Select Foods, Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1961

133 N.L.R.B. 73 (N.L.R.B. 1961)

SELECT FOODS, INC. 73
or bargain with Respondent Locals as the collective -bargaining representative of
employees of Overnite.
6. The aforesaid action constitutes unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) and Section 8(b)(4)(A) and (B) of the Act.
7. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America has not by any conduct herein engaged in unfair labor practices
within the meaning of Section 8 (b) (4) (A) or (B) of the Act.
[Recommendations omitted from publication.]
Select Foods, Inc. and Local 55, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America. Case No. 11-CAl713. September 12, 1961
DECISION AND ORDER
On March 28, 1961, Trial Examiner Sidney Sherman issued his
Intermediate Report in the above -entitled proceeding , finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action , as set forth in the Intermediate Report
attached hereto. Thereafter , the General Counsel and the Respond-
ent filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member panel [Members Rodgers , Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the entire
record in this case , including the Intermediate Report, the exceptions,
and briefs , and hereby adopts the Trial Examiner's findings, con-
clusions , and recommendations.
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, Select Foods,
Inc., Charlotte, North Carolina, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from:
(a) Discouraging membership in Local 55, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization of its employees, by dis-
criminating in regard to their hire or tenure or any terms or con-
ditions of employment.
133 NLRB No. 14.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, by creat-
ing the impression that it is engaging in surveillance of the union
activities of its employees.
(c) 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 a labor organization, including the above-named
labor organization, to bargain -collectively through representatives of
their own choosing, to engage in concerted activities for the purposes
of collective bargaining, or other mutual aid or protection, or to re-
frain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Eugene Rhodes and W. L. McAdams immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges,
and make them whole in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due under
the terms hereof.
(c) Post at its warehouse at Hendersonville, North Carolina, copies
of the notice attached hereto marked "Appendix A."' Copies of such
notice, to be furnished by the Regional Director for the Eleventh
Region, shall, )after being duly signed by an authorized representative
of the Respondent, be posted immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Eleventh Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
I 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 A
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 Labor Management
Relations Act, as amended, we hereby notify our employees that:
SELECT FOODS, INC. 75
WE WILL NOT discourage membership in Local 55, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America, or any other labor organization , by discriminating
in regard to the hire or tenure of employment or any term or con-
dition of employment of any of our employees.
WE WILL NOT create the impression that we are engaging in sur-
veillance of the union activities of our employees.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization , to form a labor organization , to join the aforesaid
labor organization , or any other labor organization , to bargain
collectivel y through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain from any
and all such activities.
WE WILL offer Eugene Rhodes and W. L. McAdams immediate
and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority or other rights
and privileges , and make them whole for any loss of pay suffered
as a result of the discrimination against them.
All our employees are free to become, remain , or refrain from be-
coming or remaining members of any labor organization.
SELECT FooDs, INC.,
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
This case was heard in Hendersonville, North Carolina, on February 15 and 16,
1961, upon the complaint of the General Counsel, and the answer of Select Foods,
Inc., hereinafter called the Respondent. The issues litigated were whether the Re-
spondent violated Section 8(a)(3) and (1) of the Act by the discharge of Eugene
Rhodes and W. L. McAdams, and whether the Respondent violated Section 8(a) (1)
of the Act by certain other conduct described below.
Upon the entire record,' and from my observation of the witnesses, I adopt the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a corporation organized under the laws of North Carolina, is engaged
in the purchasing, warehousing, and wholesale distribution of food products. During
the 12 months preceding the issuance of the instant complaint, the Respondent re-
ceived at its Hendersonville, North Carolina, warehouse from out-of-State points, and
shipped from Hendersonville to out-of-State points, goods valued in each instance
at more than $50,000. I find that the Respondent has been at all material times en-
gaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert jurisdiction herein.
' The Trial Examiner has corrected the official transcript of testimony
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Local 55, International Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America , hereinafter called the Union , is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Union animus
As background evidence of Respondent 's union animus , the General Counsel in-
troduced a copy of a notice admittedly posted by Respondent at its Hendersonville
warehouse in November 1960, and mailed to all its employees. This notice pur-
ported to state the Respondent's attitude to the Union 's campaign to organize the
employees , and made it clear that the Respondent was militantly opposed to unioniza-
tion of its employees.
B. The violations of Section 8(a) (1)
1. By Stephens
The complaint alleges that the Respondent violated Section 8(a) (1) of the Act
through various acts of its office manager, James Stephens.2 The Respondent denies
that Stephens is a supervisor, Insofar as here relevant, the Respondent's supervisory
hierarchy consists of Blair , who is general manager and is stationed at Respondent's
main office in Charlotte, North Carolina; Olson, who is manager of Respondent's
operations at Hendersonville; 3 Baake, who is sales manager at Hendersonville; and
Price, the warehouse manager at Hendersonville. All these are admitted supervisors.
Stephens is office manager at Hendersonville, directing the work of two female em-
ployees, which relates principally to handling payrolls, bank deposits, collections,
and invoices for merchandise delivered. Work is assigned to these employees in
accordance with a routine procedure. It is the direction of these employees by
Stephens upon which the General Counsel relies in, alleging him to be a super-
visor. However, the evidence does not preponderate in favor of a finding that such
direction involves the exercise of independent judgment. Accordingly, I find that
Stephens is not a supervisor under the Act, and that no finding of any violation of
Section 8(a)(1) of the Act by the Respondent may be predicated on any acts or
statements by him in his alleged capacity as a supervisor .4
2. By Olson
The complaint alleges unlawful interrogation of employees by Olson. Respond-
ent's manager at Hendersonville and an admitted supervisor. The only evidence that
has any apparent bearing on this allegation is Olson's admission that various em-
ployees had come to him and volunteered the information that they had not signed
union cards but that certain other employees had done so, and the testimony of
Eugene Rhodes 5 that he had gone to Olson and voluntarily denied any union ac-
tivity. As there is no evidence that any of the foregoing disclosures were other than
voluntarily, I find insufficient basis in the record to support the allegation of unlawful
interrogation by Olson.
The complaint, as amended at the hearing, alleges also that Olson on or about
October 4, 1960,6 unlawfully told employees that they would be better off to tell
2 James Stephens , hereinafter called Stephens , is erroneously referred to in paragraphs
7 and 9 of the complaint as Charles Stephens. This error was corrected by amendment of
the complaint at the hearing.
8 These operations comprise a warehouse and a fleet of delivery trucks. The Respondent
has a similar operation at Atlanta, Georgia
I There was evidence that about October 20, 1960, Stephens Instructed Pace, Respond-
ent's night watchman, to report to him any union discussion by employees Pace's testi-
mony indicates that he believed that this instruction had originated with Olson and that
Stephens was merely acting as a "go-between." However, I do not regard such opinion
evidence by Pace as sufficiently probative to warrant imputing Stephens' statement to the
Respondent Accordingly, I find no merit in the allegation of paragraph 9 of the com-
plaint, as amended at the hearing , that Stephens ' foregoing statement to Pace violated
Section 8(a) (1) of the Act
6 Hereinafter referred to as Eugene or Rhodes. His brother , Reuben, who also testified
herein , will be referred to as Reuben or Reuben Rhodes
6 All dates hereinafter cited relate to 1960, unless otherwise stated.
SELECT FOODS, INC. 77
"the manager" of Respondent that they had not signed a union card. This evidently
has reference to testimony by Rhodes that on October 4 he was told by another
employee 7 that one of the supervisors, Price, had his name on a "union list," that
he questioned Olson about this, that Olson denied any knowledge of such a list, al-
though admitting to knowledge of union activity among the employees, and that,
when Rhodes denied that he had signed a union card, he was requested by Olson
to call Blair, Respondent's general manager. Olson's version of this conversation
was that, after denying involvement with the Union, and expressing apprehension
that Blair might think he was a union adherent, Rhodes announced that he would
see Blair, and Olson merely commented, "Well, go by and see him if you want to."
While Rhodes failed to specify that Olson asked him to tell Blair, Olson's version
makes it clear that both understood that the contemplated talk with Blair would re-
late to Rhodes' disclaimer of union activity, and, in fact, as will appear below, it
is undisputed that Rhodes, at his next opportunity, called Blair to deny any union
activity. In fact the only conflict between the foregoing versions is as to whether
Olson requested Rhodes to see Blair or merely acquiesced in Rhodes' announced in-
tention to do so. I have determined not to attempt to resolve the conflict in testi-
mony on the foregoing point, as I would find no violation of the Act here, in any
event, even accepting Rhodes' testimony that Olson asked him to repeat to Blair
what he had already voluntarily told Olson.
3. By Price
At the hearing the General Counsel orally amended the complaint by the addition
of an allegation that the Respondent violated Section 8(a) (1) of the Act by the con-
duct of Warehouse Manager Price 8 on October 3, 1960, in informing employees
that Respondent was compiling a list of all employees who had signed union cards.
In support of this allegation, Reuben Rhodes testified to an incident which, ac-
cording to him, occurred 3 or 4 weeks before the discharge of his brother, Eugene.
As it was stipulated at the hearing that Eugene was discharged on October 12, Reu-
ben's testimony would place the date of the incident as between September 14 and
21. However, other testimony indicates, and I find, that the incident occurred on
or about October 4.9 According to Reuben, he was told on that occasion by
Stephens that Price had a list of union adherents. In response to Reuben's inquiry,
Price showed him a list of names of employees, stating that it had been given him
by "someone" with the representation that these were employees who had signed
union cards; 10 and Price, according to Reuben, proceeded to discuss with him the
grievances of these employees and why they had signed union cards. Price ad-
mitted that he had shown Reuben a list of names of employees, but denied that
it was a list of union adherents. He explained that he had on his own initiative
been speculating as to which of the employees were for the Union, and that to aid
him in his speculation, he had written down the names of all the Respondent's
drivers, that it was these names that he had shown to Reuben, and that he merely
invited Reuben to guess which of the drivers were "in the Union." Price was un-
able to recall whether he had also told Stephens about this list.
Reuben's presumed bias in favor of his brother, a claimant herein, was at least
partly offset by the fact that he was still in Respondent's employ. At any rate, his
demeanor on the stand impressed me more favorably than Price's. Moreover, Price's
"guessing-game" explanation of his reasons for compiling the list in question
seems contrived.
I find therefore that on or about October 4, Price showed Reuben Rhodes a list of
names of drivers, which he represented as a compilation of alleged union adherents.
I find further that, since such conduct by Price was reasonably calculated to convey
the impression that Respondent was engaging in surveillance of the union activities
of its employees, the Respondent thereby violated Section 8(a) (1) of the Act."
7 His brother, Reuben.
s The same conduct was also charged to Stephens As I have already found that
Stephens was not a supervisor, the Respondent's liability as to him will not be further
discussed
9 This finding is based on a composite of the relevant testimony of Reuben and Eugene
Rhodes and Olson Reuben testified that lie told Eugene about the incident on the same
day that it occurred Eugene stated that it was on October 4 that he received this report
from his brother, and that he took the matter up on the same day in a conversation with
Olson Olson's testimony indicates that the date of this conversation occurred no later
than October 6
10 The name of Eugene Rhodes appeared on this list
11Iloffman-Taff, Inc, 123 NLRB 1462, 1463
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The discharges
1. Eugene Rhodes
Rhodes, a delivery driver for Respondent for about 8 years, was discharged on
October 12, allegedly for disobeying Respondent 's instruction not to use a helper in
unloading his truck on October 7 at the S & W Cafeteria in Knoxville , Tennessee.
It is undisputed that such instruction was given . The issues to be resolved are
(1) whether Rhodes in fact disobeyed this instruction , and (2 ) if so, whether this
was the true reason for his discharge or whether such discharge was due to his
union activity.
Rhodes made is last trip to Knoxville on October 7, arriving there at 4 a.m.
Rhodes testified that on that occasion , contrary to his previous practice , he did not
use a helper but personally unloaded the truck . However, Respondent produced a
number of photographs which, according to the testimony of the photographer and
several corroborating witnesses , were taken October 7 at the S & W Cafeteria in
Knoxville. These pictures showed a colored man standing in a truck containing
merchandise . The Respondent's witness testified that this truck was the one driven
by Rhodes , that it was unloaded by the colored man in the picture , and not by
Rhodes, and that throughout the unloading operation Rhodes was asleep in the cab
of the truck . I credit these witnesses in view of their mutually corroborative testi-
mony and the candor of their demeanor.12
There remains to be considered whether Rhodes ' violation of the instruction not
to use a helper on October 7 was the true cause for his discharge.
There is no serious dispute that Rhodes signed a union card about October 1.
Rhodes testified that he procured signatures on union cards from five other employ-
ees, but named only four-McCall , Lance, Warren, and Pace. Pace admitted that
be had been solicited by Rhodes but denied that he had signed a card. However,
Lance corroborated Rhodes' testimony as to himself. Austell, a union representative,
testified that he obtained a signed card from Rhodes , and at the same time gave him
four more cards, which Rhodes returned signed, and that one of the signatures was
that of McCall . Apart from Pace's denial that he had actually signed a card, this
portion of Rhodes ' testimony was not contradicted on any essential point , but was
in fact corroborated to the extent indicated above. Accordingly , I find that Rhodes
not only signed a card himself, but also solicited four other employees to sign union
cards, and obtained signatures from at least three of them.
Nor is there any serious dispute that Respondent had been informed prior to his
discharge that Rhodes had signed a union card . While denying any knowledge of
solicitation by Rhodes , Olson admitted that he might have received information
before Rhodes' discharge that he had signed a union card, but Olson declared that he
had received the same report about all the other employees . Blair admitted that he
had heard from several employees that Rhodes had signed a union card , but asserted
that he gave no weight to these reports because of their hearsay nature. Rhodes'
name appeared on the list which , as found above , Price, on or about October 4,
showed to Rhodes' brother , which list has been found to be a compilation of employ-
ees reported to have signed union cards. In view of the foregoing , it is found that,
prior to Rhodes' discharge , Respondent , and more specifically, Blair, had received
reports from several sources that Rhodes had signed a union card.
To prove that Respondent knew, in addition , that Rhodes had solicited for the
Union and that his union adherence and activity were the cause of his discharge,
the General Counsel adduced testimony by Rhodes with regard to a telephone con-
versation between himself and Blair on October 5. It is not disputed that Rhodes on
that date made a call to Blair at Charlotte 13 nor that he then assured Blair that he
had not signed a union card. The only controversy is as to what Blair said in
response According to Blair, his only comment was, "Gene that's fine; I'm glad
that you haven 't." According to Rhodes , however, Blair's response to Rhodes ' denial
that he had signed a union card was as follows:
Yes, you have . I was told up in Hendersonville that you did . . I'm going
to tell you right now, I ain't got very much time, and you had better go see Bill
McAdams and get your name off that list , or you ain 't going to be up there
much longer.
' In crediting these witnesses I have not overlooked the fact that they were all em-
ployees of S & W, and that S & W and the Respondent are under common control
11 Rhodes was returning from a trip to Raleigh , North Carolina
SELECT FOODS, INC. 79
Under cross ' examination Rhodes testified ` further as to what Blair said on this
occasion , as follows:
He said that he was told that my name was on the list . And that • I was there as
a representative of the Union ; that I was the "Daddy Rabbit" of the Union.
Under cross -examination , Rhodes also amplified the reference to McAdams in the
foregoing telephone conversation , saying that Blair had told him that McAdams "had
been getting up people to sign up for the Union."
There is thus presented the question whether to credit Rhodes or Blair. I have re-
fused to credit Rhodes' denial that he used a helper on October 7, and his claim that
he obtained a signed card from Pace. In other respects , Rhodes' testimony appeared
to be somewhat evasive. At the same time, Blair's testimony appeared to me on
occasion to be lacking in candor.14
Blair's version of his part in the foregoing telephone conversation is corroborated
by Chambers , Blair's assistant , who testified that he stood within a few feet of Blair
when he talked to Rhodes . On the other hand, Rhodes ' version is partially corrobo-
rated by Holbrook , one of Respondent 's drivers , who accompanied Rhodes on
October 5 on his trip to Raleigh, in the course of which Rhodes called Blair. ,Hol-
brook, who was still in Respondent 's employ at the time of the hearing , was its oldest
driver in point of service ,15 and he was not shown to be a union adherent . He testi-
fied that when they reached Charlotte , Rhodes left him in the truck , saying that he
was going to call Blair , and that when Rhodes returned he told Holbrook that
Blair had taxed Rhodes with having "something to do with the Union ." 16 While
this testimony was hearsay , as to the content of Rhodes ' conversation with Blair, it
was not objected to by Respondent . Moreover , the probative value of this testimony
is enhanced by the fact that Rhodes' remark was made contemporaneously with the
telephone conversation and at a time when Rhodes had no apparent ulterior motive
for making such a statement . In view of this corroborative testimony by Holbrook,
which I deem to be more worthy of belief than the corroboration of Blair by his own
assistant , and in view of certain other features of Blair's remarks as reported by
Rhodes,17 d credit Rhodes and find that on October 5 Blair rejected Rhodes' denial
of involvement in union activity , and warned him that if he did not disassociated him-
self from the Union,18 he would be discharged.
That Rhodes was in fact discharged on October 12 because of his union activity
is confirmed in my opion by consideration of the ground for discharge offered by
Respondent at the hearing. Such ground , as already stated, was that Rhodes on
his last trip to Knoxville on October 7, had not personally unloaded his truck but he
had hired a helper to do so.
To appraise this defense properly, it is necessary to review the following events
occurring during the period immediately preceding Rhodes' discharge:
'1. On September 9, Rhodes made his first trip to Knoxville , delivering merchan-
dise to the S & W Cafeteria there. He hired a colored boy to unload his truck,
paying him out of his own funds , and made no claim for reimbursement by the
Respondent.19
14 Thus, I do not credit his testimony that on September 28 he deferred action on Rhodes'
request that he be permitted to use a helper in unloading at Knoxville Lance and'
Warren, both employees of Respondent , as well as Reuben Rhodes , testified , in corrobora-
tion of Eugene Rhodes, that Blair approved Eugene's request on that date
15 He had been in Respondent ' s employ for 11 years
19 Whiles Rhodes testified that he recalled only telling Holbrook on this occasion that
Blair had warned Rhodes of his impending discharge , I deem Holbrook ' s recollection to
be more reliable than Rhodes' on this point
TT Thus, Rhodes imputes to Blair an admission in the telephone conversation of October 5
that he had heard in Hendersonville that Rhodes had signed a union card As already
noted, Blair acknowledged at the hearing that he had in fact received such a report It is
not apparent from the record how Rhodes could know this unless it had been told to him
in the October 5 conversation Moreover, the Imputation by Rhodes to Blair of the In-
triguing "Daddy Rabbit" phrase ]ends credence to Rhodes ' testimony While Blair denied
ever having used such a phrase , Rhodes did not impress me as having sufficient imagina-
tion or ingenuity to import such an odd expression into a fabricated conversation
is Actually Blair told Rhodes to get his name of "McAdams ' list " McAdams , as will he
seen below , was even more active than Rhodes in soliciting Respondent ' s employees to sign
union cards , and his discharge , which occurred about 3 weeks after Rhodes , will be dis-
cussed below
19 No such claim was made on any of the succeeding trips to Knoxville
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. On September 16 Rhodes made his next trip to the S & W Cafeteria at
Knoxville , and again hired a helper.
3. On September 23 Rhodes made his third trip to the Knoxville S & W Cafeteria,
arriving about 4 a.m. He again hired a helper . When Roberts , the cafeteria
manager , commented on Rhodes ' use of a helper, Rhodes explained that he had
"back trouble." Roberts promptly reported Rhodes' use of a helper to Respondent's
Hendersonville office and the matter came to the attention of Olson, the manager
there.
4. On September 28,20 Rhodes approached Blair at the Hendersonville ware-
house and advised Blair that because of his back trouble he had been using a
helper at his own expense to unload at Knoxville and asked permission to continue
to do so. Blair approved this request ,21 suggesting merely that Rhodes obtain
some form from Office Manager Stephens to be signed by the helper , in order to
protect the Respondent from any injury claim.
5. On September 30 Rhodes made his next delivery to Knoxville , and again hired
a helper to unload . Roberts reported this to Olson , but no action was taken on this
report.
6. On October 1,22 Rhodes signed a union card and during the ensuing period
prior to his discharge solicited four other employees to sign a card , and it is
undisputed that three of them did so.
7. On October 4, Price, a supervisor , showed Rhodes' brother , Reuben, a list
purporting to contain names of union adherents . Rhodes' name appeared thereon.
8. On October 5, Rhodes called Blair to deny any union activity , and Blair re-
jected his denial , warning him, in effect , of his impending discharge if he did not
abandon his union activity.
9. On October 4 or 5 , Blair instructed Olson to forbid Rhodes to use a helper on
the Knoxville trip, and Olson conveyed this instruction to Rhodes on October 6.
At the same time Blair called Roberts , the manager of the Knoxville S & W Cafe-
teria, and asked him to watch Rhodes on his next trip to see whether he used a
helper to unload, and report to Blair.
10. On October 7, Rhodes again used a helper to unload at Knoxville , and this
was reported to Blair by Roberts on October 10.
11. On October 12, Rhodes was discharged by Olson at Blair's direction, the
reason assigned being the use of a helper on October 7.
The following considerations militate against acceptance of Respondent 's reason
for discharging Rhodes:
Respondent 's witnesses assigned various grounds for objecting to the use of a
helper in Knoxville. At one point in his testimony , Olson attributed this objection
to the expense involved . However, Rhodes at no time claimed reimbursement for
his helpers at Knoxville , and his discharge was predicated merely on the fact that he
had used a helper, and not on any expense incurred by the Respondent on account
of such helper . When Olson was pressed on this point , he disavowed any reliance
on the matter of expense , stating that be did not in fact know the reason for the
objection to helpers at Knoxville , but that it was a long-established company policy.
At the same time, Olson admitted that under certain emergency conditions, not
present in Rhodes' case , drivers would be permitted to hire helpers to unload, and
that helpers could be hired by drivers to unload their trucks whenever they pick up
produce at terminals . It was implicit in this testimony that on these occasions the
drivers are reimbursed by Respondent for the expense of a helper . Accordingly,
while Olson 's testimony, if credited, indicated that Respondent's authorization of
drivers to hire helpers at no time extended to the hiring of helpers at the Knoxville
S & W Cafeteria . T infer that Olson had reference only to the conditions under
which the Respondent would reimburse its drivers for the expense of a helper.
Thus, Olson 's testimony , as I read it , sheds no light on Respondent 's policy regarding
20 This is the date given by Blair and Olson . Rhodes appeared uncertain whether this
incident occurred after his second or third trip to Knoxville As neither Blair nor Olson
had any ulterior reason to select this date rather than an earlier one, and Rhodes was
evidently confused about the exact date , I find that the correct date is September 28
21 For reasons already indicated in footnote 14, above , I do not credit Blair's testimony
that he deferred action on Rhodes ' request pending investigation of any problem of insur-
ance coverage that might be involved Nor do I credit Blair's version of other aspects of
the conversation on that occasion insofar as it differs from Rhodes'.
22 This date is based on a composite of the testimony of Rhodes and Austell Rhodes
testified that he signed a union card about a week or 10 days before his discharge on
October 12 Austell , who procured Rhodes ' signature on the card, fixed the date as a
Saturday about 2 weeks before his discharge October 1 fell on a Saturday
SELECT FOODS, INC. 81
the hiring of a helper by a driver, at his own expense, which is all that is here in-
volved.23 On the other hand, Blair testified that he objected to the hiring of a
helper by a driver for reasons running deeper than considerations of expense. He
explained that such a helper as a driver might pick up on the spot would usually be
an irresponsible person who might steal or damage Respondent's merchandise.
However, this reason would seem to militate against the hiring of helpers to load
merchandise at produce terminals, a practice admittedly sanctioned by the Re-
spondent. Moreover, Blair admittedly did not reprimand Rhodes on September 28
when he disclosed that he had hired helpers in the past at Knoxville. The only
question discussed at that time was whether Rhodes should continue to do so 24
Furthermore, Blair offered no credible explanation for his sudden about-face be-
tween September 28, when, as has been found, he authorized Rhodes to use a helper
at Knoxville, and October 4 or 5, when he forbade such use. Blair testified that,
after he talked to Rhodes, he consulted his insurance carrier, who advised him that
Respondent was covered for any injuries to helpers, but that Blair nevertheless de-
cided to forbid Rhodes to use a helper because he inferred from the fact that Rhodes
had made no prior report of any injury to 'his back that he was exaggerating his back
condition and did not, in fact, need a helper. However, except for the favorable
report of the insurance carrier on coverage, all the information on which Blair
allegedly relied in proscribing the use of a helper was known to him on September 28,
when he granted Rhodes' request or-if one accepts Blair's version-deferred action
thereon. In view of this, the fact that in the interim Respondent learned that
Rhodes had signed a union card assumes special significance. As against the view
that it was this union activity by Rhodes which prompted the decision to forbid
Rhodes to use a helper, the Respondent offers only Blair's explanation that "I just
decided we didn't want a helper out there" and "I just had time to think it over and
tried to analyze the situation."
From all the foregoing circumstances , I conclude that Respondent's reasons for
interdicting the use of a helper by Rhodes at Knoxville are afterthoughts, and that
the true reason for Blair's withdrawal of the permission previously granted was
Rhodes' intervening union activity. Such action on the part of Blair, being prompted
by antiunion reasons, was, in itself , unlawful. If a rule or instruction is illegal be-
cause prompted by antiunion considerations , the enforcement thereof by discharge
or otherwise is likewise illegal 25 Accordingly, even if it be true, as Respondent con-
tends, that Rhodes' disregard of Blair's order was the real reason for Rhodes' dis-
charge, I would nevertheless find that such discharge violated the Act.
However, I do not rely primarily on the foregoing grounds, as I do not believe
that Rhodes was in fact discharged for hiring a helper but rather because he en-
gaged in union activity, and that the Respondent would have condoned his conduct
on October 7 had he not engaged in such activity. Blair testified that during the 18
years he was associated with the Respondent as general manager he could recall only
one discharge prior to that of Rhodes. Returning to the stand a few hours later, he
stated that he had subsequently recalled discharging three salesmen , but he was
not asked to explain whether such discharges were for misconduct or for inadequate
sales volume.26 In any event, Blair's testimony proves at the most that only four
employees were discharged by Respondent for any cause over a period of 18 years
prior to October 12.27 When one considers that at the time of the hearing the Re-
spondent had more than 40 employees at Hendersonville alone , such a record be-
speaks a tolerant, if not benevolent, labor relations policy. It seems out of keeping
with such a policy for the Respondent to visit the extreme and rarely invoked penalty
of discharge upon Rhodes for hiring a helper on October 7, notwithstanding that it
does not appear and is not claimed that such conduct by Rhodes caused Respondent
any pecuniary loss, and notwithstanding that Respondent had expressly sanctioned
the very same conduct only 9 days before. Moreover, Blair's alerting of Roberts to
watch out for Rhodes on October 7 demonstrates that Blair was anxious in this
"Testimony by certain of the several drivers relating to the Respondent 's attitude to
the hiring of helpers by drivers appears also to relate only to the conditions under which
the Respondent would reimburse drivers for the expense of such helpers
241n fact, according to Blair, the only question discussed was whether Rhodes should
be reimbursed for the expense of a helper at Knoxville.
25 Republic Aviation Corporation v. N L R B, 324 Ti S 793, 805
x Admittedly, Respondent had had no prior occasion to discharge any of its drivers for
hiring a helper.
21 Within a month after Rhodes' discharge, there were two other discharges-that of
Justice for reporting to work while intoxicated, and of McAdams for reasons discussed
below.
624067-62-vol. 133-7
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instance to obtain grounds for discharge. This unusually severe attitude towards
Rhodes is persuasive that Respondent had a special reason for wishing to dispense
with his services, a reason reflected in Blair's warning to Rhodes on October 5 that
his union activity had placed his job in jeopardy.
Accordingly, I find that Respondent discharged Rhodes, not because of any
misconduct, but because of his union activity, thereby violating Section 8(a)(3)
and (1) of the Act.
2. McAdams
McAdams was hired by Respondent on October 4, 1958, as a laborer at the
Hendersonville warehouse. He was discharged at Blair's direction on November 2,
1960, allegedly because he was seeking other employment and it was Respondent's
policy not to retain employees who were interested in changing jobs.
McAdams and Rhodes were the only solicitors for the Union at Hendersonville,
and McAdams was even more active than Rhodes, inducing at least eight other em-
ployees to sign union cards. That Blair was aware of, or suspected, the nature of
McAdams' union activity is amply attested by his admonition to Rhodes in the
October 5 telephone conversation to get his name off McAdams ' "list," and Blair's
further reference in the same conversation to McAdams' soliciting of employees to
join the Union.
As already related Respondent's defense is that McAdams was discharged because
of its policy against retaining employees who were seeking other employment.
McAdams admitted that he engaged in such a search while in Respondent's employ 28
However, Olson admitted that for some time before McAdams' discharge he knew
about his efforts to obtain other work, and in fact aided him in these efforts, even to
the extent of introducing him to representatives of other employers and supplying
him with the names and addresses of other firms. Also, about 3 weeks before
McAdams' discharge, Olson approached another employer in Hendersonville on
behalf of McAdams.
According to Olson, when he informed Blair on November 2 of this latest job
search by McAdams, Blair declared that it was against Respondent's policy to
retain an employee who was seeking other work, and directed McAdams' discharge.
Blair explained at the hearing that this policy was based on the view that an
employee who wanted to change employers must be dissatisfied with his present
work, and that it is Respondent's practice to discharge dissatisfied employees.
However, doubt is cast on the existence of the policy allegedly violated by
McAdams by the circumstances that (1) no one else had ever been discharged for
seeking other work, and (2) although claiming to have been informed of the policy
when he was hired, Olson admitted that none of the employees at Hendersonville
was apprised thereof and that he, himself, honored the policy in, the breach in the
case of McAdams, by not only conniving at, but even seconding,* McAdams' search
for more suitable work.
Moreover, it seems strange that, notwithstanding Olson's long familiarity with
McAdams' search for work, he did not report it to Blair until shortly after the advent
of the Union. Another suspicious circumstance that cuts across the cases of both
Rhodes and McAdams is that notwithstanding that prior to their termination the
Respondent had discharged not more than four employees in 18 years, Respondent
dismissed these two employees within a space of 3 weeks, and these two were the
only employees who solicited for the Union.
Respondent would explain away the foregoing circumstances as mere fortuities.
However, a more persuasive explanation is offered by the evidence indicating that
Respondent knew of McAdams' union activity, and, I infer that here, as in, the
case of Rhodes, that Respondent waited only for a pretext to discharge him.
Accordingly, I find that the Respondent discharged McAdams on November 2
because of his union activity, thereby violating Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above, have
21 McAdams had held responsible supervisory positions before accepting work as a
laborer with Respondent His appearance on the witness stand bore out Olson's own
description of him as "educated, intelligent, personable." McAdams testified that he told
Olson before he was hired that he regarded any job Respondent might give him as a
stop-gap, until he could get better work. Olson denied that 'he had been so advised by
McAdams before he was hired. As the exact time when Olson learned of McAdams' inten-
tion to seek a better job is not material, I do not deem it necessary to resolve this conflict
SOUTHWIRE COMPANY 83
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 com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent 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.
Thus, having found that the Respondent interfered with, restrained, and coerced
its employees by certain conduct , as found in section III , B, 3, above, the Trial
Examiner will recommend that the Respondent cease and desist from this conduct.
Having also found that the Respondent discriminated with regard to the hire and
tenure of employment of Eugene Rhodes on October 12, 1960, and W. L. McAdams
on November 2, 1960, 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 discrimi-
nation against him , by payment to each of them of a sum of money equal to the
amounts 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 a manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
Earnings in any particular quarter shall have no effect upon the backpay liability
for any other such period . It will also be recommended that the Respondent pre-
serve and make available to the Board, upon request, payroll and other records to
facilitate the computation of the backpay due.
As the unfair labor practices committed by the Respondent are of a character
striking at the root of employee rights safeguarded by the Act, it will be recom-
mended that the Respondent cease and desist from infringing in any manner upon
the 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 adopts the following:
CONCLUSIONS OF LAW
1. Local 55, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America , is a labor organization within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of Eugene
Rhodes and W. L. McAdams, thereby discouraging membership in the Union, the
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(3) and (1) oftheAct.
3. By creating the impression that it was engaging in surveillance of its employees'
union activities , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. 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.]
Southwire Company and Local 613, International Brotherhood
of Electrical Workers, AFL-CIO. Cases Nos. 10-CA-4355,
10-CA-4355-2, and 10-CA-4373. September 12, 1961
DECISION AND ORDER
On December 21, 1960, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
133 NLRB No. 1.