Somerville Cream Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsAug 17, 195195 N.L.R.B. 1144 (N.L.R.B. 1951) Copy Citation 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clerk, and two male clerks are under the supervision of the office fore- man. All the parties have agreed to exclude the chief supply clerk and the female clerk from the unit on the ground that they are office clericals. There is disagreement with regard to the two male clerks. In substance the duties of these two clerks are as follows : They check all incoming materials and parts against the packing slips and store them in their proper places; they issue various parts to production and maintenance employees on requisitions and perform the necessary clerical work. In the course of issuing materials they come into frequent contact with the production and maintenance employees. They package materials for shipment by express or parcel post and make the necessary deliveries; they maintain inventories and check the items stored. The record discloses that they devote approximately 50 percent of their time to the manual task involved in issuing ma- terials and parts and the balance of their time to clerical duties. We find that the two male supply clerks perform in effect the duties ordinarily performed by stock clerks and plant clericals and therefore shall include them in the unit found appropriate herein."' We find the following employees employed at the Employer's Kim- ballton, Virginia, plant, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees, including the tool- room employee and the two supply clerks who are stock or plant clericals; but excluding the office clericals, the laboratory employee, watchmen, guards, foremen, subforemen and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] io M. Snower d Co., 92 NLRB No. 41; General Electric Company , 80 NLRB 174. SOMERVILLE CREAM COMPANY, INC., and MILK WAGON DRIVERS AND CREAMERY WORKERS UNION, LOCAL 380, INTERNATIONAL BROTIIER- HOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HIMPERS OF AMERICA , AFL, PETITIONER . Case No. 1-CA-744. August 17, 1951 Decision and Order On May 18, 1951, Trial Examiner W. Gerard Ryaii issued his Inter- mediate Report, finding that the Respondent had engaged in certain unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act, 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. The Respondent filed exceptions 95 NLRB No. 156. SOMERVILLE CREAM COMPANY,-INC. 1145 and-a supporting brief, contending inter alia that, it was denied a fair hearing by reason of the Trial- Examiner's refusal to 'rant its request for indefinite adjournment of the hearing.. We 1 find no merit to this contention. The record shows that on the basis of charges filed July 24, 1950, the complaint in this case issued on or about January 3, 1951, at which time the Respondent was also served with notice that the hearing would be held Monday, January 15. It appears from the statements made by counsel for the General Counsel 2 on-the record, in the pres- ence of counsel for the Respondent, that the latter telephoned the General Counsel on Friday, January 12, 1951, requesting an adjourn- ment of the hearing because of prior trial commitments and because the Respondent's president, Edward F. Luce, was temporarily dis- abled with a respiratory illness. The Respondent's counsel stated at that time that he would probably be ready to go forward with the case on January 22. Pursuant to this request, the date of the hearing was set over to Tuesday, January 23, 1951, and all parties were so notified. On January 15, counsel for the, Respondent wrote to the General Counsel requesting in effect a further adjournment because he had been informed that Mr. Luce was still ill and would "not be out of the house for four'or five weeks." 3 Pursuant to this request, the hearing date was again set over to April 3, 1951, and all parties notified accordingly. At the same time, the General Counsel advised that he opposed any further continuance in view of the length of time during_which the case had been pending. On January 23, Respondent subihitted'to'tlae"General Counsel the affidavit of a doctor setting forth 'the nature of Mr. Luce's illness in terms similar to those set forth in the affidavit subsequently presented at the hearing and more fully 'described in the Intermediate Report. It is noted that the sole reason advanced for Mr. Luce's inability to' participate in the hearing was that the thrombosis of the brain, from which he was suffering, left him with a "disturbed sense of balance" and a consequent inability to walk unattended or to be on his feet. On March 13, 1951, the Respondent's counsel again communicated with the General Counsel for the purpose of obtaining a further ad- journment of the hearing based upon Mr. Luce's continuing inability to be "out of his house"-alone and upon the "present medical opinion that he will not be able to be up and around for at least five or six months." Thereafter the General Counsel advised the Respondent's counsel that as the case had been twice postponed, and as the complaint ' 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 [Chairman Herzog and Members Murdock and Styles]. = He is hereafter referred to as the General Counsel. The request for continuance was not specifically expressed in the January 15 letter. It was made subsequently on January 19. 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ran against the corporation rather than against Mr. Luce, he would oppose a further postponement of the hearing. The Respondent's counsel replied by letter that he "did not have the impression'that the issues in this matter are so important or so pressing that a hearing must be held despite the inability of Mr. Luce to be present and to defend himself" and that if Mr. Luce's physical condition on April, 3 was the same, he would not "be prepared to participate in the hearing on the merits and [would] appear only for the purpose of presenting medical testimony by way of affidavit concerning Mr. Luce's condition and to object to . . . proceeding in [Mr., Luce's] absence." The General Counsel replied on March 21, urging his objections to further continuance and calling upon counsel to prepare to go forward on April 3. The same letter set forth the General Counsel's disagree- ment with the Respondent's counsel's impression as to the importance of the issues concerning the violation of the Act, as well as the General Counsel's purpose to have the case disposed of "as soon as possible rather than have it postponed to some indefinite future..date, which. might be months or years away." The Respondent's counsel appeared at the hearing on April 3 for the limited purpose of requesting a continuance from the Trial Ex- aminer, and submitted in support thereof the medical affidavit referred to in the March 15 letter. The. General Counsel again opposed fur- ther continuance, setting forth in full on.the record the background of the two prior requests of the Respondent's. counsel for adjournment, the long period during which the case had been pending,. and stating further he had information that Mr. Luce had been able .to attend to his business affairs during the period immediately preceding the last hearing date.4 However, the General Counsel suggested, in the pres- ence of Respondent's counsel, that it might be possible to move the hearing temporarily to Mr. Luce's home for the purpose of taking his testimony. The Trial Examiner also indicated to the. Respondent's counsel that he would entertain an application for the taking of a deposition. To these suggestions, Respondent's counsel replied that he was appearing for the sole purpose of presenting the medical affi- davit in support of the request for continuance. Upon the Trial Ex- aminer's ruling that no further continuance would be granted and that the parties were to proceed with the trial on the merits of the case, Respondent's counsel left the hearing room and did not thereafter 4 Respondent's counsel did not controvert any of the General -Counsel's recital of, the background facts relating to the two prior adjournments . Nor did the Respondent's counsel deny or offer any facts indicating that Mr. Luce had been totally unable to attend to his business affairs from his home. At a later point in the hearing, the General Counsel ' s information with respect to Mr. Luce's ability to attend to his business affairs was confirmed by the testimony of Respondent ' s treasurer , Benson . She testified that .on each day she would go over to Mr. Luce's . home, which was located next door to the plant,- and discuss with him any questions concerning the business that appeared to warrant his attention. SOMERVILLE CREAM COMPANY, INC. 1147 avail himself of the opportunity to hear the testimony of the witnesses for the General Counsel or to crossexamine them. In view of all the foregoing facts and those cited by the Trial Ex- aminer, we find that the Trial Examiner did not abuse his discretion in denying the request of the Respondent's counsel for a further adjourn- ment of the hearing. We find further that the Trial Examiner's rul- ings as made at the hearing are free from prejudicial error and are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief of the Respondent, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Somerville Cream 'Com- pany, Inc., of Somerville, Massachusetts, and its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Milk Wagon Drivers and Cream- ery Workers Union, Local 380, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL, or in any other labor organization of its employees, by discriminatorily discharging and refusing to reinstate any of its employees or by dis- criminating in any other manner in regard to their hire and tenure of eriiployinent or any=term or condition of employment. (b) Interrogating its employees in any manner concerning their union affiliation, activities, or sympathies, or threatening them with discharge or other economic reprisal because of their union affiliation, activities, or sympathes. (c) Threatening employees that it will close its plant, or taking other economic reprisals against its employees if they join Milk Wagon Drivers and Creamery Workers Union, Local 380, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or any other labor organization. (d) Giving benefits to employees to induce them to refrain from joining or to abandon membership in, Milk Wagon Drivers and Cream- ery Workers Union, Local 380, International Brotherhood of Team seers; Chauffeurs, Warehousemen and Helpers of America, AFL, or any other labor organization. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization to form labor organizations, to join or assist Milk Wagon Drivers and Cream- ery Workers Union, Local 380, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL, or 1148 DECISIONS OF 'NATIONAL 'LABOR RELATIONS BOARD any other labor organization, ,to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purpose of collective -bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. . 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Charles D. Matthews, Michael Langone, and Richard H. Ayers 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 Charles D. Matthews, Michael Langone, and Richard, H. Ayers, in the manner set forth in the section of the Intermediate Report entitled "The Remedy" for any loss of pay each . may , have suffered as a result of the Respondent's -discrimination against him. (c) Upon request, make available to the National Labor Relations Board, or its agents, for examination and copying, all payroll rec- ords, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this recommended order. (d) Post at its plant in Somerville, Massachusetts, copies of the notice attached to the Intermediate Report, marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices, to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the First Region, in writing, within 'ten (10) days from the date of this Order, what steps the Respondent has taken to comply therewith. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge.filed on July 24, 1950, by Milk Wagon Drivers and Creamery Workers Union, Local 380, International Brotherhood of Teamsters, Chauffeurs, s This notice, however, shall be and it hereby is amended by striking from the first paragraph thereof the words "The Recomnrendations of the Trial Examiner" and substitut- ing in lieu thereof the words "A Decision and Order." In the event this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words "A Decision and Order" the words "A. Decree of the United States Court of Appeals Enforcing." SOMERVILLE CREAM COMPANY,, INC., 11,49 Warehousemen and Helpers of America,'A. F. L., herein called, the Union, the General Counsel of the National Labor Relations Board,.called herein .,respec tively the General Counsel and the Board, by the Regional, Director of the, First Region (Boston, Massachusetts), on January 3, 1951, issued a. complaint against Somerville Cream Co., Inc., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair:la}Ior practices affect- ing commerce within the meaning of Section 8 (a) '(1) and, and Section (6) and (7) of the Labor Management Relations Act, 1947„4erein referred tq as the Act. Copies of the complaint and the charge upon which it was, based, together with notice of hearing thereon, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged. in substance that : (1) Since on or about July 15, 1950, to the date of.. the.;complaint, the Respondent in violation of Section 8 (a) (1) of the Act, interfered with,, re, strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, by (a) interrogating its employees concerning their union membership and activities, (b) conferring with certain of its employees on the Respondent's time and premises for the purpose of inducing them to relinquish their union membership and activities, (c) offering economic inducements to certain of its employees for the purpose of inducing them to relinquish their union membership and activities, (d) givingseconomic benefits to. certain of its employees as a reward for relinquishing their union membership and activities, (e) threatening employees with economic reprisal if the Union became col, lective bargaining representative for its employees, (f) threatening. to, close down its business if the Union became collective bargaining representative for its employees; and (2) In violation of Section (a) (1). and (3) of the Act, the Respondent discharged Charles D. Matthews on or about July 19, 1950; Michael Langone on or about July 20, 1950, Richard H. Ayers ion or about July 21,, 1950, and has since failed or refused to reinstate them; thereby discriminating in regard to their hire and tenure of employment in, order to discourage membership in the Union. In its answer filed on January 22, 1951, the Respondent admitted certain allegations of the complaint, denied the commission of any unfair labor practices,, and denied the jurisdictional allegations of the complaint. Pursuant to notice, a hearing was held from April 3 to.April 5, 1951, inclusive, at 24 School Street, Boston, Massachusetts, before W. Gerard Ryan, the under- signed Trial Examiner, duly designated by the Chief Trial Examiner. The parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the opening of the hearing, counsel for the Respondent moved for adjournment of the hearing, upon the ground that the president of the Respondent was unable, because of illness, to attend or testify at the hearing.' The General Counsel opposed adjournment, and after hearing counsel for the Respondent and the General Counsel, I denied the Respondent's request for I The basis of the Respondent 's motion for adjournment was that'its president , Edward F. Luce, was physically unable to attend the hearing. The physician' s affidavit in support of the motion set forth that prior to March 29, 1951 (the date of ,the affidavit), Luce, had been unable to walk because of a disturbed sense of balance ; that on March 29, he was .un "hle to walk alone ; and that, in the opinion of the physician, be would not be able to participate or testify in any hearing. The affidavit was silent as 'to when, its ever , the witness would be available ; nor did it contain facts' from which to 'conclude that the witness was unable to testify. The physician described his incapacity solely to inability to walk alone. The General Counsel offered to attend„at, the witness' home if it became necessary for him to testify. No request however was made by the Respondent to take the witness' testimony at his home or elsewhere ; nor was . any., request made that it be taken by deposition. , .1. , 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adjournment. Counsel for the Respondent then stated he would take no part -in the hearing, thereupon left the hearing, and did not return to nor participate further in the hearing. «At'.i he conclusion of the testimony, the General Counsel's motion to conform the pleadings to the proof with respect to minor matters in the spelling of. names. and dates was granted. At the conclusion of the hearing paragraph 8 section (c) was stricken from the complaint without objection in the absence of evidence to sustain the-allegation that the Respondent offered economic inducements to certain of its employees to induce them to relinquish their union membership and activities. At the conclusion of the hearing the General Counsel waived oral argument and the parties were afforded an opportunity to file briefs, proposed findings of fact, and conclusions of law. No briefs have been filed. On the entire record in the case, and from my observation of the witnesses, I make the following: - FINDINGS OF FACT 2 . I. THE BUSINESS OF THE RESPONDENT The Respondent is and has been at all times material hereto a corporation organized under and existing by virtue of the laws of the Commonwealth of Massachusetts. It maintains its principal office and place of business in the city of Somerville, county of Middlesex, Commonwealth of Massachusetts, where it is and has been engaged in the manufacture, sale, and distribution of ice cream mix, pasteurized cream, and related products. During the year 1949, the Re- spondent purchased raw materials in the amount of $484,000, of which purchases amounting to $255,000 were from outside the Commonwealth of Massachusetts. Sales totaled $635,000, of which $114,000 represented sales outside the Common- wealth of Massachusetts. In 1950, raw materials in the amount of $484,000 were purchased, of which $152,000 were for purchases from outside the Common- wealth, and gross sales were $602,000, of which $134,000 represented sales to pupchasers outside the Commonwealth of Massachusetts. I find that the Respondent is engaged in commerce within the meaning of the 'Act.. IT. THE ORGANIZATION INVOLVED ' Milk Wagon Drivers and Creamery Workers Union, Local 380, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, is a labor organization - within the meaning of the Act. ' III.. THE UNFAIR LABOR PRACTICES A. Introduction and background The. Respondent operates a plant which prepares and sells ice cream mix to dairies and purchases cream which -it" pasteurizes and then-delivers to whole= salers. There are 5 or 6 employees employed within the, plant and 5 truck drivers who work outside the plant delivering, merchandise on certain established routes. Although the busy season is from mid-April to early September none of its employees was discharged or laid off during the off seasons, at least for 2 years prior to the discharges herein presented. During such off season, the men busied themselves at the plant with odd jobs, painting, or other work. There was close association daily of the Respondent's president, treasurer, and foreman, 2 The findings are based upon the evidence adduced by the General Counsel, all of which Is uncontroverted. - SOMERVILLE CREAM COMPANY, INC. 1151 with its small force of approximately 10 employees.' The plant formerly had been a barn and the company office is located in what formerly had been the hayloft of the barn, reached by a trap stairs of approximately 15 steps. Inside the plant is a pasteurizing machine operated by a working foreman, Collings, who has the right to hire and fire. Edward F. Luce, president, Ida M. Benson, treasurer, bookkeeper, and clerk, and Collings, the foreman, constitute the man- agerial supervisors within the meaning of the Act' Following discussion among the employees about joining a union, Richard H. Ayers arranged for a meeting of .the employees with Luke Kramer, the union representative, which was held after working: hours on July~18, 1950,,,at 8.; p.., m. Richard H. Ayers, Charles D.. Matthews, and Michael Langonet&wer-8 the leaders in the ' employees' pnovement for organization, and known to the Respondent to be such. Besides the 3 lead- ers, the meeting was attended by 3 other employees, and all 6 employees signed union cards at the meeting. B. Interference, restraint, and coercion 1. Interrogation On July 19, 1950, the day following the union meeting, Foreman Collings questioned employee John It. Ahern in an attempt to find out the reason for the meeting with the Union and what Ahern knew about the meeting. Ahern had not attended the meeting and informed Collings that he'knew nothing except that the meeting had taken place. On another occasion, approximately 3 weeks from the time of the meeting, Treasurer Benson asked employee Preble which em- ployees had joined the Union. He replied that he had joined but did not mention the names. of others. It has long been established that any attempt by an em- ployer, directly or indirectly, to secure information concerning the manner in which or the extent to which his employees have chosen to engage in union organization or other concerted activity is an invasion of an area guaranteed to be exclusively the business and concern of his employees. In the -recent case of Standard-Coosa-Thatcher,' the Board stated : The express purpose of the Act is to protect the "exercise by workers of full freedom of association, self organization, and designation of representa- tives of their own choosing for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." Con- sonant with this objective, Section 7 of the Act..declares that employees have the "right" to engage in organization and association, and Section 8 (a) (1) makes it an unfair labor practice for employers to "interfere with, restrain, or coerce" employees in the exercise of that right. The language and the legislative history of Section 8 (a) (1) show that Congress intended the terms "interfere," "restrain," and "coerce" to have separate and distinct meanings. In banning "interference Congress clearly meant to proscribe any employer activity which would tend to limit em- ployees in the exercise of their statutory rights. Inherent in the very na- ture of the rights protected by Section 7 is the concomitant right of privacy in their enjoyment-"full freedom" from employer intermeddling, intrusion, or even knowledge. Accordingly I find that such interrogation by Foreman Collings and Treasurer Benson constituted interference, restraint, and coercion-within the meaning of.the Act and the Respondent thereby violated the provisions of Section 8 (a) (1) of the Act. $ Luce lived next door to the plant. 85 NLRB 1358. 1152 DECISION'S' `OF 'NATIONAL LABOR RELATIONS BOARD 2. Threats to close the plant As shown infra, Harold F. Killam was hired to replace Charles D. Matthews, and during the first few days of his employment Killam was accompanied once ,on; the delivery truck by President Luce, who, during the ride, informed Killam that' the 3 men who had been discharged had been "union-inclined"; that the plant; could not ;afford to have the Union and if it did come in, Luce would be forced; the close the doors of the plant. On another occasion during the course bf.a conversation with employee Everett J. Bryan, Luce stated to him that if the Union came in he would have no choice except to close the plant. At the time he,,discharged Richard H. Ayers on July 21, Luce told him that he did not want a ,union in the plant and if one succeeded, he would close the plant. On or about July 21, 2 days after Matthews -had asked employee Burns to sign a union card, Luce told Burns that the plant would close as it would not be able to operate if the employees had a union. While the union movement was in progress and shortly prior to the .'discharges of. Matthews, Ayers, and Langone, Treasurer Benson told employee Aylward that if the Union came in the plant would close. That Luce would be well able to carry-,out his threats to close the plant is obvious from the fact that out of 500 shares of the Respondent's corporate stock, Luce owns 373 shares and Treasurer Benson, in addition to 1 share owned.by her, holds 1125 shares in trust for Luce and herself. I find that such threats, by the Re- spondent to close„its,.plant in the event the Union succeeded in organizing its ,employees to be interference, ,restraint, and coercion within the meaning-of the Act and the Respondent thereby violated Section 8 (a) (1) of the Act.` 3. Other -instances of interference, restraint, and coercion Herbert G. Preble, Jr., was employed by the Respondent as a truck driver on a regular route. He attended the meeting of the employees with the union repre- sentatives on July 18, 1950; and signed a union card at the meeting. Within 10 days following the discriminatory discharges on July 19, 20, and 21, as herein- after set forth, Preble had a conversation with Treasurer Benson during which she asked him which employees had joined the Union. Preble informed her that he had joined, but 'did not name the others. Preble then told Benson that he wanted to withdraw from the Union, whereupon Benson prepared a letter of resignation for his 'signature and it was sent to the Union. Luce observed to Preble, when he told him that he had resigned from the Union, that under the circumstances for one in Preble's position -it was the best thing to do. Within a few days following' his resignation, Preble was given a wage increase in early August. The Respondent offered no evidence to explain the circumstances of the wage increase. `Considering the rapid sequence of events following the union meeting on July 18,!the. discriminatory discharges on July 19,'20, and 21, the Respondent's interrogation of employees and its several threats to close the plant;' it may be reasonably' inferred and I so find that the increase in wages given 'to Preble so soon'a'fter his resignation from the Union was ,given as a re- ward ' for relinquishing his union membership and activities and to discourage 'organizational''activ'ities of the employees thus constituting interference, re- straint, and coercion within the meaning of the Act, and the Respondent thereby ,violated Section 8 (a)' ;(1),.of the Act. The granting of a wage increase or other Premier Worsted Mills , 85 NLRB 985; New York Steam Laundry, Inc., 85 NLRB 1470; brie ieri riving Cotnpdiiy; 86 NLRB 285; Westinghouse 'Pacific, Coast Brake ,Company, 89 NLRB 145; A. J. Siris Products Corporation of Virginia, 90 NLRB 132; Crosby Chemicals, American National Insurance Company, 89 NLRB 185. SOMERVILLE CREAM COMPANY,, INC. 1153 benefits to discourage union . or. other concerted activity, has long been held to be vliolative of Section 8 (a) (1) of the Act..°, . C. The discriminatory , discharges 1. Charles D. Matthews Matthews worked for the Respondent from February 1949 until his discharge on. July 19, 1950. He began as, an inexperienced employee, and after doing some truck driving and various other jobs was instructed by employee Everett Bryan in the operation of a machine in the plant, which bottles cream. The machine is equipped with a conveyor belt upon which pint and half-pint bottles are so placed that they are filled from an enamel bowl containing 20 gallons of cream.' Matthews' -job was to remove the bottles from the conveyor when they were filled and,, in addition, to keep the bottling machine clean. Matthews wore white overalls while working and at all times kept himself clean. At no time during his employment did the Respondent ever make any complaints regarding his work or personal appearance. On. July 18, 1950, Matthews, who was known to the Respondent as one of ,the leaders in the union organizational movement, attended a meeting with the union representative and five other employees at 8 p. m., at the office of the Union 8 At the meeting all six employees present signed.union cards and Matthews was given -a supply of cards to be signed by other employees in the plant. On-the,following day, July 19, Matthews openly solicited employees Moore, Burns, and°De Venne to sign union cards. Moore worked near Foreman Collings and signed a card but Burns and De Venne refused. At noon-time, President Luce, in the presence of employees Langone, Everett Bryan, and John Bryan, complimented Matthews on doing a good job and told him he hoped he would continue: so, to do. Luce then remarked that too much' cream- was being returned unsold by the-drivers. When Matthews point& out to Luce that he' had,no discretion in giving the drivers the number of bottles they ordered; Luce gave him-authority to cut'down the drivers' re- quests for cream and said he would support Matthews "if, the drivers gave any trouble." Luce had also entertained theidea to send Matthews to an agricul- tural. college to study pasteurizing and had :discussed that possibility as late as 1 month prior to his discharge. At 5 p. in. on July 19, Luce informed Mat- thews that he was discharged because he was getting'a'bad count on the bacterial content in the cream and for the further reason that `"he was, not the man for the job."' Matthews was given a week's pay in lieu of notice.' On July 20, .Everett J, Bryan did Matthews' work until a new, inexperienced employee; Harold J. Killam, replaced Matthews on; July. 21. Killam worked until he -re- signed on November 8 and was succeeded by Proulx on November 10; who there= after was replaced by Duffy. It has already been shown 'above that during the first few clays of his employment Killam was told by Luce that the three m.en who had been discharged had.been "union-inclined". and if the Union succeeded in organizing the employees; he would close the plant. 2. Michael Langone Langone was hired by the Respondent on June 15, 1950, and at the time President Luce told him the job would last 7 or 8 months and possibly be perma- 4 J., H. Rutter-Rex Manufacturing Company, Inc., 86 NLRB: 470; Jasper ' National Mtattress Company, 89 NLRBt75 ; The Valley Broadcasting Company, 87 NLRB 1144. Matthews also had a helper who placed empty bottles on the conveyor belt. ° Qn the same day, Matthews had discussed the union movement with Foreman Collings a'nd' had even.Asked Collings to join the Union. .. ° Treasurer Benson testified that was done as the Respondent did not want him around the premises "because he was a troublemaker.". - • •- 1154 * DECISIONS 6I -NATIONAL- LABOR RELATIONS BOARD nent. Langone was a truck driver making special delivery of orders from the plant to nearby customers and also picking'up and delivering cream to railroad depots. No complaint regarding his work was ever made to him. Langone was known to the Respondent to be active in the organizational efforts of the employees. Two or three days prior to the union meeting on July 18, Foreman Collings informed him that Luce had asked Collings what the story was about the men wanting to join the Union but added that he did not give Luce any information. Langone joined the Union at themeetngheld on July 18 and on the days following solicited other employees to join, the Union and-openly -dis- cussed the Union at the plant, during which Foreman Collings was present. Two days after the union meeting, on July 20 'at 5 p. in., Treasurer Benson told him he would have to be laid off until the first of the following week because of the bad weather. He then made one further delivery, returning to the plant at 6 p. in., and found his time card had been removed from the rack. Luce then gave. Langone his check stating he was laid off until Monday or Tuesday of the following week. Instead of recalling Langone to work, the Respondent hired Hollis Geary,10 a new employee, to do his work and Geary worked until August 15: Geary was followed by Lee Beatty who was replaced in October by. John Carey who is still employed. Geary, Beatty, and Carey, successively, did the same work that Langone had performed. 3. Richard H. Ayers Ayers worked for the Respondent from August 1948 until his discharge on July 21, 1950; as a truck driver servicing a regular route of several cities in Massachusetts. Ayers, like Matthews,and Langone, was a leader in the move- ment to organize the Respondent's employees and had made the arrangements for the meeting held after working hours on July 18 with Kramer, the union 'representative, at the union office. The Respondent knew of Ayers' activities and sympathies in behalf of the Union at least 2 days before the union meeting at which time Ayers had discussed the Union with Foreman Collings and (like Matthews) had also invited' Collings to join the Union. Collings replied that it was a good idea but not in the Respondent's plant because of noncooperation "among the fellows." Following the union meeting, there was open, nonsecretive talk about the Union at the plant and Ayers tried to obtain signatures for the union cards -from other employees. No complaint regarding his work was ever made to him. Three days after the union meeting was held, on July- 21 at 4 p. in., President Luce notified Ayers that his route,was to be divided and his services.. would no longer be required. Ayers then accused Luce of discharging him because of his activities for the Union. Luce disclaimed any knowledge con= cerning the Union and added that he did not want a union in the plant and if there was one, he would close the plant. Ayers was 'replaced by Burrows ' who took over most of his route. Prior to replacing Ayers, Burrows had delivered orders for the Respondent and worked as a general man inside and outside the plant. Conclusions Upon consideration of the entire record of uncontroverted evidence, the in- terference, restraint, and coercion practiced by_theResppndent..as detailed above by interrogation, threats to close the plant, and 'granting a wage increase to an employee to discourage union activity, the absence of any satisfactory reason to explain the summary discharges of the three leaders in the organizational 10 Geary was hired on July 18 and took over Langone 's work on July 21. SOMERVILLE CREAM COMPANY, INC . 11.55 movement, it is clear that the discharges were an integral part of the Respond- ent's purpose to discourage and defeat any efforts directed to organization by its employees. Accordingly, I conclude that because of. their known union mem- berships and activities, the reasons assigned by the Respondent were pretexts' for discharging them and therefore find that in violation of Section 8 (a) (1) and (3 ) of the Act, the Respondent by discharging Charles D. Matthews on July 19, Michael Langone on July 20, and Richard H. Ayers on July 21, 1951, and thereafter refusing to reinstate them, discriminated with respect to.their hire and tenure-of employment, thereby discouraging membership in . the Union and interfering with, restraining, and coercing its -employees in the exercise of the rights guaranteed in, Section 7 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 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 violated Section 8 (a) (1) and (3) of the Act, I shall recommend that it cease and desist therefrom; and that it take affirma- tive action designed to effectuate the policies of the Act. Having found that the Respondent has discriminated against Charles D. Matthews, Michael Langone, and Richard H. Ayers in regard to their hire and tenure of employment, I shall" recommend that the Respondent offer them im- mediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to their seniority or other rights and privileges, and that the Respondent also make each of them whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by paying to each of them a sum of money covering his loss of pay ; such loss to be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of the offer of reinstatement. The quarterly periods, hereinafter called "quarters" shall begin on the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which he normally would have earned for each quarter or portion thereof, has net earnings," if any, in other employment, during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. I shall further recommend that the Respondent, upon request, make available to the National Labor Relations Board, or its agents, for examination and copying, all payroll records, and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this recommended order." 11 By "net earnings" is meant earnings less expenses , such as for transportation , room; and board, incurred by an employee in connection with obtaining work and working elsewhere than for the Respondent, which would not have been incurred but for. the unlawful di9,fFrimination "against him and the.;tcoii equent necessity of. his seeking,; employment elsewhere. See Crossett Lumber Company, 8 NLRB 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. "See F. W. Woolworth Company, 90 NLRB 289. . 961974-52-vol. 95- .-74 1156 DECISIONS' OF-NATIONAL LABOR RELATIONS BOARD The scope of the Respondent's illegal conduct as found above discloses a pur- pose to defeat self-organization among its employees. Because of the Respond- ent's unlawful conduct and its underlying purpose, I 'am convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed and that danger of their commission, in the future is to, be anticipated from the Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the recommendations are coextensive with the threat. In order therefore, to make effective the interdependent guarantee of Section 7, to prevent a recurrence of unfair labor practices and thereby mini= mize industrial strife which burdens and obstructs commerce and thus effectuate the policies of the Act, I shall recommend- that the Respondent cease and desist from in any manner infringing on the rights guaranteed in Section 7 of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Milk Wagon Drivers and Creamery Workers Union, Local 380, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Charles D. Matthews, Michael Langone, and Richard H. Ayers, and thereby dis- couraging membership in Milk Wagon Drivers and Creamery Workers Union, Local 380, International Brotherhood of Teamsters, Chauffeurs,.Warehousemeii and Helpers of America, A. F. L., the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (a) (3) `of the Act. 4. The aforesaid labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] ZENITH RADIO CORPORATION and, INDEPENDENT RADIONIC WORKERS OF AMERICA , PETITIONER . Case No. 13-11C-1979. August 17, 1951 Decision and Order Upon a petition duly filed under' Section 9 (c) of the National Labor Relations Act, a hearing was held before Helene Zogg, hearing officer. The hearing officer's rulings made at the hearing are free from prej- udicial error and are hereby affirmed. 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-mem- ber panel [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds: 95 NLRB No. 155. Copy with citationCopy as parenthetical citation