Squibb Beechnut, Inc.

National Labor Relations Board - Board Decisions

May 22, 1970

182 N.L.R.B. 675 (N.L.R.B. 1970)

DOBBS HOUSES 675
Dobbs Houses, a Division of Squibb Beechnut , Inc., and
American Bakery and Confectionery Workers Interna-
tional Union, AFL-CIO, Local 111. Case 16-CA-3679
May 22, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN AND JENKINS
On February 4, 1970, Trial Examiner Anne F. Schlez-
inger issued her Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices as alleged
in the complaint and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision together with a supporting brief.
The General Counsel filed a brief in reply to the Respond-
ent's' exceptions, and the Respondent filed a response
to the General Counsel's reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in this
case, and hereby adopts the Trial Examiner's findings,'
conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby adopts as its Order the Recommended
Order of the Trial Examiner, and orders that the
Respondent, Dobbs Houses, a Division of Squibb Beech-
nut, Inc., Dallas Texas, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
her 30, 1969. The complaint alleges that Dobbs Houses,
a Division of Squibb Beechnut, Inc., herein called the
Respondent, discharged Jesse Johnson, Jr., because of
his union membership or activities, and threatened, inter-
rogated, and promised benefits to employees to discour-
age their union membership or activites , in violation
of Section 8(a)(1) and(3) of the National Labor Relations
Act, as amended. In its answer, duly filed, the Respond-
ent denies that it has committed any unfair labor practice.
Pursuant to due notice, a hearing was held before
me at Dallas , Texas, on October 29, 1969. All parties
appeared at the hearing and were afforded full opportuni-
ty to be heard, to examine and cross-examine witnesses,
and to introduce relevant evidence. Subsequent to the
hearing, the General Counsel and the Respondent filed
briefs which have been fully considered.
Upon the entire record in this case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation organized under and
existing by virtue of the laws of the State of Tennessee
with its principal place of business in Memphis, Tennes-
see, has at all times material herein been engaged in
the operation of airline catering services throughout the
United States. In the course and conduct of its operations
at Love Field Airport, Dallas, Texas, the only facility
of the Respondent involved in this case, the Respondent
annually ships products valued in excess of $50,000
to points outside the State of Texas, and received goods
valued in excess of $50,000 directly from States other
than the State of Texas. The Respondent in its answer
admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
1. THE LABOR ORGANIZATION INVOLVED
The Respondent in its answer admits, and I find,
that American Bakery and Confectionery Workers Inter-
national Union , AFL-CIO, Local 111, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
' In finding unlawful interrogation by Supervisor Volkland, the Trial
Examiner inadvertently referred to Thompson rather than Volkland.
We hereby correct this inadvertent error and find that Volkland' s interro-
gation of Benavides constituted a violation of Section 8(a)(1) of the
Act
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Trial Examiner: Based upon
a charge filed on July 22 and amended on September
3, 24, and 30,1969, by American Bakery and Confection-
ery Workers International Union, AFL-CIO, Local 111,
referred to herein as the Union or the Charging Party,
the General Counsel, by the Regional Director for Region
16 (Fort Worth, Texas), issued a complaint dated Septem-
III. THE UNFAIR LABOR PRACTICES
A. The Discharge of Johnson
1. Johnson's status
Joe Davis, the general manager of the facility here
involved, testified that there are about 166 employees
and "about eleven" supervisors. The parties stipulated
to the supervisory status of Davis and of David Myers,
the assistant manager; R. E. Thompson, supervisor of
morning shift; Albert Volkland, supervisor of hot food
line and bakery service; and Robert Taylor, night supervi-
sor. The Respondent claimed that several others were
also supervisors within the meaning of the Act, and
described them at the hearing as follows: "Mr. John
182 NLRB No. 95
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hieatt, the supervisor of the cooking and hot foods
section, Hazel Ritchie, supervisor of the cold food
department, Albert Johns, supervisor of equipment and
equipment coordination, Robert Thompson, the supervi-
sor of the morning flight loaders , James Sears, the
supervisor of the midnight shift, Robert Tupper,
the supervisor of the flight loaders in the afternoon,
the p in shift, Robert Taylor, a relief supervisor
Miss Cyrus, supervisor of the dish room department
The Respondent also maintains that Johnson at the
time of his discharge was a supervisor within the meaning
of the Act The General Counsel contends that Johnson
performed leadman functions but had no statutory super-
visory authority
Johnson began to work for the Respondent in August
1965 in the bake shop department, which prepares baked
products and desserts He was a helper to Grady Smith,
whom Johnson described as the "lead" baker, until
about June 1967 when Smith was promoted and Johnson
replaced him One man, Ruben Davis, and two women
worked in the bakeshop with Johnson Either of the
men made the rolls, which involved use of equipment
too heavy for the women to handle The women generally
prepared and dished out the desserts, and the two men
also at times did so The amount of food to be prepared
was determined from a "count board" on which a
dispatcher posted the numbers of first-class and tourist-
class passengers for each flight All four individuals
in the bakeshop shared the cleaning chores, the women
cleaning their work tables while Johnson and Ruben
Davis took turns in cleaning the oven and mopping
the floor Johnson and Ruben Davis also occasionally
helped on the trucks taking food to the airplanes
While Johnson admitted that it was his responsibility
to see that the food was "on specification," was "made
right," and was "put in the dish right, not too much
and not too less," he maintained that all four individuals
in the bakeshop did generally the same kind of work,
that each knew what duties to perform based on
directions from management and the numbers posted
on the count board, and that the work was simple
and routine as all desserts and baked products were
made from written recipes and in large part from prepared
mixes He testified further that he helped train new
employees as did other experienced employees, but that
he exercised none of the supervisory functions set forth
in the Act
General Manager Davis testified that Grady Smith
had been the "head" baker, that Johnson "was pretty
much in charge of the bakeshop at the time" and that
"he was made even more so" when he replaced Smith
as "head" baker, that he was given an increase at
that time from $1 60 to $1 70 an hour,' and that, while
Johnson did manual work, he also exercised supervisory
I General Manager Davis also testified that Johnson was increased
from $ 1 80 to $2 55 an hour in August 1968 when the Respondent
changed from a 6 to a 5 day week that Ruben Davis then received
about two twenty five two twenty or somewhere along in there
that the two women received $ 1 65 an hour and that all those classified
as supervisors are paid between $2 55 and $2 90 an hour Davis and
Myers are salaried
authority over the other three individuals in the bake-
shop Johnson had never recommended anyone for hire
and he admittedly played no part in the hiring process,
but was merely introduced to new employees after they
were hired as "head" or "lead" baker He had never
discharged an employee There were no layoffs in that
department so there was no occasion for him to be
consulted about employees to be laid off He admittedly
could not authorize raises for any employees
General Manager Davis testified in general terms that
Johnson exercised various supervisory powers, but
admitted he could not recall specific occasions when
Johnson did so Assistant Manager Myers, who was
more familiar than Davis with the operation of the
bakeshop, testified that Johnson had authority to repri-
mand employees and had done so frequently He admit-
ted that such "reprimand" was "not the kind that would
be considered real serious," and referred to Johnson
telling an employee , for example , that she was putting
too much dessert in a dish Myers also testified that
at Johnson's request Josephine Taylor was no longer
permitted to work in the bakeshop Johnson denied
that he ever made such a request, and pointed out
that Josephine Taylor worked elsewhere and was sent
to help in the bakeshop only when needed, and Myers
admitted she had worked in the bakeshop only occasion-
ally, and that he did not recall how often as the "number
of occasions varied according to our business
needs "2
Davis and Myers both testified that Johnson worked
directly under their supervision whereas Johnson claimed
that any of several admitted supervisors could and did
supervise his work Davis, who testified that Johnson
could request that particular employees be transferred
to the bakeshop, could not recall that Johnson ever
did so On the other hand, Supervisor Taylor testified
that Johnson had asked him to transfer employees to
the bakeshop when extra help was needed Davis and
Myers both testified that Johnson could authorize bake-
shop employees to leave early and could require them
to work overtime or on their day off Johnson denied
this No records were placed in evidence showing time
off or overtime pay based on authorization by Johnson
Davis and Myers both testified also that Johnson attended
management meetings , which Myers said were held more
often than twice a month Johnson denied that he ever
attended any meetings other than those for all employees
Supervisor Thompson testified that he attended manage-
ment meetings, that he had been in such a "management
meeting when Jessee Johnson was in attendance I
wouldn't say frequently It was when Mr Davis saw
necessary to straighten out any discrepancies that was
happening " Later, when asked by counsel for the
Respondent whether various named individuals were
present at such meetings, he replied "Yes, sir" to each
name including that of Johnson
Pins were worn by various categories of personnel,
the color indicating their status At the time of Johnson's
' Josephine Taylor who is the wife of Supervisor Taylor was not
called to testify
DOBBS HOUSES
discharge, employees wore black pins, lead personnel
black and red pins, and supervisors white pins marked
"Supervisor." Johnson originally wore a black pin and
'was wearing a black and red -pin at the time of his
discharge. He never wore a white pin or one marked
"Supervisor."
Johnson was succeeded by Volkland, whose supervi-
sory status was stipulated. Volkland testified that he
was "Supervisor of the bake shop" but, when asked
by counsel for the Respondent if he was "known as
head of the Bake Department, or bake shop." he replied
"Yes, sir." The complaint lists him as "Supervisor
of Hot Food Line and Bakery Service,"3 and in the
Respondent's answer this is admitted " as alleged in
the Complaint." Moreover, as shown in Section B.2(a)
below, Volkland was an admitted supervisor before John-
son's discharge. Volkland testified that he wore a white
pin, and that he did not recall what kind of pin Johnson
wore.
I find the testimony presented by the Respondent
as to Johnson' s alleged supervisory status vague, contra-
dictory, and unconvincing. I found Johnson a candid
and honest witness, and credit his testimony as to his
functions -while in the Respondent's employ. I find,
therefore, on the basis of credited or undisputed testimo-
ny, that Johnson exercised some leadman functions and
responsibilities in routine ` matters not requiring the use
of independent judgment , but that he did not possess
any of the indicia of supervisory status set forth in
the Act. Accordingly, I find that Johnson.was not a
supervisor but an employee within the meaning of the
Act.4
2. Johnson's union activity; Respondent's knowledge
thereof
The Union began organizing the Respondent's employ-
ees in late March or early April 1969. The Respondent's
officials were aware early in April of the union campaign
as some of them, including General Manager Davis,
observed representatives of the Union parked near the
premises . On one occasion, Davis testified, he saw them
follow a station wagon as it left the premises with
"at least five" employees in it . Davis could recall the
identity of only three of these employees, Doug Davis,
Larry Jernigan, and Alfred Johnson, whom he thereupon
assumed to be active in organizing the Union. While
he could not recall who the other employees were,
he testified that Johnson was not one of them, but
did not explain why he noted Johnson's absence at
that time.
Johnson signed a union card on about April 18, and
solicited a number of other employees to sign cards.
He testified that he engaged in such solicitation during
working hours as well as on' his free time as there
' Although there is considerable variance in the record as to superviso-
ry designations, it appears that all the individuals stipulated to be
supervisors as well as those the Respondent claimed to be additional
supervisors, except Johnson, had job titles designating them as "Supervi-
sor," the word which appeared on their white pins
" See Marinette Marine Corporation, 179 NLRB No 102
677
was no rule, prohibiting such conduct. He also testified
that on Tuesday, April 22, after asking Supervisor Taylor
for some pecans, he asked what Taylor thought about
the Union; that Taylor replied he thought the boys
were crazy; that Johnson argued :it was a good thing
and would help all concerned', including supervisors,
and asked if Taylor would sign a card;-and that Taylor
looked at the card, said he would be back- later to
sign one , came back later and asked to see the card
again , returned it to Johnson, and said he would sign
one before he left.
Johnson, further testified that he passed out more
cards that day at lunchtime and when the evening shift
came on; that he was in the dishroom trying to get
Sanders and other employees to sign cards when Sanders
told him Assistant Manager Myers was watching him;5
that Johnson looked at Myers and said it did not -matter
because 51 percent of the employees had, signed cards,
enough to have an election; and that Myers said nothing
but went to Davis' office, which was about 8 or 10
feet from Johnson's work place, came out of the office
in about 15 minutes and said Davis wanted to see
Johnson, and Johnson followed Myers to the office
and was discharged as described below.
Taylor admitted that Johnson had asked him if he
wanted to sign a card. He testified' that he said "No,"
and, when asked if Johnson said anything further, replied
"no, not really." He testified further that he could
not recall other remarks in the conversation to which
Johnson had testified; that he did not-report this conver-
sation to management ; and that he had no knowledge
as to the reason why Johnson' was terminated. I. found
Johnson's testimony more reliable than that of Taylor,
and I credit Johnson's description of this conversation.
Further, as I found Taylor's testimony in this matter
evasive and equivocal, I do not, -in light of the total
record, credit his denial that he reported this incident
to management.
Myers denied that he had seen Johnson distributing
union cards, and then added, "Not that I remember."
He also testified that, while he had not seen the union
people "hanging around," Davis had told him about
them, but no one-'had told him Johnson was handing
out cards. Myers admitted that he summoned Johnson
to Davis' office, but could not recall whether Davis
came out of the office and aked him to do so or if
he was already in Davis' office. He testified that he
did not ask why Davis wanted to see Johnson as he
knew he would find out, and then admitted that he
had an idea why Johnson was being called to the office.
I do not credit Myers' vague and self-contradictory
denials, and find, based on all the relevant circumstances,
that he observed Johnson soliciting employees to sign
union cards, and that he promptly so reported to General
Manager Davis. I likewise, on the basis of all the evi-
dence, do not credit Davis' assertions that he was not
told by Taylor, Myers, or anyone else that Johnson
was distributing union cards, and that he had no knowl-
S Sanders was not called to testify
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edge at the time of Johnson's discharge that Johnson
was active on behalf of the Union
3 Johnson's discharge
On Tuesday , April 15 , two women employees had
a fight The aggressor was Pauletta Smith Johnson,
who had been married to Johnson for about 2 years
The Respondent , however , had not been notified of
the marriage and, at the time of the hearing , Pauletta
was still designated in its employment records as Pauletta
Smith The other woman in the fight was Lillie Tolliver,
a former "girl friend" of Johnson Johnson admitted
that the women were fighting about him When he saw
them fighting , he attempted to break it up , as did General
Manager Davis and others After the women had been
separated , Davis told Johnson to take Pauletta home,
which Johnson did Davis then discussed what had
occurred with Tolliver The following morning , Wednes-
day, Davis telephoned Pauletta and told her she was
discharged , and he suspended Tolliver for 3 days," but
he said nothing about the fight to Johnson
Wednesday and Thursday were Johnson ' s days off
He returned to work on Friday , and worked from Friday,
April 18 through Tuesday , April 22 , until , as described
above , he was summoned by Myers to Davis' office
In the office , Johnson testified , Davis said the fight
between the two women revolved around Johnson,
although Johnson protested that " I wasn 't fighting any-
body ," Davis said Johnson had been warned when he
engaged in a fight with another employee , as he admitted-
ly did about 4 years earlier , that he would be discharged
if he was ever involved in a fight again , this fight
was about Johnson and so, despite Johnson ' s protests
that he did not feel he was responsible for the actions
of others , Davis was letting him go , Davis also stated
that if Johnson did not go back to his job or start
trouble , he would send Johnson his pay for 2 weeks'
vacation , when Johnson asked what trouble Davis was
referring to, Davis said , "Start any trouble , come back
on the job , passing out no cards, pick up your check,
or anything at all", and , finally , Johnson mentioned
that he had some rolls on the table , but Davis told
him to "leave them and go ahead on," whereupon
Johnson changed his clothes and left
Myers testified that during the week following the
fight Davis discussed the fight with him, and said that
he had investigated "all aspects of the fight " and had
discharged the two girls Myers testified further that
he felt sure Davis had also discussed it with Johnson,
that the decision to discharge Johnson was reached
at the time Davis discharged Johnson , and that he did
not know what took so long Regarding the discharge
conversation , Myers testified "Of course , this was right
after a fight that evolved around him, Jesse ", Davis
"reminded him that he was in a fight some time back,
and he told him that if he was ever involved in another
fight he would lose his job the fact that
he was involved in this fight , or was the principal figure
in this fight, I'll say, that that was the reason for
his termination",7 Johnson "kind of shook his head
and said `I can't see that,' " and "That was about
all that Jesse had to say", Davis replied "Well, that
is your privilege But that is the way I see it", and
the conversation concluded with Davis telling Johnson
that "as a courtesy he would send his check by another
employee," and that "he would pay him for his full
vacation " Myers said nothing during this interview
General Manager Davis testified that Johnson helped
break up the fight between the two women, that he
told Johnson to take Pauletta home and Johnson did
so, that he discussed the fight immediately after that
with Tolliver and "may have talked to [Supervisor]
John Hieatt about it" but was not sure, and that he
did not discuss it with anyone after that He also testified
that on the morning after the fight he discharged Pauletta
and gave Tolliver a 3-day suspension, that Tolliver
reported on Tuesday, April 22, that she would be out
longer because she had a broken collarbone, that he
decided to discharge Johnson when he heard how badly
Tolliver was hurt, that although he had not discussed
the fight with Johnson at any time between the fight
and the discharge, he had already decided to discharge
Johnson when he sent for him, and that Johnson was
discharged, as stated on his termination slip, for "causing
a fight," which was admittedly the first time an employee
had been discharged for this reason Davis apparently
did not say anything to Johnson about Tolliver's broken
collarbone His testimony about the discharge conversa-
tion was as follows
Well, I told him that the more I found out
about the fight, and the reason for the fight-
well, that I was going to discharge him I reminded
him of an incident that occurred back pretty soon
after he first went to work He had not been there
more than, oh, I would say less than six months
when he had another fight I promised him at that
time that I would let it go that time, but that
I would never let him get away with anything
similar to that again So, I told him that because
of this, and because of the more I found out
about this fight, what brought on the fight, the
more I was convinced that there were going to
continue to be problems if I let him continue to
work So, I told him that I was going to let him
go That was it Of course he disagreed that he
was responsible for it But I told him that the
only way I could see it was that he was responsible
I told him that he would get his normal vacation
pay, two weeks vacation pay And that it
would be the following Wednesday before he would
get it And also I told him that as a courtesy
to him we would let Ruben carry his check that
was due the following day I told him that we
could mail his vacation pay to him
At another point in his testimony Myers stated that Davis had
warned Johnson at the time he was involved in a fight that he would
be terminated if there was any more of it fighting because of you
h Neither Pauletta Johnson nor Lillie Tolliver was called to testify an apparent attempt to broaden the terms of the warning
DOBBS HOUSES
Jim Henry had been employed by the Respondent
about a year, was terminated on April 8, 1969, and
at the time of the hearing was living in Houston. On
about May 1, while Henry was still living in Dallas
and had been injured at work, Supervisor Taylor visited
him at home. Henry testified that he and Taylor had
been friends about 2 years; that he heard from his
sister, a former employee of the Respondent, that John-
son was discharged so asked Taylor about it; that Taylor
"told me that Jesse was going around passing cards,
trying to get the employees at Dobbs House to sign,
and trying to get the union in"; that when Henry said
"That was no reason to get fired," Taylor replied,
"Well, you know how they are out there. . . . Mr.
Myers saw him when he was, going around giving the
cards to the employees to sign." Henry testified further
that Taylor did, not mention the fight. Taylor denied
that' he and Henry were friends but admitted visiting
him after Henry had been injured. Taylor could not
recall when this occurred, whether before or after John-
son's discharge, but testified he knew they did not
discuss Johnson, and that he still did not know at
the time of the hearing why Johnson was discharged.
I found Henry's testimony more convincing than that
of Taylor, and credit Henry's description of this conver-
sation.
4. Concluding findings
The Respondent maintains that Davis discharged John-
son for "causing a fight," and that Davis had no knowl-
edge at -the time of the discharge of Johnson's activity
on behalf of the Union. I have found above, however,
that both Supervisor Taylor' and Assistant Manager
Myers knew Johnson was soliciting signatures to union
cards, and that Davis was informed of Johnson' s union
activity. This is further demonstrated by the timing
of what occurred. After Myers observed Johnson solicit-
ing signatures , he went immediately to Davis' office
and minutes later summoned Johnson to the office where
Johnson was discharged. Davis admitted that he had
already decided to discharge Johnson when he had John-
son called to the office. Myers admitted that he had
an idea, when he summoned Johnson to the office,
what was about to occur, although Davis indicated in
his testimony, contrary to that of Myers, that he had
not discussed the fight with Myers, who was not at
work when it occurred. The decision to discharge John-
son was reached in spite of the facts, admitted by
Davis, that Johnson's participation in the fight was only
to break it up, that he took Pauletta home as Davis
directed him do do, and that Davis during the following
week made no mention of the fight to Johnson. And
the decision was carried out even though Johnson pro-
tested at the' discharge interview that he did not fight
anyone and should not be held responsible for the con-
duct of other employees.
Davis explained in his testimony that he discharged
Johnson on April 22 because of the seriouness of Tolliv-
er's injuries as he was informed on that day that Tolliver
had a broken collarbone. There was no mention in
679
the discharge interview, however, 'of Tolliver' s injuries,
and Myers made no reference in his testimony to a
broken collarbone. Moreover, Davis did not explain
why this information warranted the summary discharge
of Johnson, after years of satisfactory service, a week
after a fight, between two other employees, and after
the discharge of the antagonist in the fight. Davis likewise
did not explain the urgency of effecting the discharge
not only before the end of a pay period but also before
the end of Johnson's shift, without permitting Johnson
to complete the rolls he had started to prepare.
It is apparent from the entire record, and I find,
that Davis attributed the timing of the discharge to
notification about Tolliver's broken collarbone as an
afterthought.8 I find further that the only inference sup-
ported by the evidence is that .Davis' decision to dis-
charge Johnson was reached when Myers told him of
Johnson's organizing activities," and that reliance on
the fight as the cause of the discharge was pretextual.
Further, the credited evidence indicates that the reason
for Davis' urgency in hastening Johnson's departure
and preventing his return to pick up his wages or vacation
pay was to prevent his engaging in further union solicita-
tion of the Respondent's employees. Discriminatory
motivation for Johnson's discharge is demonstrated not
only by the timing and all, the surrounding circumstances,
but also by the postdischarge remarks of Supervisor
Taylor to Henry set forth above, and of Supervisor
Thompson discussed, in Section B(1) below. 10
In sum, I find. that immediately after-Myers observed
Johnson soliciting signatures for union cards, Myers
so reported to Davis, confirming Taylor's report earlier
in the- day that Johnson asked him to sign a card;
that Davis thereupon decided to terminate Johnson imme-
diately and did so; and that Davis directed Johnson
not to remain onior return to the Respondent's premises
to "Start any trouble . '. . passing out no cards.. . ."
Accordingly, I find that the Respondent's assertion of
the fight as the cause. of the discharge was pretextual,
that the Respondent discharged Johnson on April 22,
1969, because of his open and known solicitation of
union membership," and, therefore, that the Respondent
discharged Johnson fn order to discourage union member-
ship and activity in violation of Section 8(a)(3) and
(1) of the Act. 12
B. Interference, Restraint, and Coercion
The complaint alleges that the Respondent engaged'
in the following conduct in violation of Section 8(a)(l)
of the Act: (1) on or about April 25, Supervisor Thomp-
son threatened employees with discharge if they joined
or assisted the Union; (2) Supervisor Volkland on or
s See Roane Hosiery, Incorporated, 180 NLRB No 15, (TXD)
See N L R.B . v Mira-Pak Inc , 354 F.2d 525, 527 (C A 5), enfg
147 NLRB 1075, Miller Redwood Co., 164 NLRB 389
Federal Pacific Electric Company, 179 NLRB No. 127
See Drexel Enterprises, Inc , 180 NLRB No 46; Ambox, Incorporat-
ed, 146 NLRB 1520
12 Keller Industries, Inc , 174 NLRB No 58; N L R B v Schoellkopf
Products, Inc , 410 F 2d 82 (C A 5, 1969)
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about April 21 and Supervisor Thompson on or about
May 15 interrogated employees concerning their union
membership, activities, and desires, and (3) General
Manager Davis on or about April 22, 1969, promised
employees vacation pay if they refrained from joining
or assisting the Union
1 Threats
Douglas Davis, an employee who was held of the
Union's organizing committee'13 testified that he had
been openly soliciting people to join the Union while
at work but without letting it interfere with his work,
that shortly after Johnson's discharge, on or about April
25, Supervisor Thompson "saw me drop a card to
an employee", that when he proceeded out to the dock,
"Mr Thompson immediately came out behind me, and
he said `You think you're smart I saw you drop that
card I know you was the head of this all the time,
and not Jesse [Johnson] ' Then he said `Now, you
don't want the same thing to happen to you that happened
to Jesse, do you 9' I said `Nope ' "
Thompson testified that he did not see Douglas Davis
distributing union cards in April 1969, that he did not
have a conversation with him about the Union "in
April or any other time that I can remember", and
that he would not use a phrase like "drop a card "
Thompson testified further that he did not "really"
know about the union organizing until late May, at
least 30 days after Johnson's discharge, and that he
did not know about the election petition filed in late
April 14 He admitted, however, that he had heard rumors
about the union movement from "various people
just the employees and people talking " Finally he also
admitted that he heard it from Davis and Myers, the
general manager and the assistant manager, although
he denied that he ever discussed the Union or the
election with them
I credit Douglas Davis, whose demeanor and testimony
I found more candid and straight forward than that
of Thompson I find, therefore, that Thompson threat-
ened Douglas Davis that he would be discharged, as
was Johnson, if he continued to engage in activity on
behalf of the Union, and that the Respondent, by such
conduct, violated Section 8(a)(1) of the Act
2 Interrogation
to talk to him confidentially, so they got into a truck
where there were no other employees, that Volkland
asked what he knew about the union activities, to which
he replied that he knew nothing about the Union, that
Volkland then asked if he had signed a card, and he
said he had not, and that he told Jernigan and Douglas
Davis, who were active in the union campaign, about
Volkland's inquiries
Volkland, who had known Benavides before coming
to work for the Respondent, admitted that he had heard
about the Union as it was the general subject of discus-
sion and that he talked to Benavides about the Union
in April, when he was working as a relief supervisor 10
He described the conversation as follows "I had heard
that there had been some union people around I just
more or less asked him if he was familiar with their
appearance It was just for curiosity on my part
he claimed no knowledge of how they looked, their
appearance He was unable to describe them to
me, or anything " The Respondent's brief states
The inquiry of supervisor Al Volkland posed
to employee Benevedes is clearly improper His
action cannot be defended upon the relationship
between the two men, nor upon Volkland's inept
attempt to maintain a confidential discussion with
employee Benevedes His zeal in trying to identify
the union representatives and ascertain other infor-
mation about the union through employee Bene-
vedes is not condoned by the Respondent or its
Counsel
The brief urges nevertheless that no cease-and-desist
order should issue based on "this admittedly improper
incident" because of all the circumstances, including
the fact that there were no other instances of interroga-
tion by Volkland of Benavides or of other employees,
and that Volkland and Benavides have had "an off-
the-job relationship for some time "
I find no merit in these contentions I credit the
description of the conversation given by Benavides,
whom I found a frank and trustworthy witness Accord-
ingly, and in light of the Respondent's other unfair
labor practices, I find that Volkland's interrogation of
Benavides as to what he knew about the union activities
and whether he had signed a card constitutes interfer-
ence, restraint, and coercion violative of Section 8(a)(1)
of the Act, and that issuance of a cease-and-desist
order is warranted as to this and the other conduct
found unlawful "I
a By Supervisor Volkland
Alfonso Benavides, who had resigned from the
Respondent's employ prior to the hearing herein, testified
that in about the middle of April, while still employed
by the Respondent, Supervisor Volkland said he wanted
13 General Manager Davis admitted that he understood even before
receipt of a letter from the Union in late April or early May listing
the organizers that Douglas Davis was engaging in Union activity
because he was one of the employees in the station wagon that was
seen being followed by the Union representatives
i" The parties stipulated at the hearing that an election was conducted
among the Respondent s employees on July 2 1969
b By Supervisor Thompson
In late April or early May, after Johnson's discharge,
the Respondent received from the Union a letter indicat-
ing that an organizing committee had been set up and
IS This apparently occurred prior to Volkland s change in title following
Johnson s discharge
i" Dryden Manufacturing Company Inc dlbla Atlas Truck Body
Manufacturing Company, 174 NLRB No 46, enfd in relevant part,
421 F 2d 267 (C A 5 Jan 1970) New Truck Transport Inc 178
NLRB No 83 (TXD) p General Automation Mfg Inc 167 NLRB
502 Rocky Mountain Natural Gas Company Inc 140 NLRB 1191
DOBBS HOUSES 681 t
naming those on the committee, including Johnson,
Douglas Davis, Larry Jernigan, and Benavides Bena-
vides testified without contradiction that the names of
the committee members listed in the letter were projected
on a screen in the lunchroom Benavides also testified
that on the following day Supervisor Thompson asked
him why he signed "a card for union representation,"
which Benavides denied doing, and that Thompson then
asked why his name was on the organizing committee,
which Benavides denied knowing anything about
Thompson testified that he first knew of the union
organizing committee when counsel for the Respondent
showed him a letter with some names on it "near
the time when the company was presenting its point
of view on the election," which Thompson estimated
was sometime in late May He also testified that when
he learned that the names of the union organizing com-
mittee included people with whom he worked, he was
upset "to a certain extent I would say that it
surprised me more than it upset me", that he did not
discuss it, or did not recall discussing it, with Benavides,
and that, even at the time of the hearing , he did not
know whether or not Benavides supported the Union
I credit the testimony of Benavides, and find that
the Respondent , by Thompson' s interrogation of Bena-
vides as to why he signed a union card and why his
name was one of those on the union organizing commit-
tee, violated Section 8(a)(1) of the Act 17
3 Promise of benefit
The allegation of unlawful promise of benefit is based
an Davis` statement to Johnson about vacation pay
at the time of Johnson's discharge As Davis testified,
"I told him that he would get his normal vacation
pay, two week vacation pay And that it would
be the following Wednesday before he would get it
I told him that we could mail his vacation pay
to him " According to Myers, Davis "said he would
pay him for his full vacation" and, further , "I believe
the conversation ended when Mr Davis told him that
he would give him his vacation pay " As found
above on the basis of Johnson's credited testimony,
Davis' statements that he would give Johnson his normal
vacation pay and would mail it to him were premised
on Johnson not returning to the Respondent 's premises
to "Start any trouble passing out no cards "
The Respondent points out that Johnson was entitled
to the vacation pay under its established policy, and
contends that Davis' offer of vacation pay to Johnson
could not therefore constitute an improper promise of
benefit
t° I find no merit in the contentions made in the Respondents brief
that Thompson s knowledge about Benavides surprised and upset this
supervisor to make a most natural exclamation and registered his sponta
neous disappointment that this man had signed a union card and
that no remedial order should issue therefore regarding the unfortunate
conduct of supervisor Thompson It appears from the comments in
its brief that the Respondent did not credit the testimony in this matter
of Thompson its witness
I find that Davis, in seeking to persuade Johnson
to stay away from the Respondent' s premises in order
to preclude any further solicitation of union signatures,
couched his offer to give Johnson his "normal vacation
pay" and to mail the check therefor in a manner that
constituted a promise of benefit Accordingly, I find,
in all the circumstances of this case, that Davis made
a promise of benefit to Johnson premised on Johnson
refraining from further union solicitation of the Respond-
ent's employees, and that the Respondent thereby violat-
ed Section 8(a)(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
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 f8ow of commerce
V THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section
8(a)(1) and (3) of the Act, I shall recommend that the
Respondent cease and desist therefrom and from in
any other manner infringing upon its employees ' Section
7 rights,18 and take certain affirmative action designed
to effectuate the policies of the Act
It has been found that the Respondent discharged
Jesse Johnson , Jr , in violation of Section 8(a)(3) and
(1) of the Act Just before the hearing closed, after
7 p in , the Respondent recalled Johnson to the stand
and asked if he would "go back to work with this
company in the same position within the few [sic ] days9"
When I permitted the witness to answer this question
over the General Counsel's objection, Johnson asked,
"Do you mean would I like to go back to work at
Dobbs')" The Respondent's counsel stated "Yes Would
you go back to work with Dobbs Houses in the same
position9" Johnson replied, "No, I don't think so "
On cross-examination, the General Counsel asked John-
son whether he previously had "been offered your job
back at Dobbs Houses," to which Johnson replied,
"Until he just asked me, no " The General Counsel
then asked counsel for the Respondent, " was that
an offer9" Counsel for the Respondent replied, "Of
course it was " After Johnson left the witness stand,
the General Counsel moved to strike the Respondent's
question and the answer pertaining to Johnson ' s desire
to return to work for the Respondent The motion was
denied
I find nevertheless, in all the circumstances of this
case, that the Respondent's question of Johnson at
the hearing did not adequately meet the obligation to
1' N L R B v Entwistle Mfg Co 120 F 2d 532 536 (C A 4)
N L R B v Express Publishing Company 312 U S 426 437
1 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remedy its discriminatory discharge of Johnson, that
Johnson's response was equivocal, and that it will effec-
tuate the policies of the Act to require the Respondent
to make an adequate offer to reinstate Johnson 19 Johnson
was evidently taken by surprise when the Respondent
asked if he wanted his job back No offer of reinstate-
ment had previously been made There was no reference
to this in his lengthy cross-examination by the Respond-
ent's counsel, who indicated at its close that he might
recall Johnson on a particular matter, which had no
reference to reinstatement The subject of returning
to work was put to Johnson as a question, not as
an offer Johnson responded with a question as to what
the Respondent's question meant and, when it was restat-
ed, replied, with an apparent lack of certainty, "No,
I don't think so " Johnson was employed elsewhere
at the time, and was given no opportunity to make
a considered choice whether to retain his present employ-
ment or return to his former employment, or, if the
latter, to give reasonable notice to his current employer 20
The question gave no indication to Johnson that the
Respondent's policy with respect to Ois activity on behalf
of the Union "was in any way altered "21 Johnson's
response to the question did not manifest "an unequivo-
cal resolve not to accept reinstatement " 22 Moreover,
the question whether Johnson desires reinstatement is
a factor which may be considered at the compliance
stage of this proceeding 23 I find, in conclusion, that
the Respondent's question at the hearing was not an
adequate offer of reinstatement and, therefore, that it
did not toll the Respondent's backpay obligation 24
Accordingly, I shall recommend that the Respondent
offer to Jesse Johnson, Jr , immediate and unconditional
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other
rights and privileges, and make him whole for any
loss of earnings he may have suffered by reason of
the discrimination against him by payment of a sum
of money equal to that which he would normally have
earned as wages from April 22, 1969, the date of his
discharge, to the date on which the Respondent shall
make an adequate offer of reinstatement, less his net
earnings during said period Backpay shall be computed
in the manner prescribed in F W Woolworth Company,
IS As the Supreme Court stated in Phelps Dodge Corporation v
N L R B 313 U S 177 187 Reinstatement is the conventional correc
tion for discriminatory discharges
21 See Betts Baking Company 173 NLRB No 157 Lipman Bros
Inc 164 NLRB 850 853 and cases cited therein
21 Laminating Services Inc 167 NLRB 234 See also Lipman Bros
Inc supra Art Metalcraft Plating Co Inc 133 NLRB 706 enfd
303 F 2d 478 (C A 3) Santa Fe Drilling Company 171 NLRB No
27 Heinrich Motors Inc 166 NLRB 783
22 Lipman Bros Inc supra See also Arista Service Inc 127
NLRB 499 where the Board ordered the employer to offer reinstatement
to an employee who had affirmed at the hearing that he did not
desire to work for the Respondent Company
11 Arista Service Inc supra
24 Betts Baking Company supra
90 NLRB 289, together with interest thereon at the
rate of 6 percent per annum, as set forth in Isis Plumbing
& Heating Co , 138 NLRB 716
Upon the basis of the foregoing findings of fact and
upotl the entire record in the case I make the following
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 Jesse Johnson , Jr , is an employee within the mean-
ing of Section 2(3) of the Act
4 By threatening to discharge an employee for engag-
ing in union activities , by interrogating employees about
the union organizing campaign and their participation
therein in circumstances constituting interference,
restraint , and coercion , and by making a promise of
benefit to induce an employee to discontinue his union
activities , the Respondent has violated Section 8(a)(1)
of the Act
5 By discharging Jesse Johnson , Jr , because of his
activities on behalf of the Union, the Respondent has
violated Section 8(a)(3) and (1) of the Act
6 The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I recommend that the Res-
pondent, Dobbs Houses, Inc , a Division of Squibb
Beechnut, Inc , Dallas, Texas, its officers, agents, suc-
cessors, and assigns, shall
I Cease and desist from
(a) Threatening to discharge employees for engaging
in union activities, unlawfully interrogating employees
about a union organizing campaign and their participation
therein, and making promises of benefit to induce
employees to discontinue their union activities
(b) Discharging or otherwise discriminating in regard
to the hire and tenure of employment or of any term
or condition of employment of its employees because
of their membership and activities on behalf of the
Union herein or any other labor organization of their
choice
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act
DOBBS HOUSES 683
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Jesse Johnson, Jr., immediate and uncon-
ditional reinstatement to his former -or substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole
for any loss of earnings he may have suffered by reason
of the discrimination against him in the manner set
forth in the section of this Decision entitled "The Reme-
dy.'
(b) Notify Jesse Johnson, Jr., if at present serving
in the Armed Forces of the United States, of his right
to full reinstatement, upon application, in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Recommended Order. I
(d) Post at its operation at Dallas Love Field, Dallas,
Texas, copies of the attached notice marked "Appen-
dix."25 Copies of said notice on forms provided by
the Regional Director for Region 16, shall after being
duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily post-
ed. 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 Region 16, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply here-
with.26 •
25 In the event no exceptions are filed as provided by Section 102.46
of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions , recommendations, and Recommended Order
herein shall, as provided in Section 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
In the event that the Board's Order is enforced by a judgment of
a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board
26 In the event that this. Recommended Order is adopted by' the
Board , this provision shall be modified to read - "Notify said Regional
Director, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to discharge employees
for engaging in union activities, unlawfully interro-
gate employees about a union organizing campaign
and their participation therein, or make promises
of benefit to induce employees to discontinue their
union activities. , i ,
WE WILL NOT discharge or otherwise discriminate
in regard to the hire and tenure of employment
or of any term or condition of employment of
our employees because of their membership in and
activities on behalf of the union named below or
of any other labor organization of their choice.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of 'their right to self organization, to form,
join, or assist American Bakery and Confectionery
Workers International Union, AFL-CIO, Local 111,
or any other labor organization, to bargain collec-
tively through representatives of their own choos-
ing, or to engage in other concerted activities for
the purpose of 'collective bargaining or other mutual
aid or protection, or to refrain from any or all
such activities.
WE WILL offer to Jesse Johnson, Jr. his former
or substantially equivalent position, without preju-
dice to his seniority and other rights and privileges,
and WE WILL pay him for any loss of earnings
he may have suffered as a result of our discrimina-
tion against him together with interest thereon at
6 percent per annum.
WE WILL notify Jesse Johnson, Jr., if at present
serving in the Armed Forces of the United States,
of his right to full reinstatement, upon application,
in 'accordance with the Selective Service Act and
the Universal Military Training and Service Act,
'.'as amended, after discharge from the Armed
Forces.
All our employees are free to become, remain, or
to refrain from becoming or remaining, members of
the above-named or any other labor organization.
Dated By
DOBBS HOUSES, A
DIVISION OF SQUIBB
BEECHNUT, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This Notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this Notice or compliance
with its provisions, may be directed to the Board's
Office, 8A24 Federal Office Building , 819 Taylor Street,
Fort Worth, Texas 76102 Telephone 817-334-2921.