respondent would have to wait until the General Counsel had the
witnesses involved on the stand before the Respondent would be
entitled to have the pretrial affidavits or statements it requested.
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Leedom and
Members Bean and Jenkins]
z The following are inadvertent errors appearing in the Intermediate Report, which we
hereby correct, as follows. (1) the "wipe out and start afresh" suggestion referred to by
the Trial Examiner was made by Obershain to Rhyne in the course of their intra-
management conferences in Atlanta at the end of May and early July. Vice President
Bowen's memorandum of July 1957, which suggests reductions in personnel, makes no
reference to the department in which the employees here involved were working; (2) to
the extent that footnote 25 suggests that, when the Respondent referred to Black's
derelictions in violating the rule concerning the making of sales tickets when taking out
merchandise it was referring to Black's "stealing of such merchandise," the implication
is unsupported by the record The record shows that Black, as shipping clerk, was re-
quired to "ticket merchandise" going out of the plant or the "aggregating machine" and
that he as well as other employees subject to this "ticketing" rule were careless about
following it from time to time-at least before the Respondent posted a notice stating
that further violations would be cause for discharge. As the Trial Examiner correctly
notes , Respondent does not claim any further violation of the rule after such notice
was posted.
SEALTEST SOUTHERN DAIRIES 1225
After the General Counsel completed his direct examination of his
witnesses, the pretrial affidavits of such witnesses were produced at
the renewed request of the Respondent and were used by its counsel
for the purposes of cross-examination. The General Counsel then
offered them in evidence. The Respondent objected to the broad
nature of the offer, stating that such statements could properly be
included in the record solely to provide a basis for resolving issues as
to the credibility of the witnesses, rather than as evidence of the truth
or falsity of the factual statements therein made. Apparently view-
ing these affidavits as having the effect of records of past recollection,
the Trial Examiner admitted them in evidence without limitation:
and, as indicated more fully below, subsequently predicted certain
minor though relevant subsidiary findings of fact on evidence appear-
ing in such affidavits but at variance with the oral testimony.
The Respondent claims prejudice by reason of the foregoing action
or inaction of the Trial Examiner and variously requests that all the
findings of the Trial Examiner be vacated, that the hearing be set
aside, and the complaint be dismissed. While, for the reasons here-
after indicated, we agree that some error was committed, we find the
Respondent's claim of prejudice to be without merit.3 The rulings of
the Trial Examiner of which it complains neither interfered with
the Respondent's presentation or conduct of its case, nor otherwise
preempted our consideration of the substantive violation issues in the
course of what was unquestionably a fair hearing.
We agree with the Respondent that the pretrial affidavits here ad-
duced in evidence have no independent testimonial value and, in
accord with the weight of authority, must be looked to solely as
measures of the credit of the individuals who testified at the hear-
ing.' The Trial Examiner's misconception of their value in some
9 So far as the interrogatories motion is concerned , we note that when the General
Counsel completed the presentation of his case the Respondent proceeded without any
claim of surprise nor any request for additional time to obtain or present evidence with
regard to the alleged violations of the complaint . In these circumstances we might
properly regard Respondent 's interrogatories motion as having been waived. In any
event , we regret such motion and the accompanying pretrial motion for production of
affidavits as seeking , in effect, the benefit of pretrial 'discovery procedures afforded to
parties to judicial proceedings by the Federal Rules of Civil Procedure . It is, however,
clear that such discovery procedures are not available in Board proceedings as a matter
of right and that denial of them to the Respondent does not amount to a denial of due
process See Del E. Webb Construction Company, 95 NLRB 377, footnote 2; Cadillac
Marine & Boat Company, 115 NLRB 107, 108; Baltimore Steam Packet Company, 120
NLRB 1521, 1522 , Chambers Manufacturing Corporation, 124 NLRB 721 ; N.L.R.B. v.
Globe Wireless , Ltd., 193 F. 2d 748, 751 (CA. 9).
Further, as to the Respondent 's attempt to obtain the affidavits of Black, Bridges, and
Phillips in advance of their testifying , the Trial Examiner's ruling on the matter is in
accord with the Board's Rules and Regulations . Sec. 102 95 of Series 7, as amended.
The same rule is now incorporated in Series 8 of the Board's Rules and Regulations
(effective November 13, 1959 ) as Sec . 102.118.
4 N L.R B. v. Quest -Shoe Mark Brassiere Co., Inc., 185 F. 2d 285 (C.A. 2). Cf. J. G.
Braun Company, 126 NLRB 368 . No foundation was laid for giving these affidavits the
effect of records of past recollection.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instances was therefore an error-though not a prejudicial one war-
ranting the drastic action the Respondent now requests. The most
that is called for is modification and correction of subsidiary findings
to accord with the proof tendered at the hearing and a reappraisal
,of the record, in the light of the corrected findings, to determine what
actually occurred.'
In so holding, we have given due regard to the Respondent's chal-
lenges of the basic credibility findings of the Trial Examiner. We
are, however, satisfied that his determinations as to which witnesses
be deemed to be credible and which he regarded to be unworthy of
credit in resolving material conflicts in testimony, should be sustained
and followed.' For we do not deem the variances between the oral
testimony given by Bridges, Black, and Phillips at the hearing and
the statements they made in the pretrial affidavits to be of such sig-
nificance as to provide, alone, the basis for holding, contrary to the
finding of the Trial Examiner, that the testimony of these witnesses
on material points, should not be believed.' Thus, the troublesome
inconsistencies concerned the date on which an episode involving
Superintendent Martin and employees Bridges and Black allegedly
,occurred, rather than the fact that the episode occurred,' and the
occurrence of the episode goes solely to the question of the Respond-
ent's knowledge of the concerted activities of the employees sub-
sequently discharged. The oral testimony of the employees concern-
ing the episode and placing its occurrence as of about June 1 is both
inherently plausible and consistent with reasonable probability. As
indicated more fully below, the evidence thereby adduced as proof
of the Respondent's knowledge of its employees back-to-the-union
activities was corroborated, in many instances, by the testimony of
other employees-many of whom were called as witnesses by the Re-
spondent-and by circumstantial evidence. Contrariwise, we observe
5 We hereby make the following corrections of errors in the Intermediate Report re-
sulting from the Trial Examiner 's reliance on the affidavits : ( 1) The episode first re-
ferred to by the Trial Examiner in footnote 13, occurred on or about June 1, rather than
on or about July 7 , (2) the overtime restrictions effected following the decertification cut
permissible overtime from as high as 78 hours to 48, rather than from as high as
80 hours to 48.
Owe have frequently pointed out that because of the unique position occupied by a
Trial Examiner in observing the witnesses at a hearing it is the Board ' s established policy
not to disturb his basic credibility findings absent a persuasive showing -not here made-
that such findings are clearly erroneous . Standard Dry Wall Products , Inc., 91 NLRB
544, enfd 188 F. 2d 362 (C.A. 3).
7 See footnote 5, supra. We note that the Respondent filed an extensive brief with the
Trial Examiner on the merits in which it quoted extensively from the pretrial affidavits
of Bridges , Black , and Phillips in support of an argument attacking the credibility of
these witnesses and urging the credit of its own witnesses on points of conflict. While
it argued that inaccuracies and inconsistencies in the testimony and/or the affidavits
warranted rejection of the witnesses' testimony , it admitted that they were "small "
s The inconsistencies between Black ' s testimony and the affidavits go solely to the
amount by which paid overtime was reduced after the decertification While the fact
that overtime was restricted (following the decertification) has relevance-and this is
not disputed-the exact amount of the restrictions is immaterial.
SEALTEST SOUTHERN DAIRIES 1227
that the testimony of such managerial officials as Martin, Rhyne,
and Obershain on points material to the case, is inherently implausible
and at variance with the largely. admitted facts concerning their
.animus against the Union and their active interest and effective par-
ticipation in bringing about the Union's decertification. Accordingly,
while we have modified the Trial Examiner's findings of fact to
accord with the oral testimony given at the hearing, we have fol-
lowed the Trial Examiner's basic credibility findings.
B. The substantive issues
The sole substantive issue presented for determination is whether
the Respondent was motivated by antiunion considerations in dis-
charging Black, Bridges, and Phillips on or about July 14.
The discharge action alleged to be violative of the Act occurred in
a factual backdrop disclosing both management animus against the
Union and management's predilection to take active measures to elimi-
nate the Union from its midst without regard to the obligations im-
posed on it by the Act. As is set forth more fully in the Intermediate
Report, an active and successful campaign to decertify the Union
which had represented the employees for many years was conducted
by Black shortly before May 15,9 with the open approval, assistance,
and sponsorship of all the Respondent's supervisory agents responsible
for the operation of the plant, including Obershain, Rhyne, and
Martin.10 The nature of the managerial interest and participation in
the decertification of the Union is more particularly indicated by the
following facts :11 (a) When Black went to Rhyne in January of 1958
with an offer to persuade the employees to withdraw from the Union
and to effect its decertification and ouster, Rhyne promised, and sub-
sequently gave, Black assistance to this end and a reinstatement to
his previous, higher paid, shipping-clerk job; (b) Rhyne told Martin
of Black's visit to Rhyne's home, and of its purpose in the course of
a discussion concerning Black's reinstatement to the shipping-clerk
job. He also advised Martin at that time that Black would be engag-
The date the Union lost the decertification election by a vote of 19 to 2.
io Respondent 's district general manager , plant manager , and plant superintendent, re-
spectively . Obershain ' s offices were in Atlanta and his responsibility extended to a num-
ber of plants in his district . Rhyne and Martin were immediately responsible at the
Chattanooga plant
"While some of these facts are incorporated in the Intermediate Report, others are
not. However , all are predicated on a composite of the testimonial admissions of Rhyne,
Obershain , and Martin and on Black 's version of the events of which he had knowledge
While no part of these managerial activities during the decertification campaign are com-
pla'ined of or found to be remediable unfair labor practices ( as they occurred more than
6 months before the charges herein were filed) we, like the Trial Examiner , have con-
sidered them as background evidence relevant to a determination of the motivation and
credibility issues forming the crux of the alleged 8(a)(3) violations Dan River Malls,
Incorporated , 125 NLRB 1006; American Life and Accident Insurance Company of
Kentucky , 123 NLRB 529 . Cf. N.L.R.B. v. Pant Milling Co ., 360 U.S. 301 ; N.L.R.B. v.
White Construction and Engineering Co., Inc., 204 F. 2d 950 (CA. 5).
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing in decertification activity during working time and instructed
Martin not to interfere, even though such activity might detract from
Black's proper performance of his job ;12 (c) Rhyne reported con-
cerning these events to Obershain (in Atlanta) and kept him advised
of the progress of the decertification campaign; (d) Rhyne personally
urged the employees to decertify the Union in a speech made at a
dinner given by the Respondent for the employees shortly before the
decertification. The sponsorship and approval of this activity by
higher management officials was clearly demonstrated by the presence
at such dinner of Respondent's labor relations director; (e) Rhyne
intimated at that time that the employees would benefit from a de-
certification of the Union and, shortly after such event Respondent
granted the employees a general wage increase of 5 cents per hour
(although it also made other changes in working conditions which,
as indicated below, the employees found unsatisfactory).
Shortly after the Union was decertified pursuant to the above cam-
paign, the Respondent effected restrictions in overtime grants to an
extent which caused dissatisfaction among the employees and pro-
voked some of them to expressions both of regret over the abandon-
ment of the Union and of a desire to bring the Union back. A
composite picture of this mutually corroborative testimony of the
employees concerning this back-to-the-union talk and "rumors" about
this through the plant, shows that such talk went on from about the
end of May or the beginning of June and continued thereafter. It
shows also that Black, Bridges, Smallen, Phillips, and Robinson, all
of whom worked together on the "platform" or the "rear" of the plant,
variously discussed going back to the union; that some among these
(and particularly Black, Bridges, and Phillips) expressed themselves
as being in favor of going back to the Union; that Black was a prime
instigator of such discussions; and that Black told some of these
employees that he would try to effect more concrete plans looking to
reinstitution of the Union.l3
While the Respondent denied that it acquired any knowledge of any
such back-to-the-union talk or activity among the employees, we agree
with the Trial Examiner that such denial is unbelievable. The plant
was a small one (approximately 30 to 39 employees), and as above
indicated, it was managed by individuals who had demonstrably
evinced not only their desire to be informed of antiunion interest
12 Martin's testimony concerning these instructions was that he was advised merely that
Black would be engaging in activities approved by Rhyne during working time and that
Martin was to let him do so; but that Martin was not told what Black's activities would
consist of , did not inquire , and did not know We find Martin 's asserted lack of
knowledge highly incredible , especially since the instructions were given in the context of
Rhyne's report to Martin concerning Black's visit to Rhyne.
'2 Black was looked upon by the employees as a "leader " among them in such matters.
He had been a union steward prior to the Union's decertification and, as noted , success-
fully "led" the campaign for the decertification.
SEALTEST SOUTHERN DAIRIES 1229
among their employees but also their willingness to participate
directly in a program designed to, and succeeding in, bringing about
the Union's ouster as the bargaining agent. Furthermore, there is
credible evidence that: (1) on or about June 1, Bridges told Martin,
in response to the latter's query as to the topic of the conversation
between him and Black that they had been discussing unsatisfactory
work conditions and that, "by the way, we were going to get back in
the Union as soon as we could"; 14 (2) in or about the third week of
June (3 weeks before the discharges), while Superintendent Martin
stood about 20 feet away, Phillips was openly discussing with Black
and Robinson the dissatisfaction with present work conditions and
how it had been a "mistake to vote out the Union;" 15 and (3) Rhyne,
who had been very friendly towards Black in the period preceding the
decertification, became noticeably cold in his attitude toward Black
during this latter period of Black's advocacy of a return to the Union.
From all of the foregoing circumstances we may properly and, in
agreement with the Trial Examiner, do find that the Respondent was
aware from the end of May that its employees-and more particularly
those above mentioned-were discussing a return to the Union as a
means of remedying their dissatisfaction with the changed work con-
ditions placed in effect shortly after May 15.16
Rhyne met with Obershain in Atlanta at the end of May or early
part of June to discuss management problems, and Obershain planned,
at such time, the personal visit he subsequently made to the Chatta-
nooga plant. It is fairly inferrable in light of the extent and nature
of management 's interest in its employees' union affairs, that the
matter of the resurgence of employee interest in the Union was dis-
cussed on one or both of these occasions, together with other opera-
tional problems of an economic nature." As appears from the testi-
mony of both Obershain and Rhyne, the decision to discharge all the
employees on the "rear" or "shipping" platform and "to start afresh"
evolved out of the discussions held at this meeting in Atlanta. The
discharge decision was apparently deferred pending Obershain's
planned personal visit to the Chattanooga plant. As has been indi-
cated, the back-to-the-union talk was largely concentrated in the
"rear" or "shipping" platform where Black, Bridges, and Phillips
14 Our fact finding , in accord with the testimony of Black and Bridges, that this episode
occurred on or about June 1, does not affect the general analysis made by the Trial
Examiner in the Intermediate Report of the reasons supporting the credibility determina-
tions there set forth . Apart from the corrected data, we affirm and adopt that analysis.
15 Phillips testified that, while this was "ordinary conversation ," they were probably
speaking louder than usual, as "we were pretty mad about it when we was [sic] talking"
1s Of. Wiese Plow 'Welding Co, Inc., 123 NLRB 616, on the issue of employer knowledge.
17 We note , in this connection , the testimony of management agents attributing to the
prior existence of the Union and the contract between the Union and the Respondent
the management ' s alleged inability to take the steps deemed necessary to resolve long-
standing operational problems.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked, and managerial agents had identified these three men as,
active sponsors of this prounion activity.
Obershain actually visited the Chattanooga plant in the first week
of July together with a divisional accountant whose task was to "set
up the stage" for transferring of accounting records to the Atlanta,
office." In the course of this visit, he "reminded" Rhyne of their-
Atlanta discussions concerning the "rear" or "shipping" platform and
of the suggestion he had made at that time to "wipe out the rear of
the plant and start afresh." About one week later, and on or about
July 12 or 14, all of the employees on the "rear" platform, including
Black, Bridges, and Phillips were in fact discharged. The employees
involved were given no warning of this action and no intimation of
its possibility. Contrary to usual plant procedures, all but Bridges
and one other, were advised of their dismissal by Rhyne, rather than
Martin (their immediate supervisor). The only reason assigned them
for the action-and according to Martin, the only one given to him
as the basis of the action was "reduction in force" 19-a patently false
explanation as the Company contemporaneously recruited and staffed
its "rear" or "shipping" platform with new employees.20
The reasons the Respondent claims to be the "true" reasons under-
lying the decision to dismiss the employees here involved were sup-
plied by it at the hearing as follows : (1) "complete inefficiency" by
the individuals involved, including specifications that Black was,
"lazy and goldbricking"; that Phillips was incompetent and "gold-
bricking"; and that Bridges had been identified as "stealing" the
Respondent's products; and (2) that the dismissals represented a
solution to the very serious inventory and product-loss situation
which had existed for many months and which was costing the Re-
spondent about $1,000 per month.
As the Trial Examiner pointed out, the specified charges of in-
dividual deficiencies on the part of each of the three individuals,
proved, on examination, to be wholly pretextual in nature. As to
Black, for example, the record shows that: (a) he was twice singled
out by his supervisors for exceptional performance as an employee;
(b) he had no absence from work over his 131/2 years of employment;
(c) he had been reinstated to his shipping-clerk job as requested by
18 The consolidation in Atlanta of all accounting procedures involving the various plants
in Obershain ' s divisions had been a move under consideration for about a year Such
consolidation was originally suggested by Respondent 's vice president , Bowen, in a
memorandum to Obershain dated July 26, 1957 , as a means of reducing personnel.
19 Superintendent Martin testified at the hearing that he never requested the discharge
of any of these employees, and that according to what Rhyne said to him concerning the
discharges in July, the employees were discharged solely as "a result of the cut in
personnel "
2O As indicated above, Respondent concurrently effectuated the accounting consolidation
plan , which contemplated a reduction in force, but only of office personnel A number of
"office" employees were in fact discharged as a result at about the same time that the
employees here involved were dismissed . The former were not replaced , but the latter
were
SEALTEST SOUTHERN DAIRIES 1231
him when he offered to help with the decertification; and (d) Martin,
his immediate superior, testified that he was unaware of any "reason"
for Black's discharge. As to Phillips, who had 30 years record of
employment with Respondent, his superiors admitted that Phillips"
job of loading and unloading products called for no exercise of special
skill and cited, as the sole instance of dissatisfaction with his work,
that Phillips was slow in crating of a machine more than 1 year prior
to discharge. As to Bridges, the charge of "stealing" was predicated
on employee Neal's having told Martin sometime in June 1958, that
he and Bridges and Smallen had occasionally taken home "old" milk
and ice cream products of the Respondent intended for the "dump,21
and that Neal himself had recently taken home a half-gallon of "old"
ice cream. Martin told him this was "all right," but cautioned him
that the Respondent required merchandise tickets to be put in for all
products leaving the premises. So far as the record shows, however,
neither Martin nor anyone else in authority discussed the matter with
Bridges, and, according to Martin (Bridges' immediate superior)
the episode had "nothing to do" with any of the discharges-the
employees involved were discharged "solely because of the cut in
personnel."
We come, finally, to an analysis of the testimony of the Respond-
ent's officials to the effect that its decision to dismiss all of the "back-
room" people represented an attempt to cope with the very serious
inventory-loss situation. More fully stated, the Respondent's claim
is that all the measures to control the problem having failed, it de-
cided on or about June 1, that "the only solution" that remained was
to fire all the "back-room" people (as they had "access to the prod-
ucts") and "to start afresh" with new personnel.
The serious economic need of the Respondent for some solution to
its inventory-loss difficulties tends to lend such plausibility to this
particular explanation, that reasonable men may wonder why the
Respondent felt it necessary to offer those other "reasons" for the
discharges which were demonstrably unfounded in fact. However,
the concurrent and subsequent actions of the Respondent in investi-
21 "Dump" products were those that the Respondent deemed not fresh enough to sell to
customers . Apparently, employees were free to take such products home provided they
put in "tickets" for goods so taken . The memorandum written by Obershain to Rhyne in
October 1958 after Obershain's investigation of conditions at the Chattanooga plant
criticizes management policy at that plant with reference to "dump" products in terms
indicating that management "allow[ed] dump products to be given away from the dumps "
This description of management policy is not consistent with the Respondent's implica-
tion that the employees taking of dump products amounted to "stealing " Apart from
Neal's statements, as above noted, there is nothing in the record to establish that Bridges
was, in fact, "taking" any of the Respondent 's products without putting in the mer
cliandise slips. In any event, the question here to be resolved is not whether the taking
of the "dump" products might have been a proper cause for discharge but whether this
was in fact the ground for Bridges' discharge We are convinced on the entire record,
that this ground was offered as an afterthought or pretext for a discharge otherwise
motivated
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gating the causes of the heavy inventory losses establish clearly, in
our view, that, as is true with its other offered "explanations," this
particular justifying claim represented an "afterthought" attempt to
use what could have plausibly been regarded as an economic reason
for discharge as a means of concealing its real motive. Thus, the
objective evidence establishes both management knowledge, prior to
the discharge, that a large number of employees other than the "back-
room" people had "access" to the Respondent's products, and that the
firing of the "back-room" people was neither a solution nor the only
solution to the inventory-loss problem. As has been noted above,
-Obershain came to the Chattanooga plant early in July (and shortly
before the discharges here involved were effected) and, among other
things, conducted a personal survey of conditions in the plant relating
to the larger inventory losses. Obershain's findings, based on that
survey, were incorporated in an interoffice memorandum from him to
Rhyne dated in October 1958. This shows that Obershain found
ordinary objective security measures, for which management was
responsible, to be so neglected that "it was possible that all of [the
Company's] milk products could be stolen without any chance of
-detection" and that the management's policy at that plant to "allow
products to be given away from the dumps automatically allow [ed]
for the possibility of excessive dumps. . . ." In specific terms con-
nected with the lack of security measures, he mentioned : (1) the
absence of a lock on "the pass door of the milk storage"; (2) the lack
.of keys for the trucks carrying the Company's products to and from
the plant; (3) the failure of management to make certain that, when
the plant was closed each night, the areas where products were stored
or kept-usually, the shipping platform, the cabinet department, the
garage, the ice cream and milk trucks, and the milk cooler-were each
of them securely locked. Significantly, this intermanagement memo-
randum-written some 3 months after the discharges-indicates a con-
tinuation of the losses at about the same monthly rate as had appeared
for approximately 8 or 10 months prior thereto, despite the changes
of "back-room" rank-and-file employees, and makes no reference to
the change in reporting on the investigatory survey. Also, while the
record indicates management's concern and knowledge of the problem
for any months prior to July, it fails to show that anyone in authority
interviewed any of the employees concerning the problem.22 Nothing
in these facts-all of which were exclusively within management
knowledge-supplies credible evidence supporting management's al-
leged conclusion that the "back-room" workers, rather than, for ex-
:a In partial explanation of this, management agents explained that they felt barred
from taking any action against employees while the union contract was in effect This,
'however, does not represent the facts, for as -the Trial Examiner points out, the Respond-
ent effected both reduction in force and dismissal for cause during the term of the union
,contract Nothing in the latter bars management action for economic reasons.
SEALTEST SOUTHERN DAIRIES 1233
ample, such other workers as truckdrivers (who were not under the
same constant supervision as these inside the plant workers) were
more responsible for inventory losses.
In light of all the foregoing circumstances, we find that Obershain's
plan to "wipe out the rear of the plant and start afresh," which was
formulated at about the same time as management acquired knowledge
of the back-to-the-union talk, was motivated by the same antiunion
considerations as prompted management's active participation in the
decertification of the Union. We have no doubt, on the record before
us, that management was opposed to the Union because it found it
economically more desirable to function without the controls imposed
by union contracts, as its agents so frankly indicated on the record.
The law, however, forbids management action directed to forestalling
effective union organization-and the dismissal of employees believed
to be working toward that end is most strongly forbidden.
We conclude, accordingly, that the Respondent discharged Burkett
Black, Richard Phillips, and Robert Bridges, on July 14, 1958, in
order to prevent the reestablishment of the Union, and because man-
agement believed these employees were working to that end. In so
doing, the Respondent violated Section 8(a) (3) and (1) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, its officers, agents,
successors , and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Truck Drivers and Helpers Local
Union No. 515, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other labor organiza-
tion of its employees, by discharging any of its employees, because of
their concerted or union activities, or in any other manner discrim-
inating in regard to their hire or tenure of employment or any term or
condition of employment.
(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 the Union, or any other labor organization, to
bargain collectively through representatives of their own choosing,
or to engage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a) (3)
554461-60-vol. 126-79
1234 DECISIONS JF NATIONAL LABOR RELATIONS BOARD
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Burkett Black, Richard G. Phillips, and Robert E.
Bridges immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority or
other rights and privileges.
(b) Make whole Burkett Black, Richard G. Phillips, and Robert E.
Bridges for any loss of pay each may have suffered as a result of
Respondent's discrimination against him in the manner set forth in
the section of the Intermediate Report entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amounts of backpay due and
the rights of employment under the terms of this Order.
(d) Post at its plant at Chattanooga, Tennessee, copies of the notice
attached hereto marked "Appendix." 23 Copies of said notice to be
furnished by the Regional Director for the Tenth Region shall, after
being signed by Respondent's representative, be posted by Respondent
immediately upon receipt thereof and maintained by it for 60 con-
secutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for the Tenth Region, in writing,
within 10 days from the date of the receipt of this Decision and Order
what steps Respondent has taken to comply herewith.
23 In the event that this Order is enforced by a decree 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 Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Truck Drivers and
Helpers Local Union No. 515, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization, by discharging any of our em-
ployees because of their concerted or union activities, or in any
SEALTEST SOUTHERN DAIRIES 1235
other manner discriminating in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form a labor organization, to join the aforesaid labor
organization, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, or to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities except to the extent that such rights may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL offer Burkett Black, Richard G. Phillips, and Robert
E. Bridges immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their sen-
iority or other rights and privileges.
WE WILL make whole Burkett Black, Richard G. Phillips, and
Robert E. Bridges for any loss of pay suffered as a result of our
discrimination against them.
All our employees are free to become, remain, or refrain from
becoming or remaining, members of any labor organization.
SEALTEST SOUTHERN DAIRIES, NATIONAL
DAIRY PRODUCTS CORPORATION,
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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10(b) of the National Labor Relations
Act, as amended ( 61 Stat. 136), herein called the Act , was heard at Chattanooga,
Tennessee , on February 24 and 25, 1959 , with all parties represented . Two com-
plaints were issued, one on December 18, 1958, the other on January 28, 1959, by
the General Counsel of the National Labor Relations Board (herein called the
General Counsel and the Board ), based on charges duly filed and served. The
complaints , consolidated for hearing , allege in substance that Respondent had en-
gaged in unfair labor practices proscribed by Section 8(a)(3) and ( 1) of the Act
by discriminatorily discharging Burkett Black , Richard G . Phillips, and Robert E.
Bridges on July 14, 1958, because they engaged in concerted activities with other
employees for the purpose of collective bargaining and other mutual aid and
protection.
Respondent 's duly filed answer denies the unfair labor practices alleged.
All parties were afforded full opportunity to examine and cross -examine wit-
nesses, to present oral argument, and thereafter to file briefs as well as proposed
findings of fact and conclusions of law. Briefs have been received from both the
General Counsel and the Respondent.
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent is and has been at all times material herein a Delaware corporation
engaged in processing and distributing dairy products throughout the United States.
At its Chattanooga, Tennessee, division during the 12 months preceding the issuance
of the complaints, which is a representative period, Respondent sold and shipped
products valued in excess of $50,000 from its Chattanooga, Tennessee, division
directly to customers located outside the State of Tennessee. There is no contention
to the contrary and I find that Respondent is engaged in commerce within the
meaning of the Act.
If. THE LABOR ORGANIZATION INVOLVED
Truck Drivers and Helpers Local Union No. 515, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The key issue in this case is whether or not, as alleged in the complaint, Respond-
ent discriminatorily discharged Burkett Black, Richard Phillips, and Robert Bridges
because of their "activities in and on behalf of the Union, and because they engaged
in concerted activities with other employees for the purpose of collective bargaining
and other mutual aid and protection." There is no independent 8(a)(1) conduct
alleged. What might have amounted to such conduct came into the evidence only
by way of background since it had occurred outside the 6-month limitation pro-
vided in Section 10(b) of the Act.
For a number of years as of the beginning of 1958,' the Union had represented
Respondent's employees as their collective-bargaining agent. Burkett Black, who
had been an employee for some 13 years but who had just been "rolled" 2 from his
job as shipping clerk at $1.40 per hour to truck loading at $1.17 per hour, was a
union steward. Unhappy about his demotion 3 and ostensibly about the Union's
failure to reopen the contract, Black made an appointment to see W. B. R. Rhyne,
the plant manager, at the latter's home on Sunday, January 12. There at that time
a deal was made whereby Rhyne promised to reinstate Black to the shipping-clerk
job in return for Black's offer "to help Mr. Rhyne . by getting the members
to withdraw from the union." 4 Together, Rhyne and Black drafted a letter of
resignation from the Union to be signed by each employee which Mrs. Rhyne im-
mediately typed. Strategy and details of the plan were discussed and Rhyne author-
ized Black to devote what time was necessary to accomplish his object. Black got
13 signatures the next day, going to the plant at 2 a.m. for that purpose. In the
meantime, Rhyne got in touch with his superior, District General Manager W. S.
Obenshain, Jr., in Atlanta, who told Rhyne he "would immediately contact legal
counsel" and instructed him not to get personally involved. As the matter de-
veloped, Black was called upon to get the signatures of the employees on two more
occasions, the last being on March 24 addressed to the Board and appointing Black
as their agent to file a decertification petition.
On May 15, the decertification election took place and the Union was voted out
by a 19 to 2 vote. Shortly prior to the election, Respondent gave a dinner for the
employees. Attending were Rhyne, a company attorney, and an industrial relations
man, all of whom spoke in support of decertifying the Union. In substance their
comments were to the effect that others of the Company's plants had decertified;
that decertification was the best thing for the employees as the Company could do
more for them than the Union could do. On this occasion, Rhyne took Black aside
and told him among other things "what a hero [he] would be" and how much the
Company appreciated what he had done. He also told Black (according to the
i All dates are in 1958 unless otherwise noted.
2 The term is synonymous with "bumped" In trade union parlance
8 Black complained "strenuously" to the assistant business agent of the Union about his
being "rolled" but could do no good for himself because the man who displaced him was
entitled to the job by reason of seniority provided for in the collective-bargaining contract.
41 do not credit Rhyne's testimony that he told Black he could make him no promises
about his job.
SEALTEST SOUTHERN DAIRIES 1237
latter's testimony) that he was going to make Superintendent Martin sales manager
and put Black on as superintendent of the plant.
About 2 or 3 weeks after the decertification (besides giving a general increase
of 5 cents an hour) the Company suddenly made a drastic cut in the amount of
overtime it would allow. The undenied and credited evidence shows that per-
missible and payable overtime was cut from as high as 80 hours a week to 48.
Black testified without denial that the only way he could keep within the order was
to punch out when he had reached 48 hours and work thereafter on his own time
until he had completed his duties which included checking in the drivers at night.
Perhaps as a result of this overtime restriction the employees also began experienc-
ing difficulty in getting help for such occasional tasks as unloading trucks.
Naturally, at this turn of events so soon after the Company's promise of better
things by reason of the decertification, the employees became unhappy. To what
extent if any this unhappiness was reflected in concerted action known to the
Company to bring back the Union is one of the important issues herein. The
Company denies knowledge of any such action and further contends that "there is
no convincing proof" that such action took place. The General Counsel's evidence
as to this matter is as follows:
Black testified on direct examination that apparently at the time he was told by
Plant Superintendent John Martin to keep his hours down to 48, he and Robert
Bridges were engaged in a conversation and he told Martin they "were talking
about signing back up in the Union." Martin replied "to hell with the Union, the
Union couldn't care anything about us." On cross-examination Black testified that
he complained to Martin about the "tightening up" by the Company at the time
Martin "got on to [him] about time." This was the only time he complained to
the Company prior to his discharge on July 14. He did not mention the matter to
Rhyne, explaining that "Mr. Rhyne gave [him] a cold shoulder after decertification.
He wouldn't even come back and speak to [Black]. Before that he was always
back and matching for cokes and jolly and happy."
Black also testified on cross-examination that during the 2-month period between
the decertification and his discharge on July 14, all of the employees were complain-
ing about the Company's tightened attitude. Asked if he had complained he replied,
"Well, just to say that things were getting rough.. Asked to whom he com-
plained, he replied, "Well, I couldn't say. Practically all of them. We were very
much dissatisfied with the conditions around there." He then named eight employees
with whom he spoke about the matter, Bridges, Phillips, Smallen, Glen McSpadden,
Earl J. McSpadden, Robert Pasley, Elbert McGregor, and Delmar Robinson. He
told them that they "certainly made a mistake by withdrawing from the Union. That
the Company hadn't kept their promises at all and of course, they all understood
that." Respondent's counsel then asked Black, "along those lines you begin [sic]
talking up the Union to the fellows?" Black answered "that is correct," and further
testified that he had at least one conversation with each of the employees he
named 8 in which he advocated, "let's go back to the union." He also told them
he "would find out just what the necessary steps were" to get back into the Union.
Black further testified that these back-to-the-union talks began about the middle of
June and that the employees were "very enthusiastic about going back." Notwith-
standing the foregoing testimony Black admitted that he never made any attempts
to get in touch with the Union about the matter prior to his discharge.
Johnny L. Smallen testified that on one occasion on the platform after the decerti-
fication he told Rhyne it looked like the employees "were gonna have to go back in
the Union if the hours didn't get any better." Rhyne made no comment on this
occasion. Smallen also testified that 3 or 4 weeks before he was discharged on July
14,6 he, Black, Bridges, and possibly Phillips, had a discussion in the shipping depart-
ment about getting the Union back. This conversation, he testified, was the only
one on the subject he had with anyone or heard in the plant and as to it he was
present only a few minutes because he was busy. His only recollection was that
"he [presumably Black] said that things wasn't getting any better and it look like
[the employees] would probably have to go back in the Union." When asked on
5 On cross-examination he added the names of Edmund Willis and W. D. Williams as
ones he thought he had spoken to about the matter. He further denied recollection of
talking to Baxter Kelly, Charles Petit, Carl Baxter, J. A. Elder, and Granville Johnson
9 Besides the three named as discriminatees herein, Smallen was also discharged on
July 14. So was Bryan Neal. In addition to these five, all of whom worked in the
shipping department or back end of the plant, two office employees were also let go on
that date Another employee in this category, Delmar Robinson , was on sick leave at
the time. When he returned to work about a week later he too was discharged.
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cross-examination if any "company person was around " he replied somewhat incon-
sistently with his prior testimony, "not that I remember. John Martin came up to
the door and we ceased the talk. We didn't say anything further." On Smallen's
further cross-examination it was brought out that in an affidavit he gave the General
Counsel he stated that they "talked about it on the platform one evening when [they]
were supposed to go to a union meeting that night" and that he was "sure Superin-
tendent Martin heard [them] talking." On further questioning he testified that
this was before the election, then said he could not remember. Thereafter he testi-
fied "No, it was after the election. No, I'm not sure." When shown his resignation
from the Union dated January 13, he testified that the conversation in question was
before he signed that document.
Richard Phillips testified that about 3 weeks before he was discharged with the
others, he told Delmar Robinson and Black that it had been a mistake to vote out
the Union. On this occasion Superintendent Martin was about 20 feet away. When
asked by the General Counsel if he was "speaking in a normal conversation tone, or
loud or soft?" he answered "just ordinary conversation. Well, we were pretty mad
about it when we was talking, I guess it would have been rather loud." He also
testified that he had been opposed to the decertification effort from the start and
was one of the two people who voted for the Union. On cross-examination he
admitted that on the sworn statement he gave the General Counsel's field examiner
he stated that "Mr. Burkett Black was a leader in getting the Teamsters Union
voted out but I worked pretty close with him in it." 7 He also testified that within
10 days after the decertification the men started grumbling about a bad deal in getting
out of the Union. His further testimony on cross-examination was that he did not
recall Smallen complaining about the matter nor did he ever talk to Black "individ-
ually" about it. Yet in practically the same breath he testified that he "told Mr.
Burkett Black he made a bad mistake, in getting rid of the Union" to which Black
replied "well, I don 't know."
Robert Bridges testified that about 2 weeks after the election on the occasion of
his not being able to get help to unload a milk transport , he went into the shipping
clerk's office to discuss the matter with Black. The latter said that the employees
"ought to get back in the union [ they] would know what was going on." He also
told Bridges "if we had a good strong union we would have men here on these jobs,
we wouldn 't have to go through this everyday running around trying to get men to
unload the transport ." Bridges agreed with him and that finished the discussion.
As Bridges came out of the office , Martin approached him on the platform and when
they were about 15 feet from the office asked what they were talking about. Bridges
replied that they were talking about help to unload the transport and added "and
by the way we were going to get back in the Union as soon as we could." Martin
said , "damn the Union ." On cross-examination Bridges further testified that on this
occasion Black had said he was trying to arrange a union meeting but later that
night in the washroom told Bridges to forget about the meeting for the time being
because "[they] were being watched constantly."
Respondent offered evidence as follows on the question of its knowledge of any
union activity on the part of its employees:
Both Superintendent Martin and Plant Manager Rhyne denied being told anything
about or by the employees pertaining to their interest in getting the Union back.
The comments by Black to Martin , Smallen to Rhyne, and Bridges to Martin as set
forth above were specifically denied. In addition, Respondent called 12 other
employees as witnesses most of whom denied any recollection or knowledge of any
conversations or comments prior to the discharges in question about sentiment among
the employees for return of the Union.
Of these 12, 6 (D. L. Robinson, L. J. McSpadden, Glen MeSpadden, Robert
Pasley, Elbert McGregor, and Edmund Willis) had been named by Black as em-
ployees with whom he had had at least one conversation before his discharge about
getting the Union back into the plant. Among these, D. L. Robinson 8 testified that
he had no recollection that "Burkett Black or anyone else" talked to him about going
back into the Union; that he heard nothing "more than just rumors that go around
all the time " These rumors he described as comments "just in joking ways" such
as "things are getting bad . . . we better get back in the Union." L. J. McSpadden
denied any specific conversations prior to the discharges but testified that it was
T The witness testified that he noticed this in reviewing his statement and that having
been "misstated" lie called it to the attention of the General Counsel who took another
statement connecting the matter.
6It will be recalled that Robinson was one of those discharged on the occasion that
Black and the other two alleged discriminatees were let go.
SEALTEST SOUTHERN DAIRIES 1239
"just like Delmar [Robinson] stated there was rumors going around like maybe
we shouldn't have got out of the Union and stuff like that." After the discharges,
according to McSpadden's further testimony he did have a conversation with Black
who said that perhaps they "shouldn't have got out of the Union," but who made
no mention of going back into the Union. Edmund Willis also denied participating
in or overhearing any conversation prior to the discharges about going back into
the Union but did testify that subsequent thereto Black called him at his home and
asked him if he was interested "in going back to the Union." Willis' reply was that
he would do what the majority wanted.
One other witness, Herman J. Webb (not named by Black as having been spoken
to by him) 9 testified that "especially when they begin [sic] to lay off some of the
men and change them around" he began to hear rumors of dissatisfaction with the
Company's policies. That was when Black spoke to him about going back into the
Union. At the time, Black was still working. He asked Webb what he thought
about going back in the Union. Webb told him "it was out and as far as [he]
was concerned it could stay out."
Analysis of the foregoing together with necessary credibility resolutions compels
me to conclude that Respondent was fully aware that the employees, at least
Phillips, Bridges, and Black, were overtly questioning the wisdom of having voted
the Union out and were talking among themselves about getting it back. That the
employees would be unhappy about the drastic cut in overtime was a result any
reasonably experienced employer could and would have anticipated. I am sure
that Rhyne was aware that this would happen and did happen which undoubtedly
accounts for the abruptness with which he ceased to fraternize with the employees
in the back, especially Black, after the decertification.1° The corollary to this
reasonable expectation is another equally reasonable one it seems to me . That is
that any unhappiness about lower take-home pay would naturally bring to mind
the Union. Not only were the employees injured by the loss of overtime but in
the circumstances they could not fail to feel that their intelligence had been insulted.
They had just rejected their bargaining agent on representations by the Company
that their lot would improve thereby only to have their working conditions deteriorate.
It would seem that any employer worthy of his employees' hire would under these
circumstances expect a remorseful reaction in favor of the Union.
While several of the Respondent 's witnesses whom Black claimed to have talked
to about getting the Union back disclaimed any recollection of such conversations,
two of them, Robinson and L. J. McSpadden admitted that there were "rumors"
going around the plant about getting "back in the Union." Also, another of
Respondent's witnesses, Herman Webb, confirmed the testimony about such rumors
and admitted that Black did talk to him before the discharges about going back
into the Union.li Whether or not this evidence standing alone would permit a
finding (in view of the small size of the plant) that Respondent was aware of this
development is unnecessary to decide since I credit Bridges' testimony ( against
Superintendent Martin's denial ) 12 that on the occasion that he and Black were
discussing the problem of getting help to unload the transport Bridges gave Martin
the subject matter of the conversation including the information that they were
going to get back into the Union as soon as they could.13
9 The arrangement to have this witness testify apparently was made by the General
Counsel. However, at Respondent's insistence he was put on the stand as Respondent's
witness
10 It will be recalled that Black testified that "Mr. Rhyne gave [him] a cold shoulder
after decertification. He wouldn't even come back and speak to [Black]. Before that he
was always back and matching for cokes and jolly and happy." I credit this undenied
testimony.
11 Respondent's attack on Webb's credibility on the basis of his previous statement
(apparently unsworn) made to Respondent's counsel that Black did not talk to him about
going back in the Union until after his discharge and on the further basis of Martin's
alleged 10-minute observation through binoculars of Webb and Attorney Chanibliss con-
versing just prior to Webb's appearance on the stand do not convince me that Webb's
testimony should be discredited.
12 The inconsistencies and contradictions in Martin's testimony as well as his demeanor
and appearance on the stand convinced me that his reliability as a witness was con-
siderably less than that of Bridges.
i In his testimony Bridges stated that this incident occurred 2 weeks after the election
or about 6 weeks before his discharge In an affidavit he made some months previous to
the hearing he stated that the incident occurred about a week before his discharge.
Since the affidavit was made closer to the event and presumably under less tension than
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent attacks Bridges' credibility in this matter in several ways. One in-
volves the testimony of Black who places the conversation as being between Martin
on the one hand and Black and Bridges together. Besides this conflict between
the two versions of the General Counsel's witnesses, Respondent claims that it is
improbable that Martin would have asked what Bridges and Black were talking
about in the platform office because it was impossible to see who was in the office.
That might be. On the other hand, since Martin testified that he spent 80 percent
of his time on the platform, he may have been fully aware that Black was in the
office with Bridges having seen him go in and not come out. As to the inconsistency
between the General Counsel's witnesses, it is likely that Black overheard Martin's
query and Bridges' answer so as to have considered himself a part of it. Respondent
further attacks the plausibility of this testimony on the grounds that Bridges'
"gratuitous remark" was inconsistent with "testimony that Black and he feared to
go to a union meeting because of being watched `constantly.' " Bridges' testimony on
this, it will be recalled, was that in their original conversation in the office Black
had said he was trying to arrange a meeting but that later that night in the wash-
room he told Bridges to forget about the meeting for the time being because
"[they] were being watched constantly." There is no inconsistency between this
statement and Bridges' remark to Martin. If Black had cautioned Bridges before
the latter made the remark to Martin, Respondent's contention would be correct.
But such is not the fact. As it stands, this testimony tends to support the General
Counsel's version in this matter if anything.
Respondent also points to the failure of Black or anyone else to contact the
Union before the discharges occurred as an indication that no union action was
being discussed or contemplated. On its face, in view of the time element here,
this contention has very little weight. In any event the circumstances here suggest
their own answer. From Black's background as the union steward and the part
he played in the decertification of the Union it is clear that he was looked upon
by the employees as the leader in such matters. Therefore, notwithstanding that
Phillips had opposed the decertification of the Union 14 and was one of two to vote
against decertification, only Black's failure to get in touch with the Union should be
questioned in this manner. And Black's failure is readily understandable. Having
so recently led the men out of the Union, Black certainly was in no position to
make overtures to the Union until he was sure he was in the position to deliver
a majority of them back to the Union.
On the basis of the foregoing I conclude and find that Respondent had knowledge
of the employees' unhappiness about the turn of events and that they were beginning
to look toward the Union for aid and comfort.15
The next question to be decided is whether or not this knowledge motivated
Respondent in discharging the employees in question. Respondent's evidence on
this matter, supported generally by company correspondence, was as follows:
In May of 1956 Rhyne took over the management of Respondent's Chattanooga
operation,16 described by Respondent's District General Manager Obenshain as a
"sick organization." According to Obenshain's further testimony, the Company
had long been aware of a number of internal problems "personnel wise" at
Chattanooga. These he did not explain other than to state that "a number of the
employees in Chattanooga had been with the Company a number of years." 17
After about a year of Rhyne's management at Chattanooga, Obenshain was "afraid"
that Rhyne, like his predecessors because of the employees' long employment "didn't
want to push them around." Rhyne's direction of the operation to this point had
been "disastrous." While the Company "made money on all the rest of [its] opera-
tions" it "had been losing at a great[ly] accelerated rate on the Chattanooga opera-
tion." The losses "were completely out of line with any operation of any size, much
his appearance on the stand I accept the date he gave in the affidavit as being the more
accurate of the two.
14 Despite this opposition he signed the decertification petition.
15 Having found that Bridges told Martin about a week before the discharges that the
employees were going to get back into the Union as soon as they could, I deem it un-
necessary (in view of the overall record here) to determine whether or not Smallen made
the comment he claimed to have made to Rhyne on the platform about going back into
the Union which Rhyne denied
1e Rhyne had previously been a zone manager in Respondent's Miami, Florida, operation,
without prior plant management experience.
17 The combined employment of the three alleged discriminatees was about 45 years.
Another employee let go at the same time but not alleged as an 8(3 ) had in excess of
30 years' employment with Respondent.
SEALTEST SOUTHERN DAIRIES 1241
less a small operation such as Chattanooga." The Company was not "getting the
same rate of efficiency out of the same cost factors" as in the other plants supervised
by Obensham.i$
On July 26, 1957, J. O. Bowen, executive vice president of Respondent, had
written a "personal and confidential" memo to Obenshain voicing skepticism about
the Chattanooga operation. Among other things he said:
It would seem to me that in the last few years our number one problem has
been personnel. We just do not have the people at the Chattanooga plant on
Southern Dairies' team outside of those who have been imported in the last
year or more.
After suggesting that the office be eliminated except for "Accounts Receivable and
an Office Manager," Bowen's letter went on.
I would suggest that we go still further . Lets give some consideration to
eliminating entirely the garage, letting the personnel in that department go. If
possible, eliminate the cabinet department, and hire your work done outside.
This will shrink the number of people that you have on the payroll there lower
than good business would dictate, but , on the other hand , after operating a few
months we can rehire and open those departments again . When we rehire, we
should have the services of a good personnel man who will probably screen the
people we put on the payroll.
As a result of this communication Obenshain called Rhyne to Atlanta where they
"evaluated his first years operation ." Bowen 's suggestions were discussed as well
as Chattanooga 's heavy inventory losses, one of the operations "worse factors."
Notwithstanding "weekly" discussions about the matter thereafter between the two
no action was taken . Obenshain "got a number of excuses" all centered around the
fact that the employees had long tenure and that Rhyne 's hands were tied by the
union contract.
On October 11, 1957, Obenshain wrote Rhyne as follows:
The profit figures for the month of September for the Division are extremely
bad. The 41 employees that you have in your plant are far too great for the
way we are running Chattanooga at the present time. Please review every
employee with Hugh Godard and advise me as quickly as possible how many
you can reduce.
No action having been taken by early December , Obenshain came to Chattanooga
and "issued instructions that the cabinet department and garage be closed and that
that work be given to outside firms, at the best possible bidder ." Because of the
season the move was not made until just after Christmas . Seven jobs were affected,
four in cabinets , two in the garage, and one plant engineer . It was this change
that "rolled" Black from his shipping-clerk job.
Sometime in March, convinced "that the outside method of handling the garage
was not giving enough day to day maintenance" the garage maintenance was rein-
stated. Nevertheless Chattanooga remained a problem within the division chiefly
because of its serious and worsening inventory losses. In May the matter was dis-
cussed on a visit to Chattanooga by Obenshain who told "Rhyne that he would have
to solve this particular problem and straighten out the plant and get it under control"
or Obenshain would do it himself. At the same time the consolidating of account-
ing in Atlanta and the closing of the office was discussed . Later in the same month
a meeting took place in Atlanta where the latter move was decided upon.
Whether before or after this last meeting does not appear in the record, but on
May 27 Obenshain wrote to each of his operations in part as follows:
I am certain that you are aware that none of us fully faced up to the
situation in this division until the last several weeks. I hope that now we have
all faced up to the need for drastic curtailment. If you have not evaluated
every department and reduced personnel , do so at once . I will either see you
in person, or talk to you by phone within the next week concerning what cut
backs you have already made. This Division can reduce thirty-five people and
the time is now. Some of you have plans for leaving on vacations . Let's be
sure that these steps have been taken in each department of your organization
before you leave.
We all agreed a week ago today that we would take immediate steps to cut
back. What have you done in your zone in the past week? Advise me as
quickly as possible.
Is Besides Chattanooga , Obenshain had Knoxville , Atlanta, Birmingham , Montgomery,
New Orleans , Amarillo , and Denver under his supervision
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Obenshain's further testimony, early in July when he was in
Chattanooga with the divisional accountant for the purpose of "setting up the stage
for the transferring of the records to Atlanta," they "again got into the problem of
inventory control." Obenshain had issued instructions that they "would have to
clean up throughout the plant." Since the steps Rhyne "had taken had not been
sufficient to control" the matter Obenshain told him that "the only solution [he]
saw was to wipe out the rear of the plant, reorganize [the] method of control and
start over." On July 12 Rhyne, to save his own neck, as he put it, followed
Obenshain's suggestion and discharged Black, Bridges, Phillips, and Smallen plus
two unnamed office employees.
The undenied and credited evidence as to the circumstances of the discharges is as
follows:
July 12 was the last day the three alleged discriminatees worked. On Monday,
July 14, when they reported for work they were discharged-summarily and with-
out warning. The separation notices given to them all stated the reason for the
separation to be a reduction of personnel. On the occasion Martin told Black "that
it had to be done, that was all." According to Black's further undenied and credited
testimony, during the process of his being discharged, Martin was at the clock
showing a new man how to punch in and asking him to bring in his social security
number. Rhyne told Phillips "I have bad news for you" as he gave him his check.
Phillips said this is "rather sudden, isn't it?" Rhyne commented, "Oh, well, you
have two weeks advance in your pay." As Bridges arrived he encountered Black
who told him, "Well, buddy, we have had it. You can go to the office and get
your money." Bridges thereupon went to the clock to see if his card was there and
met Martin who gave him his wages but offered no explanation for the discharge.
According to Bridges' further undenied and credited testimony, although he did not
find his card at the clock he did see four strange cards in the rack. He also saw
some new men dressed for work in the hardening room standing by smoking.
The evidence further shows that the Respondent ran a classified advertisement in a
Chattanooga newspaper July 21 as follows:
Young man 25 to 35 willing to learn our business. National Organization
Excellent future for right man. Apply in person 9 to 12 noon Monday. No
phone calls. Sealtest. 457 Dodson Ave.
All three of the employees testified without contradiction that they had had no
complaints about their work and no warnings as to any possible disciplinary action.
Black further testified credibly and without denial of having been commended on
his work in the past by two former managers. One by the name of Crews told him
he was "doing a fine job." Another manager, Kennedy, gave him a letter of com-
mendation, a copy of which went to Respondent's general office. Black also testified
without contradiction that he had worked "six days a week for approximately six-
teen and a half years and didn 't miss a day... " 19
Besides Respondent's evidence about these discharges already noted the record
further reveals that on January 20, 1959, Respondent's attorney wrote the General
Counsel's field examiner stating that the "layoffs were a result of complete in-
efficiency by the individuals involved and by the entire shipping and box sections
of the Employer's plant. For some period of time the inventory of supplies in the
freezers had been out of balance, and it was felt that the responsibility must be
placed on the individuals who had access to the products. Those were the in-
dividuals laid off."
In this connection Respondent put into evidence a communication from Obenshain
to Rhyne dated October 13, 1958 (3 months after the discharges) stating:
You have received a letter from Cliff Wayne with reference to your milk
department losses for the first eight months of this year.
The milk losses in the Chattanooga operation, based on dollar volume, are
the worst in the Company. The really alarming figure is an inventory loss of
$8660. This compares with a loss for the same period in Atlanta of $1392.,
and New Orleans of $113. This means one thing: Either internally or out-
side your operation, you have had stolen products valued at over $1000. a
month. From my checking in Chattanooga last week, I am amazed that only
$8000. worth of products have been stolen since I am sure that all of our milk
products could be stolen without any chance of detection. I hope by this time
you have had a lock put on the pass door in the milk storage and that keys
have been made for all of your trucks. When the plant is closed each night it
19 Either the reporter misheard or Black misspoke because it is clear from prior testimony
by Black that his term of employment with Respondent was about 131/ years . I so find.
SEALTEST SOUTHERN DAIRIES 1243
is essential that the three doors opening in the milk cooler be locked, that the
shipping platform be locked, the ice cream storage, the cabinet department,
the garage and all of the milk and ice cream trucks.
I hope by this time you have arranged for Arthur Wietzel to open the plant
at five-thirty in the morning. This will mean that all of the keys should have
been taken up from the route salesmen and the locks changed on the gates.
When you realize that the entire inventory losses in this Division only amount
to $10,000, you can see what your $8660. loss had done to our record.
Your dump losses have amounted to $10,075. in the first eight months of
this year. This figure is equal to the dump losses in Atlanta and in Charlotte
and I am sure that you are aware of the difference in volume in these markets.
I am aware of the need for keeping fresh products in the storage, which con-
tributes to the high dumps in your market, but there still is a possibility that ,this
is excessive because of lack of control. Any time that you allow products to
be given away from dumps, you automatically allow for the possibility of ex-
cessive dumps.
The inventory loss figure for the entire Company for the first eight months
is almost exactly the loss figure in your plant. Please take steps at once to
control this serious situation.
The total milk loss for this Division, year to date, is $123,000. against
$106,000. last year. We have taken an already high figure and increased this
loss by $17,000. This figure of $123,000. is out of a total Company loss of
$351,000. In other words, we are responsible for over one-third of the entire
milk loss in the Company.
In support of Respondent 's charge of inefficiency on the part of the employees
in question, Rhyne testified that during his entire tenure at Chattanooga, Black had
been "lazy and goldbricking." Rhyne explained that he had reinstated Black to the
shipping -clerk job despite these shortcomings because of the union contract 2° He
also testified that he felt he could not discharge anyone under the union contract
except for certain stated causes such as excessive accidents , stealing, and drinking
on the job.21 He further testified that he had warned Black several times about
taking mechandise without making sales tickets and finally posted a notice that
such action would be grounds for dismissal. He never "caught" Black violating the
rule after the notice was posted . He also charged on the stand that Phillips had
been "goldbricking" from the start. In support of this charge he cited an instance in
April 1957 when Phillips took "two days to crate up [a] machine . . . which could
have been done in 3 or 4 hours."
As for Bridges (who by reason of low seniority was laid off in the year -end move
that discontinued the garage and cabinet work and who was rehired about the middle
of April), Rhyne testified that he along with Bryan Neal and Smallen, was laid off
for "stealing" Respondent's merchandise . Rhyne was informed of the matter by
Martin early in June.22 Martin had been told by Neal that he had been "taking
stuff ." He also told Martin that Bridges and Smallen were "taking stuff" too.23 On
relaying the information to Rhyne, the latter told Martin "that he needed more
proof or something more substantial" as a basis , presumably, to discharge them. In
conflict with Rhyne's testimony that Neal, Bridges , and Smallen had been let go for
taking Respondent 's products , Martin testified that stealing "had nothing to do with
the discharge actually" but that "they were discharged as a result of the cut." As
for Black's discharge , although Martin was Black's immediate superior and usually
was the one who discharged employees ,24 Martin was unable to testify concerning
the reason for Black's discharge nor could he offer an explanation of his own other
than to maintain that it had "nothing to do with the Union."
21 Black was restored to the job prior to the decertification election.
21 Notwithstanding this testimony, the evidence shows that he did discharge a route
salesman , after due warnings , for letting his "route go down."
21 Martin testified that he went to Rhyne with "a problem . . . about some unusual
conditions" regarding stealing that was going on in the plant. Rhyne testified that in
view of the information he told the night watchman to check the matter. A couple of
weeks later he got a report from the night watchman that unnamed employees were
"carrying off bags when they would leave to go home." The watchman also reported that
the employees were engaged in "more loafing than working "
as In his testimony Neal admitted talking to Martin about the matter telling him that
some of the employees whom he named including himself had been taking some of the
old milk and old ice cream that they had been hauling to the dump. Martin told him it
"was all right."
24 It was he who discharged Bridges and Smallen.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
As I understand Respondent's purported defenses regarding the discharges in
-question, Respondent long had considered (at least since the middle of 1957 as re-
flected by Executive Vice President Bowen's letter to Obenshain) the possibility of
weeding out its Chattanooga roster of employees, who had become the Company's
"number one problem" there. Presumably this purpose was based on three
grounds: (1) the need for a general reduction in force; (2) the elimination of in-
efficient "goldbricking" employees; and (3) the curtailment of employee stealing of
Respondent's products.
Analysis of the record shows that none of those reasons are supported by the
evidence Respondent offered.
1. Reduction in force: Regardless of what legitimate need there may have been
in Respondent's overall organization for reducing personnel , it is patent that the
discharges here were not for that purpose because on the day they were discharged
others were being hired. Furthermore additional recruitment was going on a week
later as evidenced by the Company's newspaper advertisement.
2. Inefficiency: The one factual matter produced in Respondent's evidence to
support this charge was that leveled against Phillips regarding the crating of a
machine over a year before the discharge occurred. And even this item has its
basis not on fact but on Rhyne's opinion. Furthermore, it is the only dereliction
attributed to Phillips who had over 30 years of employment with Respondent. The
undenied and credited factual testimony of Black certainly refutes Respondent's
unsupported claim that he was an undesirable "goldbricking" employee. Twice
commended by his superiors for meritorious performance , completing his duties on
his own time after the cutback in overtime , 131 years ' employment without an
absence are hardly the hallmarks of inefficiency and goldbricking . And if Bridges
was "inefficient" and undesirable as an employee the question arises as to why
Respondent rehired him in April. Clearly the evidence does not support Respond-
ent's contention here.
3. Stealing: Notwithstanding Respondent 's general charge in this respect as is
evidenced by the various allusions to its inventory losses in the testimony and in the
letter from its counsel to the Board on January 20, 1958, the substance and logic
of its evidence belies this contention . Nowhere in Rhyne's testimony does he assign
stealing as a reason for Black's discharge . 25 And Martin in his testimony denied
that it played a part in the discharge of Bridges or the others whom Neal named to
Martin . Significant , too, in weighing this matter is the fact that nowhere in the
many items of company correspondence concerning the Chattanooga operation does
anything appear about inventory shortages until Obenshain 's October 13 letter to
Rhyne, some 3 months after the discharges took place. Two observations regarding
this letter are pertinent. First, the tone of it bespeaks of the currency and first
impression of the problem 26 Second , the statement, that the losses arose "either
internally or outside" shows that there was no conviction that the losses emanated
solely from the employees in question or for that matter the employees as a whole,
and the statement about having keys made for trucks shows that if the platform or
shipping employees were considered as being involved , so were the drivers.
The inventory-loss figure of over $1 ,000 a month obviously was a serious matter.
It was also of such magnitude that to ascribe it all solely to the five employees in the
shipping department is and was unrealistic to say the least. Thus limited it would
almost have been necessary for the five to have been running Respondent's products
out by the truckload. Considering these circumstances there is no logic or persua-
rze His earlier warnings to Black can hardly serve in this respect particularly when he
made it clear that after the notice he never "caught" Black stealing again
28 Obenshain speaks of being "amazed" at things he found in a personal examination of
the week before. By this observation I do not mean to imply a finding that this was the
first occasion that Respondent may have been concerned with inventory shortages at
Chattanooga . I am sure that Respondent is always concerned with that problem at
Chattanooga as well as elsewhere I do feel, however, that the sense of amazement and
urgency reflected in the letter certainly detracts from the impression Respondent attempts
to create , that the climax on this matter was reached just before the discharges and that
they were in any way the result thereof. Moreover , it is significant , I believe , that no
mention is made in the letter of any previous discussions or directions regarding the
situation although several such discussions were alluded to in Obenshain ' s testimony and
the matter allegedly had been the subject of an ultimatum by him. Furthermore,
Obenshain 's admonition to Rhyne in this letter to "Please take steps at once to control
this serious situation " belies any previous ultimatum on the subject.
SEALTEST SOUTHERN DAIRIES 1245
siveness in Respondent's claim that it discharged these five employees to remedy its
inventory losses. The implausibility of such action becomes even more pronounced
when viewed in the light of the logical and realistic steps it took some 3 months
later to remedy the matter. As with the other specific reasons Respondent attempts
to justify the discharges, this matter of stealing its products simply does not stand
up under scrutiny. Apart from the failure of these specific matters to explain the
discharges, other aspects of Respondent's conduct lead to the conclusion that it had
an ulterior motive here. The fact that Martin, Black's immediate superior, did not
know why he was being discharged, the fact that no warnings were ever given to
the men about their purported inefficiency, and the fact that no explanation was given
Phillips with over 30 years' tenure are all significant.
If Chattanooga was such a "sick organization" one wonders why Respondent
chose to send an inexperienced and untried man as Rhyne to the post. Starting with
this question and reviewing the Respondent's actions regarding Chattanooga I get
the impression that the only inefficiency demonstrated by the record was manage-
ment's and not that of the rank and file. But as is pointed out in Respondent's brief,
it is not for me or the Board to substitute our judgment for that of management
in how its business is to be run. Moreover, I am fully aware that "Management
can discharge for good cause, or bad cause, or no cause at all ." and further that
the burden of proof rests on the General Counsel and that "The Employer does not
enter the fray with the burden of explanation." However, if explanations are offered
they certainly should be applicable to the matters for which offered whether or not
they be considered good, bad, or indifferent. Here, Respondent's explanations
simply do not explain and their failure to explain, falling as they do so wide of
the mark, leads to the conclusion that there is a hidden motive here. If Respondent
had a valid reason for its conduct outside the purview of the Act all it had to do
was to show it, but the reasons shown by Respondent were patently not valid.
However, the record does reveal a valid explanation. Indeed, it is the only explana-
tion poss ble on the basis of the evidence herein. This explanation is that the
Respondent became alarmed at the employees' renewed interest in the Union as a
bargaining agent and decided to eliminate that threat as a current or future
possibility.27 I find such to be the fact.
The alacrity with which Respondent agreed to Black's proposal to get rid of the
Union and the aid it gave Black to that end demonstrates its distaste for the Union.
Moreover, Respondent's officials repeatedly professed frustration with the require-'
ments of union recognition and its collective-bargaining contract. Having so neatly
eliminated the Union and its restraints, apparently Respondent saw no reason to
chance their return. Respondent's contention that the part played by Obenshain in
this matter shows that there was no union motivation "because he did not even know
the individuals discharged under his order" is not persuasive. While Obenshain
testified that he did not know who the "people were who were fired," I doubt that
he was as ignorant about their identity as he professed. If the executive vice president
of the general office located at Charlotte, North Carolina, knew enough about the
personnel at Chattanooga to say they were the Company's "number one problem"
there, it would follow that the official under whose immediate jurisdiction they
worked would be at least as familiar with them 28 Furthermore, the evidence shows
that Rhyne promptly got in touch with Obenshain about Black's proposal to lead
the men out of the Union and reported to Obenshain from time to time thereafter
about union developments. There is no reason to assume that Rhyne discontinued
this practice when the Union was decertified.
Respondent's attempt to relate the discharges back to Executive Vice President
Bowen's "wipe out and start afresh" suggestion also lacks persuasiveness. In the
first place the lapse of time between that suggestion (not "order" as referred to in
Respondent's brief) and the actual discharges imbues the contention with an aura
of staleness. In any event the suggestion made in that letter was carried out a full
6 months before the discharges took place, namely to eliminate the office except
for a manager and accounts receivable and to eliminate the garage and cabinet de-
partment. Moreover, what little remaining comfort, if any, Respondent might
attempt to claim from the letter is further lessened by the timing of the discharges,
occurring as they did about a week after Martin was told that the employees were
going to get back into the Union as soon as they could do so. That week, incidentally,
zr While it is true that under Board policy Respondent would not have been called upon
to face another election for several months, nevertheless there was nothing to prevent
the majority of employees from rejoining the Union and demanding recognition.
28 Indeed, Obenshain testified that they "had a number of internal problems that we
had long been aware of personnel-wise" at Chattanooga.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be just about the time necessary for information and a decision on it to
travel back and forth through channels.
In view of the foregoing and considering the record as a whole , I find that the
discharges were discriminatorily motivated in violation of Section 8(a)(3) and (1)
of the Act as alleged in the complaint.
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 the operations of the Respondent 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 of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in unfair labor practices
in violation of Section 8(a) (1) and (3) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent discriminated with regard to the hire and
tenure of employment of Burkett Black, Richard G. Phillips, and Robert E. Bridges
on July 14, 1958, the Trial Examiner will recommend that the Respondent offer
each of them immediate and full reinstatement to his former or substantially
equivalent position without prejudice to his seniority or other rights and privileges,
and make each of them whole for any loss of pay suffered as a result of the dis-
crimination against him, by payment to each of them of a sum of money equal to
the amount he would have earned from the date of the discrimination to the date
of the offer of reinstatement less net earnings to be computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289,
291-294. Earnings in any one particular quarter shall have no effect upon the
backpay liability for any other such period. It will also be recommended that the
Respondent preserve and make available to the Board, upon request, payroll and
other records to facilitate the computation of backpay due.
As the unfair labor practices committed by the Respondent were of a character
striking at the roots of employee rights safeguarded by the Act, it will also be
recommended that the Respondent cease and desist from infringing in any manner
upon the employee rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Truck Drivers and Helpers Local Union No. 515, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organiza-
tion within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of the
employees named above, in the section entitled, "The Remedy," thereby discouraging
memberhip in the Union, the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a) (3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
McCormick Construction Company and Joseph Hender
Local Union 542, International Union of Operating Engineers,
AFL-CIO and Joseph Hender. Cases Nos. 4-CA-1607 and
4-CB-421. March 23, 1960
DECISION AND ORDER
On May 26,1959, Trial Examiner Henry S. Sahm issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
1.26 NLRB No. 153.