Shoenberg Farms

National Labor Relations Board - Board Decisions

Dec 16, 1960

129 N.L.R.B. 966 (N.L.R.B. 1960)

966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Publishing Company and Local No. 4 International Brotherhood of
Electrical Workers, AFL-CIO.
2. Local 4, International Brotherhood of Electrical Workers is not
and has not been lawfully entitled to force or require the Pulitzer
Publishing Company to assign the work of library filing, indexing,,
and recordkeeping of tapes recorded or aired on the Company's equip-
ment known as the Collins unit to members of said Local 4 rather than
to employees who are not members of said labor organization.
3. Within 10 days from the date of this Decision and Determination
of Dispute, said Local 4, IBEW shall notify the Regional Director for
the Fourteenth Region in writing whether or not it accepts the Board's,
determination of this dispute and whether or not it will refrain from
forcing or requiring the Pulitzer Publishing Company, by means.
proscribed by Section 8 (b) (4) (i) (D) of the Act to assign the work:
in dispute to employees who are members of the IBEW or represented.
by it.
Edward P . Tepper d/b/a Shoenberg Farms and Milk Drivers.
and Dairy Employees Local Union No. 537 , International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and.
Helpers of America. Case No. 27-CA-807 (formerly 30-CA-
807). December 16, 1960
DECISION AND ORDER
On July 27, 1960, Trial Examiner Wallace E. Royster 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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers to a three-member panel [Members
Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in this case,'
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.2
'The Respondent 's request for oral argument is hereby denied. In our opinion, the
record, the exceptions , and the brief adequately present the issues and positions of the
parties.
2 In adopting the finding that the employees in question are nonagricultural , we rely on
H. A. Rider & Sons , 117 NLRB 517 , at 519, as precedent for the finding.
129 NLRB No. 114.
SHOENBERG FARMS
ORDER
967
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, Edward P. Tep-
per d/b/a Shoenberg Farms, Arveda, Colorado, his officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in the Union, or in any other labor
organization of his employees, by discriminating in regard to hire or
tenure of employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the Union, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in 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 rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment in the manner and to the
extent authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) To the extent that he has not already done so, offer to Omer
Guthrie, Earl Bradley, James Gongwer, Wayne Bryant, and Briggs
M. Davis immediate and full reinstatement each to his former or sub-
stantially equivalent position and make each whole for any loss of
earnings in the manner set forth herein in the section of the Intermedi-
ate 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 such data convenient for a computation of backpay due.
(c) Post at its plant in Arveda, Colorado, copies of the notice at-
tached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Twenty-seventh Region,
shall, after being duly signed by the Respondent's representative, be
posted by him immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that such notices are
not altered, defaced, or covered by any other material.
a 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."
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Twenty-seventh Region,
in writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
APPENDIX
NOTICE TO ALL DAIRY PLANT EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, I hereby notify you that :
I WILL offer, to the extent not yet done, to Omer Guthrie, Earl
Bradley, James Gongwer, Wayne Bryant, and Briggs M. Davis,
immediate and full reinstatement each to his former or substasi-
tially equivalent position, without prejudice to seniority or other
rights and privileges, and make each of them whole for any loss
of earnings sustained by reason of the discrimination against them
on March 12,1960.
I WILL NOT by means of discharge or in any other manner inter-
fere with, restrain, or coerce my employees in the exercise of their
rights to self-organization, to form, join, or assist Milk Drivers
and Dairy Employees Local Union No. 537, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all such ac-
tivities, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
All my employees in the dairy plant operation are free to become or
remain or refrain from becoming or remaining members of the above-
named Union, or any other labor organization. I will not discriminate
in regard to hire or tenure of employment or any term or condition of
employment against any employee because of membership in or ac-
tivity in behalf of any labor organization.
EDWARD P. TEPPER D/B/A SIIOENBERO FARMS,
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.
SHOENBERG FARMS
INTERMEDIATE REPORT AND RECOMMENDED ORDER
969
STATEMENT OF THE CASE
This matter was tried before the duly designated Trial Examiner in Denver, Colo-
rado, on May 10, 1960. At issue is whether Edward P. Tepper d/b/a Shoenberg
Farms, herein called the Respondent or Tepper, discharged five employees because of
their membership in or interest in Milk Drivers and Dairy Employees Local Union
No. 537, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union. The complaint of the General Counsel
upon a charge filed by the Union alleges that the Respondent has thus engaged in
unfair labor practices affecting commerce within the meaning of Section 8(a)(1)
and (3) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat.
136, herein the Act.
Briefs have been received from counsel for the General Counsel and the Counsel
for the Respondent . The unopposed motion of the General Counsel to correct the
transcript is hereby granted.
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 RESPONDENT
The Respondent is a sole proprietorship operating a dairy farm and dairy business
near Denver, Colorado. His dairy herd produces about 300 gallons of milk a day
and he purchases as much as 3,000 gallons a day from other producers. The milk
is then pasteurized , bottled , and delivered to retail outlets . Respondent's annual gross
sales range from $1,250,000 to $1.500,000. Purchases of eggs for resale from a
point in the State of Utah exceed $50,000 annually. The employees whose discharge
is the subject of this complaint were at the time of discharge regularly employed full
time in processing, bottling, and delivering milk and other dairy products. I find
that Respondent 's operations are in , and affect, commerce within the meaning of
Section 2(6) and (7) of the Act and that the discharged employees are not agri-
cultural laborers.
II. THE ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
On Thursday, March 10, 1960, some of the men in the dairy plant discussed the
possibility of having a union to represent them. In consequence employees Wayne
Bryant , Briggs M. Davis, Omer Guthrie, Earl Bradley, and James Gongwer on the
evening of March 11 met at the home of the last named with two union representa-
tives. At the invitation of the men, Frank Yatckoske, Respondent's dairy superin-
tendent, attended the meeting. After a discussion all five of the employees signed
cards designating the Union as their bargaining representative. Yatckoske did not.
At the end of the workday on Saturday, March 12, each of the five employees was,
handed his check by Tepper and told that he was discharged. Guthrie testified that
on this occasion Tepper said, "I never thought you would do anything like this."
Tepper testified that he had no recollection of making such a remark. Others dis-
charged on this occasion were told, they testified, that the discharges came about as
a result of a "change in policy."
Tepper conceded that all of the men were good workers but said that they recently
appeared to be "disgruntled" and seemed to be slowing down in their work.
Guthrie had worked for the Respondent for about 13 years. He had threatened
to quit on several occasions but Tepper always persuaded him to stay. There is
evidence that Guthrie on occasion did not wear a hat while at work in violation of
health regulations but I am unpersuaded that this fault played any significant part
in Respondent's decision to discharge him. Guthrie's work performance was never
criticized by the Respondent.
Bradley worked for Tepper for more than 7 years. There is no testimony con-
cerning any particular conduct evidencing incompetence or carelessness on the part
of Bradley and 16 days after his discharge the Respondent rehired him.
Gongwer, after working for the Respondent on an earlier occasion, returned to
his employment in June 1959. On March 10 he inquired of Tepper's son, who is in
charge of the plant in the absence of his father, concerning the possibilities of promo-
tion . In the conversation the son told Gongwer that he was satisfied with Gongwer's.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work. There is no evidence of criticism leveled at Gongwer at any time in respect
to his work performance.
Bryant worked for the Respondent about 4 years. There is no explanation given
for Bryant's discharge and no testimony on the part of the Respondent as to any
dissatisfaction with Bryant as an employee. He was rehired 19 days after his
discharge.
Davis worked about 18 months for the Respondent. About a month before his
discharge he dented the top of the truck which he operated and about 2 weeks earlier
had bent a fender in a collision with a hay wagon. He was told by Tepper's son
to be more careful in his driving.
In his testimony Tepper described Yatckoske as "a full-time plant operator. He
has full charge of the plant." Yatckoske described himself as plant superintendent.
He has authority to recommend discharge to the Respondent. Tepper testified that
because of the general attitude of the crew in the plant he decided to "clean house
and to start all over again." He denied having any knowledge from any source that
the men had been discussing a union and denied in particular that he had learned
anything in that respect from Yatckoske. Yatckoske testified that he was not con-
sulted in the matter of discharges and that he did not know they had been determined
upon until they took place. Yatckoske denied that he had mentioned to Tepper
anything about the meeting of the men with union representatives.
The triviality of some of the complaints concerning the discharged men voiced
by the Respondent from the witness stand and the staleness of others, his candid
admission that all were good workers, and the rehiring of two of them within a
period of 3 weeks, supports the conclusion that Tepper made the discharges because
,of his belief that the men had joined the Union. How this knowledge came to him
is a matter for inference from the established facts. A meeting with union agents
was held, The five men who were discharged on the following day attended and
signed cards. Yatckoske was present. The likelihood that the plant superintendent
would impart this information to the Respondent is a strong one. He was a part
-of management and, arguably, at least, had an obligation to acquaint Tepper with
this development. I do not credit the denials of Tepper or Yatckoske in this par-
ticular. It is, of course, true that an employer may discharge as he pleases save
only that his motivation may not be one proscribed by the Act. My conclusion as
to motivation rests upon several factors. Considering that three of those discharged
had been employed for a number of years and the other two for a number of-
months, it is unlikely that they were discharged upon a whim. Some motivation
must have attended that decision. If considerations of employee efficiency and
conduct were at all controlling it would seem that Yatckoske, the man in "full
charge of the plant," would have been consulted. He testified that he was not. The
reasons given by Tepper in his testimony border on the frivolous. I do not believe
them. His remark to Guthrie, "I never thought you would do anything like this,"
on the occasion of Guthrie's discharge stands undenied and unexplained. I think
that it has meaning and that it constitutes an admission on the part of the Respondent
that he was aware of Guthrie's involvement with the Union. I am satisfied that the
discharges of the other men resulted from Tepper's belief that they were allied with
Guthrie in the matter.
I find that the Respondent discharged Guthrie, Bradley, Gongwer, Bryant, and
Davis because of his belief that they had joined a union or involved themselves in
some fashion with the Union. By the discharges the Respondent discriminated in
regard to tenure of employment of these individuals to discourage membership in or
activity in behalf of the Union. I find that the Respondent thereby violated Section
8(a)(1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with his 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 of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that he cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the tenure of
employment of Guthrie, Bradley, Gongwer, Bryant, and Davis, it will be recom-
LOCAL 84, INT'L ASSOCIATION OF BRIDGE , ETC. 971
mended that to the extent he has not already done so, he offer to each of them
immediate and full reinstatement each to his former or substantially equivalent
position without prejudice to seniority and other rights and privileges previously
enjoyed. Each shall be made whole for any loss of earnings sustained by reason
of the discrimination by payment to him of a sum of money equal to the amount
he would have earned from March 12, 1960 , to the date of reinstatement or offer
of reinstatement less his net earnings during that period . Backpay shall be computed
in accordance with the Board 's Woolworth formula. ' Loss of pay shall be deter-
mined by deducting from a sum equal to that which he would have earned for each
quarter or portion thereof , his net earnings in other employment during that period.
Earnings in one particular quarter shall have no effect upon backpay liability for any
other quarter.
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. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. By discharging Omer Guthrie, Earl Bradley, James Gongwer , Wayne Bryant,
and Briggs M. Davis on March 12, 1960 , the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
3. By the discharges, the Respondent had interfered with, restrained , and coerced
his employees in the exercise of rights guaranteed in Section 7 of the Act and has
thereby 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.]
1 F. W. Woolworth Company, 90 NLRB 289
Local 84, International Association of Bridge , Structural and
Ornamental Iron Workers , AFL-CIO [South Texas Building
Company] and Barney J. Smith. Case No. 933-CB-330. Decem-
ber 19, 1960
DECISION AND ORDER
On July 6, 1960, Trial Examiner Arthur Leff issued his Intermedi-
ate Report in the above-entitled proceedings, finding that the Re-
spondent 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 copy of the Interme-
diate Report attached hereto. Thereafter, the Respondent filed excep-
tions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Kimball].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. These
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
129 NLRB No. 117.