Valley Feed and Supply Co., Inc.

National Labor Relations Board - Board Decisions

Feb 1, 1962

135 N.L.R.B. 778 (N.L.R.B. 1962)

778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Valley Feed and Supply Co., Inc. and International Brother-
hood of Teamsters and Chauffeurs , Warehousemen and Help-
ers, Local Union No . 445. Case No. 2-CA-7215. February 1,
1962
DECISION AND ORDER
On December 29, 1960, Trial Examiner William Seagle issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and had not
engaged in others but recommending that the complaint be dismissed
in its entirety as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief, and the Respondent filed a brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions, the briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions' of the Trial Examiner.
[The Board dismissed the complaint.]
CHAIRMAN MCCuLLocn, concurring in part and dissenting in part :
I concur with my colleagues in the Trial Examiner's dismissal of
those portions of the complaint pertaining to violations of Section
8 (a) (1) and the alleged discriminatory discharge of employees Wat-
son and Maxwell. Although, if examining these charges de novo, I
would be strongly inclined to find them supported by substantial evi-
dence, I feel bound by the credibility findings of the Trial Examiner.
But even accepting the Trial Examiner's findings of fact with respect
to the discharge of Cooper, Gamble, and Stevens, I would find them to
have been motivated by the Respondent's antiunion animus and thus
violative of Section 8(a) (3) of the Act.
1. Employee Cooper
It was employee Cooper who began the drive to organize Respond-
ent's employees in November 1959 by getting in touch with a repre-
sentative of Local 445, Lanier. Lanier then met with a group of
f i In the absence of any exceptions thereto, we adopt pro forma the Trial Examiner's
indings that the incidents involving Mrs. Davidson and the use of the American Legion
Hall constituted violations of Section 8(a) (1). They were isolated acts , however, not
likely to be repeated, and no purpose would be served by invoking the preventive machinery
of the Act and issuing a formal cease-and -desist order.
135 NLRB No. 78.
VALLEY FEED AND SUPPLY CO., INC. 779
Respondent's employees which included both Cooper and Gamble.
Another meeting was held on December 4 at which Cooper acted as
"main spokesman for the group" and at which Cooper, together with
Gamble and other employees , signed union authorization cards.
Thereafter Cooper was a very active adherent of Local 445 recruiting
4 of the 14 employees who eventually signed union authorization cards.
And it was sometime between the December 4 meeting and the dis-
charge of Cooper on December 15 that Plitt, Respondent's president,
questioned Gamble's aunt, Mrs. Davidson, with whom both Cooper and
Gamble lived, regarding the union activities of the two employees and
tried to persuade her to talk to them to dissuade them from such
activities.
The evidence thus establishes that Cooper was one of the leading
adherents of the union, that the Respondent knew of his union activ-
ities, and that the Respondent objected to them. This evidence, to-
gether with that which clearly establishes that Cooper had 2 years of
service with the Respondent during which no complaint was voiced
concerning his service would seem to justify a conclusion that Cooper
had been discharged because of his union activities. The Trial Exam-
iner rejected this conclusion , however, finding that the discharge was
occasioned by Cooper's record of tardiness and absenteeism. I not
only find that evidence supporting the Trial Examiner's conclusion
unconvincing but find the assertion of this reason for the discharge to
be a subterfuge, the resort to which bulwarks my conclusion that the
discharge stemmed from Cooper's activities on behalf of the Union.
As the Trial Examiner found, Cooper did have a record of tardiness
and unexplained absenteeism . But as he also found , this "grievous"
record had been compiled for a long period of time when Cooper had
held two jobs , one at the Respondent 's plant and another with Fisher
Body, a practice that ceased in August , some 4 months prior to the
discharge , when Cooper was laid off by Fisher Body. I regard it as
highly significant that the Respondent tolerated this conduct at a time
when there was no union organizational drive at the plant, but, as will
appear below , found Cooper 's absenteeism intolerable when such a
drive was underway.
The specific incident of absenteeism which Respondent contends
triggered his discharge occurred on Friday afternoon, December 11.
Cooper did not return to work until Tuesday, December 15. Before
punching in for work he was called to Plitt's office and fired. And
upon returning home he found a letter awaiting him dated Decem-
ber 12 stating that this was his third warning regarding absenteeism.
These facts not only do not support the Trial Examiner's inference
that the discharge was for absenteeism but effectively refute such an
inference . Plitt discharged Cooper before he had received the warn-
ing letter, and for that matter without bothering to find out whether
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had received it. The eagerness with which Plitt seized upon the
first opportunity to rid himself of the leading union adherent con-
vinces me that Cooper was discharged for his union activities and
not because of his absenteeism.
2. Employee Gamble
Joseph Gamble, like Cooper, was one of the originators of the
union movement, attending the first meeting of those interested in
unionization and all of the subsequent meetings. Although not as
active as Cooper he, too, solicited union memberships. From an em-
ployment standpoint not only was there no complaint about his serv-
ice of 2 years, but he became a strawboss on the night shift and, as
the Trial Examiner found, a particularly valuable employee. The
Respondent's knowledge of, and antipathy toward, Gamble's activity
in the Union is demonstrated by the incident mentioned above where-
in Plitt attempted to persuade Gamble's aunt, Mrs. Davidson, to talk
to both Gamble and Cooper. Gamble was discharged on the same
day as Cooper and allegedly for the same reason, absenteeism, with
apparently an additional reason , prevarication. Here the absentee-
ism was for only one regular working day, a Monday. On Tuesday
Gamble's girlfriend called to tell Respondent he would be absent,
representing herself as Gamble's aunt.
I cannot accept the Trial Examiner's conclusion, under these cir-
cumstances, that Gamble was discharged for absenteeism and prevari-
cation. Gamble, according to the Trial Examiner, had a "grievous"
record of tardiness and absenteeism yet this became insupportable
only with the advent of the Union. Moreover, I am unable to compre-
hend the significance of the girlfriend's misrepresentation particularly
since it was made not to Plitt but to one of the office workers. As in
Cooper's case, I conclude that the Respondent seized upon the first
incident, available to rid itself of a union adherent.
3. Employee Stevens
Howard Stevens was a truckdriver employed by the Respondent
in April 1959. He had been a member of another Teamsters local prior
to his employment and with the beginning of the Union's organiza-
tional campaign, he was called in by Plitt and questioned regarding
organizational activities of the other employees. During the inter-
view he stated, upon inquiry of Plitt, that as a union man he would
not cross a picket line. He was one of those attending the last union
meeting in January 1960.
On February 13, 1960, Stevens, who had received no inkling from
the Respondent that his services were unsatisfactory, was summarily
discharged by Plitt. When he asked for the reason for the discharge
VALLEY FEED AND SUPPLY CO., INC. 781
he was given the ambiguous reply that "You no longer fit in the job.
This has become a fast operation now." And when he inquired 2
days later in what respect he was too slow he was able to get no
satisfactory answer. When he visited a friend at Respondent's mill
he was ordered off the premises with the remark by Plitt that "We
don't want any agitator on the property."
The above facts present a classic instance of the discriminatory dis-
charge. And the failure of the Respondent to give any reasonable
explanation of the discharge strengthens this conclusion. Thus al-
though at the hearing the Respondent asserted that Stevens was dis-
charged because of his slowness in operating a truck the Respondent
made no effort to produce its records which would have supported
Plitt's otherwise wholly unsupported assertion. In fact the last previ-
ous discussion between Plitt and Stevens regarding his inefficiency
occurred in September 1959' as least 4 months before Stevens' dis-
charge. And further illustrating the extent to which the Respondent
was willing to go to justify the discharge is Plitt's partial reliance
upon a fire occurring in a truck operated by Stevens in October 1959,
3 months before the discharge.
In my opinion, therefore, there is direct evidence of the Respond-
ent's discriminatory motivation in discharging Stevens, and its failure
to support the reason given Stevens by production of its records to-
gether with its reliance upon events occurring many months before
his discharge are more than enough to sustain the allegation that the
Respondent discriminated against him because of his union activities.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
In the complaint the Respondent is charged with violations of Section 8(a)(1)
and (3) of the Act in the manner hereinafter specified.
On May 25, 26, 27, 31, and June 1, 1960, I held a hearing with respect to the
allegations of the complaint at New City, New York. After the taking of testimony
had been completed, the representative of the General Counsel presented oral ar-
gument with respect to the issues in the proceeding. Subsequent to the hearing,
counsel for the Respondent filed a brief, proposed findings of fact, and conclusions
of law, and the General Counsel's representative filed a memorandum by way
of supplement to his oral argument at the hearing.
Upon the record so made, and based upon my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE RESPONDENT
The Respondent, Valley Feed and Supply Co., Inc. (hereinafter referred to as
Valley Feed), is a New York corporation which maintains its principal office and
place of business at Union Road, Spring Valley, New York, where it has been en-
gaged for about 17 years in the manufacture, sale, and distribution of birdseed and
supplies and related products. A majority of the stock of Valley Feed is owned
by the Plitt family. George Plitt is the president of the corporation.
During its last fiscal year, the Respondent, in the course and conduct of its
business, caused to be manufactured, sold, and distributed products valued at more
than $800,000, of which products valued in excess of $400,000 were shipped by it
in interstate commerce directly to States of the United States other than the State
of New York.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE UNION
International Brotherhood of Teamsters and Chauffeurs, Warehousemen and
Helpers, Local Union No. 445 (hereinafter referred to as Local 445, or simply as the
Union), is a labor organization which has sought to organize the Respondent's
employees, who are millhands, laborers, maintenance men, and drivers.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The background
One day in the latter part of September a truckdriver, presumably making a
delivery at the Valley Feed plant, asked some of the employees working there whether
they had a union. The employees answered his question by telling him that they
did not have a union but were thinking of getting one. George Jones, one of the
employees, who acted as a strawboss on the night shift, asked the truckdriver for
his union's telephone number.
The employees took no action, however, until November 1959 when one of them,
Anthony Cooper, called Emmitt A. Lanier, a shop steward for Local 445 at Colonial
Sand and Gravel Corporation, and asked the latter to assist the employees in con-
tacting someone who could organize them. Consequently, Lanier met with a group
of the Valley Feed employees at Bruno's Diner on Jackson Street in Spring Valley.
Among these employees there were, in addition to Cooper, Robert Coons, Melvin
Petry, Everett Garrison, Jr., and Joseph Gamble. During the meeting, Lanier tele-
phoned to John H. Monell, business agent for Local 445, and informed him of the
interest of some of the Valley Feed employees in the Union. Monell told Lanier
that there would be a stewards' meeting at the Union's hall in Haverstraw, New York,
on Friday, December 4, and suggested that a meeting be held with the group of
Valley Feed employees after the conclusion of the shop stewards' meeting.
The meeting of the Valley Feed employees took place as scheduled at the union
hall in Haverstraw on December 4. Both Lanier and Monell were present at the
meeting, as well as 10 of the Valley Feed employees. The meeting lasted from
10 p.m. to 2 a.m., and there was a general discussion of conditions at Valley Feed.
The employees wanted to know what "the union could do for them," and whether
they would be protected in their jobs if they joined the Union. This led Monell to
explain to them the functions of the National Labor Relations Board. According
to Monell, Cooper acted as "the main spokesman for the group," and another one
of the employees, John Watson, "had quite a bit to say." Eight of the ten employees
present, Cooper, Watson, Gamble, Jones, Coons, Robert Holmes, Jack Sellers, and
Francis Lare, signed cards authorizing the Union to represent them. The two other
employees present, Petry and Garrison, did not sign cards at the meeting but asked
for an opportunity to think it over.
Garrison signed a union authorization card the next day in the suet room of the
plant at the solicitation of Cooper and Gamble, who turned the card over to George
Jones, while Petry signed a card the following day, which was a Sunday, at the home
of George Jones.' According to Cooper, Jones had a hard time convincing Petry
to sign the card. Cooper was also instrumental in inducing four other employees
to sign union authorization cards, namely Alonzo J. Mack and Peter Callahan,
whose signatures he secured in a corner of the mill where, he thought, the solicitation
would not be observed, and Richard Maxwell and Peter Selvaggi, whose signatures
he secured at their homes. Thus, by Sunday, December 6, 14 of the Valley Feed
employees had signed union authorization cards.
Monell assumed that if the appropriate unit for bargaining purposes were deemed
to consist of millworkers, laborers, maintenance men, and drivers, there would be
18 in the unit. As he had authorization cards signed by 14 of the Valley Feed em-
ployees, he believed that the union represented a majority of them, and he pro-
ceeded to file with the New York Regional Office a petition for certification, dated
December 8, 1959.
A few days after he had filed the petition, Monell went to Valley Feed and had
an interview with George Plitt. He informed the president of the Respondent that
14 of his employees had signed union authorization cards, and that he had filed
a petition for certification with the Board. Monell also explained to Plitt that he
could sit down and negotiate a contract with the Union, or that he could wait until
he had heard from the Board. Monell also warned Plitt to maintain the status quo,
telling the latter that he must neither fire any of the employees nor talk to them.
1 Cooper must have been mistaken in testifying that Petry was signed up in the pulley
room of the plant. Petry's card is dated Sunday, which would not be a working day.
Petry himself testified that while Jones gave him a card in the plant, he signed it at
Jones' home.
VALLEY FEED AND SUPPLY CO., INC. 783
Monell concluded by explaining to Plitt "what the law entailed" but also advised
him that "he should see his attorneys." Plitt, whom Monell described as "calm"
but "a bit disturbed," told the Union's business agent that he would see his attorneys.
In testifying about his meeting with Monell, Plitt described himself as "quite be-
wildered," for he regarded himself as a novice in dealing with a union . His contact
with Monell was Phtt's first experience with unionism "in any way, shape, or form"-
he had never been involved in a strike, lockout, picketing, or any other form of union
action-and he did not know what to do. He felt aggrieved that his employees
should have taken their problems to a union, particularly when that union was affili-
ated with the Teamsters. He sincerely considered himself and his employees to be,
in the rather hackneyed phrase, "one big family." He felt, too, that he was being
repaid badly for the many benefits which he had voluntarily accorded to his em-
ployees. The record shows, indeed, that he paid time and a half for overtime; that
he contributed part of the cost of his employees' health insurance; that employees
with sufficient service received some vacation with pay; that deserving employees
had in past years been given Christmas bonuses; and that on occasion he had even
made personal loans to employees who were in financial difficulties.2 As early as
July 1959, which was many months before the Union approached him, he had even
attended an American Management Association seminar at Colgate University, and
as a result he was planning to issue a booklet which would set forth Valley Feed's
management policies, with the ultimate purpose of liberalizing them.
After his interview with Monell, Plitt did consult the law firm of Fellner & Rovins,
and he was advised to refrain from giving bonuses that Christmas, and not to give
raises until the issue of union representation had been resolved because either form
of action might be misinterpreted as attempts to bribe his employees. Plitt also
called the Board's New York Regional Office, and received substantially the same
advice. He specifically inquired whether it was all right for him to talk to his em-
ployees about the problem of the Union, and he was informed that it would be
proper for him to do so, provided that he said nothing of a threatening nature, or
anything that could be construed as a promise of benefits.
In the meantime, the Union's representation petition was being processed in the
New York Regional Office, and shortly after Monell had his interview with Plitt, the
parties were informed of a conference to be held on December 22, 1959, in the
Rockland County courthouse. This conference was canceled, however, because a
snowstorm had produced hazardous traffic conditions . Another conference was
arranged, and it was held a week later in the New York Regional Office. There were
present at this conference Monell, Rovins, of the firm, of Fellner & Rovins, and a
Board agent by the name of Parauda. Rovins asked for an adjournment on the
ground that Plitt himself was unable to be present, and Monell agreed to the post-
ponement upon the advice of Parauda . The conference was postponed to the first
week in January 1960, but it turned out that Monell was unable to be there because
he had to attend a welfare meeting in Newburgh. He therefore called the New York
Regional Office, and spoke to one Carmody to whom he suggested that an eligibility
list of Valley Feed employees be secured , and that a consent election be arranged.
Upon inquiry it was found that this was agreeable to Plitt, and thereafter the parties
received the necessary papers . When Monell went over the eligibility list of the
Valley employees-it had been prepared on the basis of the payroll of January 7,
1960-he was surprised to find that it contained the names of 35 employees .3 Being
unable to understand why there were so many names on the list, despite the fact
that he knew that two of the Valley Feed employees , Copper and Gamble, had
already been discharged by Plitt, he called a meeting of the Valley Feed employees.
This meeting was held at the Union's hall in Haverstraw one evening in the middle
of January 1960, and, according to Monell , was attended by six or seven of the
Valley Feed employees , among whom were Cooper, Maxwell ,4 Coons, Howard
Stevens, and Harold Johnson .5 The employees present explained to Monell that
2 Among these employees was George Jones who had been heavily in debt when he first
came to work for Valley Feed . He had been helped by Plitt
S Monell so testified but actually a copy of the list , which is in evidence as General
Counsel 's Exhibit No. 5, shows that it contained the names of 34 employees.
4 Maxwell was not on the eligibility list because he had been involved in an automobile
accident on November 24, 1959, and he was not working at the time the list was prepared.
His case is discussed below in connection with the alleged discriminations with respect
to hire and tenure of employment.
5Although Monell testified that Johnson was present at the meeting, it does not appear
that he was one of the Valley Feed employees who had signed a union authorization card
Johnson was a part-time maintenance worker at Valley Feed who also was employed by
Lederle, the drug firm, and was a member of the Chemical Workers Union.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the list contained so many more names than he had expected because Valley Feed
not only had full-time regular employees but also employed part-time workers who
worked nights or Saturdays. Some of these employees attended high school during
the daytime.
After this meeting, Monell discussed the advisability of proceeding with the elec-
tion with Theodore Daley, the secretary-treasurer of Local 445, and Monell decided
to withdraw the Union's petition. As a result, the petition was dismissed under
date of January 20, 1960.
After the dismissal of the petition, Monell heard from Valley Feed employees
that more of the Union's adherents had been fired, and it was decided that a mass
meeting of the Valley Feed employees should be held at the American Legion Hall
in Spring Valley on Sunday, February 14, 1960, at 2 p.m. Although billed as a
"mass" meeting, it was attended only by about 10 of the Valley Feed employees.e
In fact, the meeting was never formally called to order. Those who were present
simply sat around discussing the employment situation and why some of the em-
ployees of Valley Feed had been fired. Monell was informed that Watson and
Stevens had been fired, in addition to Cooper and Gamble, and that the reemploy-
ment of Maxwell was uncertain.
Monell held one more meeting with some of the Valley Feed employees on or
about February 21 in the Union's office at Haverstraw. It was attended only by
Stevens, Maxwell, Cooper, Gamble, and Coons. Lanier and Daley, the secretary-
treasurer of the Union, were also present. A decision was made at this meeting to
file charges of unfair labor practices against the Respondent. The charges were
filed under date of February 23, 1960, and were served on the Respondent by
registered mail on February 24, 1960.
B. Alleged acts of interference, restraint, and coercion
The complaint, based upon the charges, runs almost the whole gamut of the most
typical acts of interference, restraint, and coercion.? Thus it charges the Re-
spondent, which is to say either George Plitt, his wife, or two of his alleged super-
visory employees, George Jones and Jerome ("Jerry") Morgan, with interrogation
of employees with respect to their union activities; with threats to shut down the
plant, and loss of overtime and wage increases if the employees became or remained
members of the Union; with promises of wage increases, vacation, and other benefits
if the employees refrained from becoming or remaining members of the Union; with
withholding a Christmas bonus uniformly granted in past years, and the deferment
of a pay raise to employee Everett Garrison, Jr.; with surveillance of the meeting
places of the Union; with attempts to induce withdrawals from or abandonment of
union membership; with grants of wage increases, vacations, and other benefits to
induce employees not to join the Union; and finally with an attempt by the president
of the Respondent to deprive employees of a meeting place.
The evidence offered in support of these allegations of the complaint shows that
the views of Plitt with respect to the Union were made known to the employees pri-
marily at the first of a series of meetings in the plant which took place in the break
room where the employees went for coffee breaks and lunch. The testimony of
the witnesses was, however, so vague with respect to the dates when the break room
meetings occurred that these dates can only be approximated, and the testimony of
the witnesses was also hazy with respect to the number and sequence of the break
room meetings, as well as with respect to what was said at any particular meeting.
The first of the break room meetings was probably held in the plant about 2 p.m.,
shortly after Plitt had been informed of the Union's petition for certification. The
meeting was attended by a majority of the regular employees who were paid for the
time they spent in attending the meeting. With respect to the substance of what he
said to the employees at this meeting, Plitt testified on direct examination as follows:
It was a general discussion in which I expressed my feelings, that naturally it
was a shock to me that this thing came into being, but I felt that I had always
been their confidant and they had always come to me with problems of [sic]
other matters, and if there was any difference of opinion or any grievance, if they
would have come to me and if I couldn't straighten it out, they were free to go
to whatever union they desired, if they felt they could accomplish what they
6 This figure is based on the testimony of Monell but he could enumerate only six of
the employees, namely Maxwell, Stevens , Cooper, Gamble, Coons, and Johnson.
7 Paragraph 11 of the complaint was amended prior to the hearing, and paragraph 10 of
the complaint was amended at the hearing.
VALLEY FEED AND SUPPLY CO., INC. 785
were after and desired to accomplish and I didn't agree to it. I guess that was
pretty much what our general discussion was.
Plitt did not think very highly of the Teamsters, and it is conceded that he had the
Teamsters in mind when on cross-examination he further testified that he had also
said during this break room meeting:
Gentlemen, if you were purchasing a car, you wouldn't go to the first show-
room and purchase an automobile that you would see there. You would look
around.
He also elucidated this remark as follows:
I felt in my opinion, speaking as an employer at Valley Feed, that they should
perhaps-if after all else had failed, if I did not assist them with their diffi-
culties, if they decided to pick a union, it would have been a,sound judgment
to contact several unions and find out which would be the one that would fit
into their thinking and offer them the greatest return and efforts and everything
else involved.,
There was a second meeting in the break room which occurred apparently in the
week before Christmas about 4 o'clock in the afternoon. The employees were
summoned to this meeting by Jerry Morgan, and Plitt's purpose in calling it seems
to have been to explain why he had had to discharge two of the employees, Anthony
Cooper and Joseph Gamble.8 This meeting developed into a sort of Socratic dialogue
between Plitt and John Watson, the most outspoken of the employees who was sup-
porting the Union, and who had been reprimanded by Plitt for'soliciting on behalf of
the Union on company time. According to Watson, the exchange between them
was about as follows: 9
PLrrr: I suppose you all heard by, now that I had to let Tony and Joe go.
I don't care what you might believe, or what you might hear after this, but this
is what happened. I repeatedly warned Joe and Tony about being absent. I
warned them -before Thanksgiving. I warned them again and again and again,
until now I had no alternative but to discharge them, and this grieves me very
much, that I,had to let them go.
WATSON: Just like you said, Mr. Plitt, you had warned these fellows, repeatedly
about being absent. - How come you never fired them, before, only now when
the union business is up for discussion and you know they are pro union?
FLrrr: You can't run a plant. In fact there is no question. You can't run
a plant with men that are inconsistent. . If a man doesn't notify us prior to
being absent, we discharge him. . . . I have a plant that works all year round.
No matter how slow it is, we invent work for men to do, because we realize
they have a family. . Take, for instance, George Jones. George Jones was
working at the Ford plant, making a nice salary, and he stayed in debt. In fact,
he lived way beyond his means.
WATSON: Well, Mr. Plitt, I think the whole thing is a matter of dollars and
cents.
PLITT: No, it is a matter of security, because I offer a job to a man a year
round.
WATSON: If a man is secure on the job for $1.35, won't he be more secure on
the job at $1.75?
PLrrr: I was not put on this earth to support you.
WATSON: We weren't born to support you either.1°
Although Watson could not remember anything else that was said at this meeting,
he recalled a further remark of Plitt's when he was shown a statement which he had
given to a Board agent. According to Watson, Plitt remarked that "if the union
came in , there would be no more overtime." Watson's comment on this remark
was as follows:
That didn't ring a bell with me. I said to him, "You wouldn't stop a truck from
coming in at 4:30 just to stop the union and hurt your men because you would
e Cooper was discharged on December 15, and Gamble on December 16, and hence the
meeting must have been held shortly ,after December 16.
Some rather obscure passages , which in any event do not seem particularly germane,
are being omitted.
15 To this report of the exchange, Watson added the observation:, "At that point I saw
we were a little antagonistic toward one another , and I J ust didn 't say any more That
was the second meeting."
634449-62-vol . 135-51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be losing money," or words to that effect. He never replied to that. About
the union, he just said, "We are too'much of a family." He was very stuck on
the theme about us being a family, a low-paid family.
Apart from a Christmas party in the break room at ;which each employee was
given a bottle of perfume, and at which Plitt explained that no bonuses would be
given that year because of the union situation, there appears to have been one more
meeting in the break room in January 1960 at which Plitt informed the employees
that the Union had backed out of the election.ii
Melvin Petry, who is not among the alleged discriminatees-he is still employed
by the Respondent-and who was called as a witness on behalf of the General
Counsel, also testified with respect to various statements that he thought Plitt made
at one or another of the break room meetings. Petry testified that Plitt "mentioned
to us that it was a surprise to him that we signed up for the union, and it didn't
matter to him, that we could use our own judgment. If we wanted the union or
we didn't." Petry also testified that at another break room meeting-it was the one
at which Plitt and Watson went at each other-Plitt "was talking about if we joined
the union or we didn't join the union, he said he wouldn't threaten nobody in any
way or he wouldn't fire anybody"; and that if the employees "had any questions we
could speak to him." Petry also referred to a meeting at which Plitt had explained
that there would not be any bonuses that Christmas "on account of the union."
His recollection of Plitt's statements having been exhausted, Petry was shown an
affidavit he had made on March 22, 1960, in which he had deposed that at one of
the break room meetings-it was probably the second-Plitt had also "mentioned to
the workers who were present.including myself, that he'knew the names of the men
who had been at a union meeting, that there were a few names and not too many."
This affidavit, which had been prepared for Petry's signature, also contained state-
ments which were eliminated at his request as incorrect. -After he had signed the
affidavit, he had shown it to Plitt; who had read it, and thanked Petry for the con-
fidence which he had placed in him by showing it to him.12
There were also a number of occasions when either Jerry Morgan or George
Jones spoke about the Union to various employees who happened to be in the break
room. Thus, Watson testified that on the morning of the, day that Plitt called the
second break room meeting, some of the employees were "talking informally
about unions," and Jerry Morgan' remarked that "he spoke to doctors, lawyers, gas
attendants, and people in general about unions, particularly the Teamsters, and they
didn't like them at all. They didn't like the unions at all because it looked like
animosity existed between most unions and the people that worked." Again, Cooper
testified that one day 13 Jerry Morgan, who was sitting in the break room, looking
very gloomy, remarked after awhile: "I hear we have a union in here." When no
one would comment on this remark, Morgan went on to say that "he knew people
that were in the union and that they are nothing but a bunch of crooks. So he said
George would do everything in his power to keep the union out." Gamble must
have been referring to this same occasion when he testified that one day in the
break room Jerry Morgan "came out with a statement" that "Mr. Plitt would do
anything to keep the union out of the shop."
George Jones seems also to have been involved in several conversations in the
break room. Everett Garrison, Jr., one of the high school students who worked
nights and Saturdays during the school year, testified that in the latter part of
December, when about half the employees were in the break room, Jones remarked
that he had been called in two or three times by Plitt who talked to him about the
Union but when they asked Jones what Plitt had said, he could not hear what Jones
said because "the fellows started roughing around, joking and laughing." Garrison
also testified that 3 or 4 days later Jones waited until after Jerry Morgan had left
11 Gamble testified that on a Friday, December 11, Plitt came into the break room about
2 o'clock in the afternoon , sat down , and made some remark to the six or seven employees
who were present to the effect that they ought to think twice before joining the Union
because he was working on some plan . It is apparent that if Plitt ever made this remark,
which I doubt , it was not at a called meeting.
12 The record shows that Petry, although he had signed a union authorization card,
had never attended a union meeting . Subsequent to February 1960 , he received three
$5 bonuses. When asked why he had received these bonuses, he 'testified that he took
the reason to be that he got to work on time and was steady during the month.
13 Cooper testified that this was a day in November or December This is a good ex-
ample of the haziness of'the witnesses about the time of the occurrence of events or con-
versations . Obviously, this particular conversation could not possibly have occurred' in
November. - ` -
VALLEY FEED AND SUPPLY CO., INC. 787
the break room, and then started arguing with the employees about the Union.
Jones argued that if they brought a union in , they would lose their overtime and
that they would not make as much money. Melvin Petry pointed out to Jones, how-
ever, that the Union would bring in better wages, and that this would make up for
the overtime that they would lose. Petry also remarked that they would not be
working in the cold if the Union came in.14 After that, Jones and Petry got down
to arguing about facts and figures, and Garrison left.
George Jones is also charged by Watson with an attempt to launch an antiunion
petition while the employees were in the break room one night a little before
Christmas. According to Watson, Jones said: "This is off the record. Nobody
knows about this in the front office. If you fellows will oppose the union, sign a
paper that you oppose the union before Christmas, you will get a Christmas bonus.
Mr. Plitt wouldn't know about this at all. His lawyer would take this and put it in
his safe." [Emphasis supplied.] Watson's further testimony with respect to this
was as follows:
Q. Did anybody say anything to that comment?
A. Bob Coons said, "How is it possible for his lawyer to know and Mr. Plitt
not to know?"
Q. What did he say?
A. George was a little flustered. He didn't say anything.
Q. Did anybody say they would sign?
A. No.
Q. Did you see any paper?
A. No, I didn't see any paper.
The evidence seems to indicate that George Jones, who was originally one of the
leaders in the union drive, subsequently became inactive. In addition to Garrison's
testimony that Jones had been called in several times by Plitt and talked to about
the Union, there is testimony by Cooper that on the day of his discharge, which
was December 15, he saw Jones standing in the doorway of the break room as he
was on his way to see Plitt, and that Jones remarked to him: "You guys can go
ahead with the union," but that he had "washed his hands of everything ," since
Plitt could not afford the Union. Cooper further testified that when he kept on ask-
ing Jones "why he backed out so quick," and did not receive any satisfactory answer,
he went and spoke to Watson, who declared that "that Friday afternoon they brain-
washed George."
There is also testimony that George Plitt had conversations about the Union with
individual employees at various times during the month of December. These em-
ployees, most of whom are alleged discriminatees, testified with respect to conversa-
tions which occurred in Plitt's office when they came in for one purpose or another.
Not all of these conversations were started, however, by Plitt. Whenever the subject
of the Union was brought up, Plitt certainly was not loathe to express himself on
the subject.
Thus. Watson testified that once on a Friday, which must have been December 18,
when he, being ill at the time, came in to pick up his check so that he could 'go and see
his doctor, Plitt solicitously inquired about his health, and in the course of the con-
versation asked him whether he had heard about the union meeting , and when Watson
said that he had heard about it, Plitt started on his favorite one,big-family theme, and
dwelt again upon how he had helped his'employees ., He mentioned not only the help
he had given to George Jones in getting him out of debt but also the help he had
once given Joe Gamble who was in a scrape with the police in connection with a car.
Similarly, Howard Stevens, one of Valley Feed's truckdrivers, who had been a
member of the Teamsters when he was hired by Plitt, testified with respect to a con-
versation that he had with Plitt when he checked into 'the office after a long trip.
According to Stevens, Plitt asked Stevens whether he had heard "anything about the
fellows joining the union," and when Stevens replied' that he had heard about the
Union only that morning, Plitt asked him what there was to gain .by having a union,
and declared that "he .would cut the overtime out if the union were to come in."
According to Stevens , Plitt then asked him whether he was a Member of the Union,
although he knew that, when he had hired him : If Stevens is to be believed, Plitt's
question must have been rhetorical, intended to afford him an opportunity to denounce
the Teamsters as "a bunch of crooks and thieves." According to Stevens , Plitt then
showed him a clipping about a Teamsters local that , apparently, had something to do
14 In his testimony Plitt explained that, while there were heating facilities in the mill
at particular locations, the mill as a whole could not be heated because the grains stored
there.would spoil. p _
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with picketing, and proceeded to ask him whether he would cross a picket line
if the Union came in . Stevens says that he replied that as a unionman, he would not
cross a picket line.
Everett Garrison, Jr., also testified with respect to a number of conversations which
he had with Plitt both before and after Christmas 1959. Garrison testified that in the
first conversation which took place at night in the suet room about a week before
Christmas, Plitt asked him whether he had heard anything about the Union, and
that he had replied in the negative. Garrison testified that on the next occasion,
which was right after Christmas, it was he, himself, who went to see Plitt to ask
him whether he had heard anything more about the Union, and when Plitt said
that he had, and he asked him what union it was, Plitt said that it was the Teamsters,
"the worst of the lot." Garrison finally testified that he had two conversations with
Plitt in the month of January 1960. He testified that in one of these conversations
Plitt told him that he wanted to give him a raise but that he would have to wait "until
the union business was over," and that in the other of these conversations when they
started talking about the Union again Plitt told him that "he had hired a lawyer to
try and defeat the union and that it would cost more than all the bonuses put to-
gether"; and that when he asked Plitt who was responsible for bringing the Union in,
Plitt had said that "the union had sent a representative to get a job in the mull and
then bring the union in, and then under his breath he said Watson, and then he
changed the subject quick." Asked to what Plitt had changed the subject, Garrison
replied: "He went back to the suet production." With respect to Plitt's promise of a
raise, Garrison was cross-examined as follows:
Q. Did he ever tell you that if you didn't join a union that you would benefit
by Mr. Plitt giving you some gain or reward?
A. More or less.
Q. What did he say and when did he say it?
A. When he promised me the raise after the union business was over.
Nevertheless, Garrison testified during this same cross-examination that he did not
think that Plitt knew that "I had anything to do with the union."
Robert Coons, another one of the night-and-Saturday high school students, who had
joined the Union but still works for Valley Feed, also testified that he once had a
conversation with Plitt when he went to pick up his paycheck. According to Coons,
Plitt wanted to know on this occasion how he felt about the Union, and he told him
"we should have thought it over and chosen a better union." When Plitt also asked
what the men thought about the Union, and Coons had replied that "they seemed to
be for it," Plitt observed that he had talked to most of the men, and "they seemed to
be against it." Coons also testified with respect to conversations that he had had with
Jerry Morgan. They lived close together in Nanuet, New York, which is in the Spring
Valley area, and they discussed the Union while they were driving to work together.
On one of these occasions , Coons remarked that the Teamsters was affiliated with
gangsters and had had a lot of bad publicity. Jerry Morgan expressed agreement
with ,Coons' views.
There are also .a number of conversations pr incidents in which Plitt was involved
with others than this own employee.
The earliest of these must have, occurred sometime between December 4 when
many of ,the Valley Feed employees joined the Union and December 15 when An-
thony Cooper was discharged by Plitt. For at least 16 years, Plitt had been on
friendly teams with it Mrs . -Estelle Davidson and her husband Stanley Davidson, an
electrician, who on occasion had done some electrical work for him. Tony Cooper
through her interces-,and Joseph Gamble are nephews of Mrs.-Davidson, and it was
sion that Plitt had given a job to Gatjble. Cooper and Gamble shared an apartment
in the same house wlXere,the I avidsons lived. One day, after Plitt had become aware
of the Union's activities in the pint, he telephoned to Mrs. Davidson and ,asked her
to meet him at the Spring Valley post ,office. Mrs. Davidson, who was called as
witness on -behalf of the General Counsel, testified that when they met at the post
office Plitt asked her if she had heard ,the boys (meaning Cooper and Gamble) com-
plaining about their working conditions . When she replied in the negative, Plitt re-
marked: "I heard talk about the uniot," and asked her: "Have you hear,d,theboys
talking about a union?" Mrs: Davidson answered : "No, I haven't," and Plitt then
said: "Well, if they had any complaints, I wish they had come to me about them, and
we could have settled it . . . I heard that they are going to join the Teamsters'
Union, or have something to do with the Teamsters' Union." When Mrs. Davidson
declared that she had not heard "anything about it," Plitt said : "I wish you could talk
to the boys for me." Mrs. Davidson was then ,asked: "is that all you recollect was
said at that time?" and she answered: "That's right." At this point,, however, in
order to refresh her recollection, she was shown a statement she had made to a Board
VALLEY FEED AND SUPPLY CO., INC. 789
agent in which she had declared that Plitt also remarked : "I don't mind the boys
joining the union, but why would it be a Teamsters Union?" and also: "Before this
happened , if this happened , I might have to close the place , the business."
Mrs. Davidson further testified that when the boys came home that night she asked
them : "What's this about joining the union?" Cooper asked : "Who told you that?"
Mrs. Davidson replied : "I was talking to Mr. Plitt about it." But Cooper denied that
he knew anything about it . When she was cross-examined , Mrs. Davidson testified as
follows:
Q. When he asked you to talk to the boys , what did he ask you to say to the
boys?
A. He did not ask me to say anything.
Q. He didn 't ask you to say anything to the boys?
A. No, nothing.
Cooper testified, however , than when his aunt spoke to him about her conversation
with Plitt, she stated that Plitt had told her "he would have to close down if they
came in."
Lanier , one of the Union 's shop stewards who was helping Monell in attempting to
organize the Valley Feed employees , also testified with respect to difficulties which he
experienced when on two occasions he attempted with the assistance of another union-
man to distribute circulars to the Valley Feed employees announcing the union meet-
ing of February 14 , 1960. He made the first attempt about 10 o 'clock at night on
Wednesday , February 10, .but he was asked to leave by a policeman who told him that
it would be better if he passed out the circulars in the daytime. He made a second
attempt at about 4 : 20 p.m . on Friday , February 12, because he knew that it was pay-
day, and that the employees would then be leaving the plant . This time he was
stopped by Plitt, who was informed of the distribution of the circulars by one of the
Valley Feed employees as he was handing out the paychecks. Plitt dashed out and
told Lanier to get off his property . Lanier testified that Plitt "was excited but he was
nice." Plitt testified that he said to Lanier: "Look. You have every right to dis-
tribute what you want to distribute but not on my property. On public property you
can do what you please ." It seems also that Mrs . Plitt , who is vice president of Valley
Feed , also came out and joined in the fray . Lanier described her as "a middle-aged
nice-looking lady with glasses on" who kept on hollering : "The cops are coming, the
cops are coming . You are nothing but a bunch of hoodlums. Get away from here."
Having thus apparently obtained knowledge of the impending union meeting, Plitt
telephoned to Benjamin Weiner, a Spring Valley upholsterer, who at this time was
housing chairman for the American Legion , and, in the words of Weiner , "expressed
surprise that our organization would let an organization of that character use the
building." Weiner told Plitt that "there was nothing that he could do about it," and
when Plitt "protested further," Weiner told him that he could call the commander of
the American Legion . Plitt said that he would do so but it seems that instead he
called one Milewski , who until then had been the housing chairman . When Weiner
went the next day to see Lanier in order to collect the "donation" for the use of
the American Legion building, Weiner remarked jokingly that "there was an objec-
tion to him using the building ." Lanier asked who had raised the objection, and'
Weiner told him that it had been Plitt.
During the period preceding the dismissal of the Union 's petition for certification,
Plitt had not only refrained from giving any Christmas bonuses but also from giving
any raises to the employees of Valley Feed . He had adopted this policy as a result of
the legal advice which he had received . Once the Union's petition for certification
had been dismissed , pay raises were resumed . During the pay period ending Janu-
ary 23 , 1960 , six employees received pay raises as follows:
Robert Coons from $ 1.35 an hour to $1.45 an hour.
Kenneth Duerr from $1 . 65 an hour to $1.90 an hour.
David Heffi from $1 .20 an hour to $1.35 an hour.
Everett Garrison from $1 .00 an hour to $1.10 an hour.
Peter Callahan from $1.35 an hour to $1.45 an hour.
Francis Lare from $1.35 an hour to $1.45 an hour.
Once the Union's petition for certification had been dismissed, Plitt also issued'
the booklet on management policies which he had been planning prior to the com-
mencement of the Union' s organizing campaign . The booklet was issued on or
about February 5, 1960, under the following title:
WELCOME TO VALLEY FEED
AND SUPPLY CO., INC.
YOU AND YOUR JOB
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to stating Valley Feed's management policies, the booklet contained
for the first time a statement in collective form of the rules and regulations with
which employees of the company were expected to comply.
The first two of the three witnesses called by the Respondent in support of its
case were George Jones and Jerry Morgan, but they were called only to testify
with respect to the nature of their duties and they did not, therefore, deny any of
the statements or activities attributed to them by various of the witnesses, except that
Morgan denied that he had ever spoken to the men about the Umon.15
Plitt, who was the principal witness for the Respondent, in effect denied, however,
all the testimony with respect to his statements or activities from which implications
of the commission of unfair labor practices might be drawn. He denied in general
terms that he had ever expressed any threats of reprisals or threatened to resort to
the use of force, or promised any benefits, in the event that any of his employees
joined the Union, or that he had ever interfered with, restrained, or coerced his
employees in .the matter of their union affiliation. He also denied that he had
threatened any employees with discharge because of union affiliation at any time
during the progress of the union organizing campaign; or that he had ever threatened
to shut down the plant; or that he had ever threatened his employees with loss of
overtime or loss of wage increases; or that he had ever promised or granted to any
of his employees wage increases, vacation benefits, group insurance benefits, or
other benefits, in order to induce them not to become or remain members of the
Union; or that he ever kept under surveillance members of the Union; or that he
ever kept under surveillance meetings and activities of the employees and of the
Union; or that he had ever attempted to deprive his employees of a meeting place
in connection with their concerted activities. He also specifically denied that he
knew that some of his employees had attended union meetings; that he had ever
discussed overtime at any of the break room meetings; or that he ever discriminated
in the awarding of Christmas bonuses on the basis of union membership.
Plitt admitted, however, that he had spoken to Mrs. Davidson in the Spring
Valley Post Office but he was not cross-examined with reference to what he had said
on this occasion. Plitt also admitted that he had called Weiner with respect to the
Union's use of the American Legion Hall but denied that he had called to protest.
Plitt also admitted that Mrs. Plitt had called the police in connection with the
distribution of the circulars for the American Legion meeting but he insisted that he
did not tell her to call the ]police, which she had done entirely on her own, and
that her only purpose in calling the police was to get Lanier and his companion to
leave the company property.
I credit all of Plitt's explicit denials, and also his general denials, except that
some of these must be regarded as affected by a semantic bias in his own favor,
particularly in the use of such words as "protest," and "knowledge." When he denied
knowledge of something, he revealed sometimes that he had a rather absolute con-
ception of knowledge. Apart from such semantic considerations, I believe that
he was conscientiously trying to tell the truth to the best of his ability. He was
subjected to a long and persistent cross-examination but his testimony was never
shaken in any important respect. Where the testimony of other witnesses is in
direct conflict with his own, I must accept his version of the particular conversa-
tion or incident involved. These other witnesses, most of whom are the alleged dis-
criminatees, do not seem to me to have any high degree of trustworthiness, as will be
made apparent in the subsequent discussion of their cases. In testifying, they
demonstrated either that they were sophisticated enough not to have too strict a
regard for the truth when their interest or convenience would be served by prevari-
cation, or that they possessed other defects of character that cast doubt upon their
veracity. As for those witnesses who were alleged discriminatees, either their
recollection appears sometimes to have been faulty, or they sometimes obviously
misunderstood what Plitt had said to them.
I do not find in the case of Plitt the mens rea that betrays the determined and
heedless violator of the prohibitions of the Act. He did not strike me as the sort
of man who would carry his opposition to the union to the point of flaunting all
legal restraints. In general, I believe that he attempted to abide by the legal advice
which he had sought and received, and if in some instances he engaged in conduct
which be might better have avoided, I believe that he did so in ignorance rather
than defiance of legal prohibitions, because the advice which he had received was
not specific enough. In any event, I am not convinced that he was engaged in a
concerted campaign to undermine or destroy the Union at all costs.
15 The attorney for the General Counsel chose not to make Jones and Morgan his own
witnesses.
VALLEY FEED AND SUPPLY CO., INC . 791
Plitt's attitude toward the union campaign was expressed primarily at the first
break room meeting. In his remarks at this meeting, I do not believe that he
exceeded the bounds of the privilege of free, speech recognized in Section 8(c) of
the Act. Although he made it clear that the advent of the Union was a cause of
sorrow to him, I do not believe that what he said contained any "threat of reprisal
or force or promise of benefits." I suppose that Plitt's reference to the adjust-
ment of grievances in the past carries some aura of the possibility of future benefits,
and could conceivably be tortured into a veiled offer to confer them. But I do
not believe that this was the natural import of Plitt's remarks. Properly construed,
I think that they were merely an expression of a preference for individual as
opposed to collective bargaining, and of the expression of a wish that his employees
be not overhasty in selecting the Teamsters Union if they should prefer collective
bargaining.
As for the second break room meeting at which Plitt and Watson clashed, its
primary purpose appears to have been informational-to explain to the employees
why Cooper and Gamble had been discharged. I do not credit the testimony of
Watson that at this meeting Plitt threatened to do away with overtime. It is explicitly
denied by Plitt, and I do not regard Watson as a trustworthy- witness. It is not
without significance that Watson could not even remember any such threat until
after his recollection had been refreshed. It is apparent that the last break room
meeting at which Plitt informed the employees that the union had'backed out of
the election was also informational, although it can hardly be doubted that this
information was imparted to the employees by Plitt with some satisfaction.
In Plitt's conversations with individual employees, I can also find no substantial
evidence that these were "interrogations" violative of the Act. If interrogation
per se is not prohibited, the conversations do not appear to me to have been coer-
cive in the circumstances of the present case . Plitt did not have very many regular
full-time employees, and he was undoubtedly on friendly terms.with most of them.
When the Union appeared on the scene, it was only natural that he should speak to
some of his employees from time to time about the subject There is no convincing
evidence that Plitt's conversations with his employees were part of any systematic
plan to question the employees about the Union in order to deter them from
further support of it. Indeed, some of the alleged "interrogations" were merely
perfunctory and casual exchanges of remarks which could better be described as
chit-chat. In all, there seem to have been only four employees involved in the
alleged interrogations-Watson, Stevens, Coons, and Garrison. Moreover, some
of these conversations were not only initiated by the employees rather than by Plitt,
but also took place under circumstances that plainly indicate that the occasions for
them were not created by Plitt, and several of them may have occurred even after
the Union had already withdrawn from the election . 16 Whatever Plitt said after this
could hardly have been intended to be threatening. ' He no longer had any good
reason to fear the Union . As for the substance of the conversations, Plitt appears
to have dwelt for the most part on the same themes as in -the break room meetings-
the one-big-family idea, his own goodness to his employees , and the villainy of the
Teamsters.
Insofar as in the conversations there were also involved other subjects, which
Plitt as an employer might find particularly interesting, such as the strength of the
Union and the attitudes of his employees toward unions in general and Local 445
in particular, I doubt that he made all the remarks attributed to him, or if he did
that they were coercive under the circumstances under which they were made.
When , for instance , Plitt after Monell's visit asked Stevens , whom he knew to be a
unionman at the time he hired him, and who was one of his truckdrivers, whether
he would cross a picket line, he was not attempting to intimidate him but to deter-
mine whether he could safely schedule deliveries.
To be sure, Coons' testimony that in his conversation with him, Plitt had remarked
that he had talked to "most" of the men about the Union would, if accurately re-
ported, indicate that the conversations were not limited to four employees. But if
Plitt was going around talking to practically everybody about the Union, it is strange
that these other employees were not put on the stand to testify about these conversa-
tions. Paradoxically enough , Plitt is represented by some of the witnesses in this
case as having both an encyclopaedic knowledge of the Union's activities and the
union affiliation of his employees, and as suffering from an abysmal ignorance on
these same subjects.
1e The conversation with Coons in particular must have occurred late, for it appears to
be in the nature of a post mortem . The same may be true of the conversation with Stevens,
and of one of the conversations with Garrison in January 1960.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This paradox is most glaringly manifest in the case of Garrison whose testimony
is particularly difficult to credit. Only a Machiavellian motive could have led Plitt
to ask Garrison a week before Christmas whether he had heard anything about the
Union. By this time certainly Plitt had heard a good deal about the Union-directly
from the union representatives. Again, why should Garrison, who was a member
of the Union, ask Plitt for news of unioh developments? Garrison struck me as a
youth who had a rather lurid imagination, and an infinite capacity for misunder-
standing, particularly in relation to the withholding of the pay raises, and the
Christmas bonuses, and Plitt's employment of a lawyer. The same misapprehensions
seem also to have affected some of the other employees. The evidence can hardly
be said to support the allegation of the complaint that Plitt deferred giving Garrison
a pay raise because of his union activity when Garrison himself testified that he did
not think that Plitt knew that he had anything to do with the Union.
The conversations in which Jones and Morgan were involved have even less sig-
nificance than those in which Plitt himself participated. While Jerry Morgan was
undoubtedly a supervisory employee,17 George Jones would not seem to fall in the
same category.is Actually, however, I do not regard the question of the supervisory
status of either Morgan or Jones as very important. In general, pretty much the
same can be said about their remarks that has already been said about Plitt's. With
two possible exceptions, they were occasional gripes about unions in general and the
Teamsters in particular. It would be hardly reasonable to expect that when Coons
and Morgan drove to work together, they could refrain from discussing the Union.
Obviously, the conversation between Jones and Petry on this occasion was simply an
argument on the merits of unionism. The possible exceptions are the statements
attributed to Morgan concerning Plitt's determination to keep the Union out of his
shop, and Jones' alleged proposal of an antiunion withdrawal petition. The state-
ments could be regarded as menacing if, fairly construed, they were equivalent to an
announcement by Morgan on Plitt's behalf that the latter would not stop at anything,
whether legal or illegal, to prevent the Union from gaining a foothold in his plant.
But Cooper's and Gamble's versions of Morgan's statement are not the same. If the
correct version is Cooper's-and neither Cooper's nor Gamble's version may be the
precise words of Morgan-then Morgan's statement must be regarded as ambiguous,
and hence susceptible to the interpretation that he merely said that Plitt would do
anything which could legitimately be done to defeat the Union. As for the antiunion
petition, the proposal in the form attributed to Jones is so nonsensical that it is diffi-
cult to believe in its reality. The supposed petition could not be produced at the
hearing,,and it appears to be as mythical as the Protocols of the Elders of Zion. If it
ever had any existence, it was only in the mind of Jones.
The case of Jones appears to be the only one with reference to which the record
can be said to contain any evidence at all that Plitt attempted to induce withdrawals
from union membership. Actually, there is no conclusive evidence that Jones has
withdrawn his authorization to the Union to represent him; there is evidence only
that along about the middle of December 1959, Jones ceased to be active in union
activities. That Plitt was not only responsible for bringing about this change but also
brought it about by coercive means cannot be said to be satisfactorily established by
the evidence. The mere fact that Plitt may have talked to Jones two or three times
about the Union is not sufficient evidence of coercion in the absence of evidence
concerning the substance of the conversations, and the circumstances under which
they took place. Cooper's testimony that Watson told him that Jones had been
brainwashed "that Friday afternoon" 19 must be regarded as a piece of enigmatic
hearsay 2° Watson did not even purport to say who did the alleged brainwashing,
or who told him that it had been done. For all that appears to the contrary, the
brainwashing may have been done by some of Jones' fellow employees.
17 Nevertheless, Morgan was not in the top management hierarchy of Valley Feed. Plitt
employed a general manager by the name of Eugene Prato Prato was incapacitated by
a heart attack at the time of the Union's organizing campaign Mrs Plitt would take
Prato's place whenever Plitt had to be out of town
is While Jones did assign employees to tasks, he did so only pursuant to written in-
structions, and it is doubtful, therefore, that he had authority "responsibly to direct
them," as provided in Section 2(11) of the Act. 'It seems to me, moreover, that the best
test of his status is the attitude of his fellow employees toward him. They regarded him
as one of themselves Indeed, he was one of their principal allies in the early phase of
the union drive
19 The reference to "that Friday afternoon" is itself puzzling The day that Cooper
was discharged-December 15-was not a Friday but a Tuesday.
11 No motion was made to strike this testimony.
VALLEY FEED AND SUPPLY CO., INC. 793
The evidence is even more meager insofar as the allegations of surveillance are
concerned. Plitt undoubtedly knew of the union activities of at least some of his
employees. It is manifest alone from his reprimand of Watson for- soliciting for the
Union on company time, and it is possible that he may have observed such activity
on the part of other employees, or that some employees • volunteered information
with respect to union activities. However, the mere opportunity to observe does not
amount to surveillance, nor does the observation of what one cannot help but see.
Accepting for the sake of argument Petry's statement that Plitt had remarked in
one of the break room meetings that he knew the names of the men who had been at
a union meeting presumably the meeting of December 4-and that those who
attended the meeting were "few," 21 the making of this remark would not necessarily
establish the practice-of surveillance. It would establish only that Plitt was seeking
by his remark to create the impression that he had the Union's meetings under sur-
veillance. Such remarks have been held, to be sure,, to be intimidating under certain
circumstances 22 but the record in, the present case fails to-,show how Plitt came to
make the remark attributed to him. ,
As far as sundry other acts charged to the Respondent are concerned, it was not
unlawful for Plitt to prohibit Watson from soliciting union membership during work-
ing hours; 23 or for Mrs. Plitt to prevent the nonemployee organizers from gaining
access to the property of Valley Feed for the purpose of distributing union handbills
there,24 especially since it is not shown that the employees could not have been
reached off the property; or for Plitt to maintain the status quo in respect to wage
increases or other benefits pending the outcome of the election,25 especially since it is
not established by the record that wage increases were regularly or periodically
granted. When the wage increases were resumed during the pay period ending
January 23, 1960, they were given to the employees irrespective of their union affilia-
tion. In fact, four of the six employees who -received wage increases at that time
were affiliated with the Union. - ,
The record does not establish that Christmas bonuses had regularly been granted
to all employees in previous years. While almost all employees received Christmas
bonuses in 1958, the giving of the bonuses in one year did not ipso facto entitle the
employees to Christmas bonuses the following year. A definite policy can hardly
be said to be established by the action taken in one year. In any event, the amount
of the bonuses always varied, and if they had been given in 1959 during the pendency
of the election, there might well have been charges that the amounts of the
bonuses were influenced by the union affiliation of the employees.
I am of the opinion, however, that the incidents involving Mrs. Davidson, the
aunt of Cooper and Gamble, and Benjamin Weiner, the American Legion housing
chairman, represented acts of interference on the part of Plitt. -
I do not credit Cooper's testimony that his- aunt, in telling' him and Gamble
about her conversation with Plitt, mentioned that Plitt had told her that he would
have to close down the plant, for this is contrary to Mrs. Davidson's own testimony.
Nevertheless, Plitt did ask Mrs. Davidson to talk to Cooper and Gamble about their
21 Despite the fact that since his first flirtation with the' Union Petry seems to have
become increasingly friendly toward Plitt, the circumstances of the preparation of his
statement seem to suggest that he was rather uncertain about what he was willing to
testify to Moreover, since at least 10 of his employees had attended the union meeting
of December 4, and he did not have a great many regular full-time employees, Plitt would
hardly have said that they were "few" if he really knew how many had attended the
meeting
22 See, for Instance, Knickerbocker Plastic Co ., Inc, 96 NLRB 586; F W Woolworth
Co., 101 NLRB 1457; Kitty Clover, Inc, 103 NLRB 1665; Roscoe Wagner d/b/a Wagner
Transportation Company,' 110 NLRB 1179; 'News Printing Co.. Inc, 110 NLRB 1265,
Idaho Egg Producers, 111 NLRB 93; Delta Finishing Co., 111 NLRB 659; Aerosonic
Instrument Corp, 116 NLRB 1502 ; H. L. Green Company, Incorporated (Store ##15),
118 NLRB 1459 ; Waynlane, Inc, 119 NLRB 1698. But see R. J. Oil & Refining Co., Inc.,
108 NLRB 641, and John S Barnes Corporation v. NLRB , 190 F. 2d 127 (C A. 7). '
23 See Carolina -Mirror Corporation, 123 NLRB 1712, and N.L R B v Empire Manu-
facturing Corp., 260 F. 2d 528 (CA. 4). - '
24 See N L R.B. v. The Babdock & Wilcox Company, 351 US 105; Casa Grande Cotton
Oil Mill, 110 NLRB 1834. In any event; it should be noted that the prevention of dis-
tribution of the union circulars is not alleged as an independent violation in the com-
plaint It was merely offered as evidence of hostility toward the union.
as See Standard Coil Products, Inc, 99 NLRB 899; The Lux Clock Manufacturing
Company, Inc, 113 NLRB 1194 , 1201 ; and Bonwit Teller, Inc, 96 'NLRB 608, enforcement
denied in Bonwit - Teller, Inc. v.'N.L R.B., 197 F. 2d 640 (C A 2).
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
connection with the Union, and by telling her that he might have to close up if the
Union were successful , he undoubtedly filled her with some apprehension. While
he did not tell her specifically what to say to her nephews, his purpose was un-
doubtedly to get her to use her special position and moral authority as their aunt
to induce Cooper and Gamble to refrain from having anything to do with the
Union . Thus Plitt 's approach to Mrs. Davidson was not a mere effort at persuasion.
In admitting that he called Weiner with reference to the use of the American
Legion Hall but in denying that he had called "to protest," Plitt was attempting to
justify his action, at least in his own mind . Perhaps he thought that the permis-
sion given by the American Legion to the Union was a fait accompli and that he
was merely calling up to express his indignation at the use of the hall by the
Teamsters rather than to demand that permission for the use of the hall be with-
drawn . But, if such was indeed his purpose , he failed to express himself very
clearly, for it is apparent from Weiner 's testimony that he understood Plitt's ex-
pression of "surprise" to be a "protest." Since Plitt indicated, moreover, that he
would call the commander of the American Legion about it, he could hardly
have failed to convey the impression to Weiner that he would be pleased if he
denied the use of the American Legion Hall to the Union . Plitt's action must be
judged objectively rather than subjectively . Whatever he may have thought.was his
purpose in calling Weiner , he was responsible for the natural consequence of his
action.
C. The alleged discriminatory discharges
I have already referred to the discharge of various employees by the Respondent.
Between December 15, 1959, and February 13, 1960 , Plitt discharged Anthony
Cooper, Joseph Gamble, John Watson , Richard A. Maxwell , and Howard Stevens,
and it is alleged in the complaint that these employees were discharged in violation
of Section 8(a) (3) of the Act by reason of the fact that they had joined and
assisted the Union and engaged in other concerted activities for their mutual aid
or protection . In the case of Watson , it is also alleged in the complaint that for the
same reason he was provided with less employment than he would ordinarily have
received prior to his discharge. I shall proceed to consider these cases seriatim.
(a) The cases of Cooper and Gamble : These two cases may conveniently be con-
sidered together not only because they involve the two nephews of Mrs. Davidson,
who were the subject of the conversation between her and Plitt, but also because
they were both discharged for the same reasons , namely repeated tardiness and
absenteeism.
As already mentioned , Gamble obtained his job at Valley Feed through Mrs.
Davidson , his aunt. He was first employed as a packer in the latter part of Sep-
tember 1958 , but about 2 months later he was promoted to the operation of a pack-
aging machine . In addition to working the regular hours during the day, which
were from 8 a.m. to 4 : 30 p.m., Mondays through Fridays , he worked 4 nights a
week , and on a number of occasions , when he was working on the night shift and
both Morgan and Jones were not present , he subbed as a strawboss . Through
Gamble , Cooper was taken on by Gene Prato in November 1958 and put on pack-
ing, Morgan showing him "how to pack and stack and tape the bird food." Like
Gamble, he also worked at night.
In describing the Union 's organizing campaign , I have already stated the facts
with respect to the union activities of Cooper and Gamble . It is apparent that
Cooper was one of those who took the lead in the attempt to organize the Valley
Feed employees , and that he was perhaps the most active among them. He not only
attended every union meeting but secured the greatest number of signatures to
union authorization cards. On the other hand, Gamble does not appear to have
been much more active than a number of other Valley Feed employees who sup-
ported the Union , and who are still employed by Valley Feed.
Both Cooper and Gamble had a grievous record of tardiness and unexplained
absenteeism-particularly the latter. They not only failed to report for work on
numerous occasions in the months preceding the union organizing campaign, as
well as in the period while the campaign was in progress , but almost always failed
to call in to report that they would be absent, although they were expected to do
so. as is indicated by their own testimony as well as that of other employees.
It is true that many of the absences of Cooper and Gamble occurred on Saturdays,
and that Saturday work , which commenced at 7 a.m ., was not mandatory. But
employees who did not wish to work on Saturdays were expected to indicate in
advance that they would not be available.
The record indicates some of the reasons for Cooper's tardiness and absenteeism.
While still a regular employee of Valley Feed , he took on a second job with Fisher
VALLEY FEED AND SUPPLY CO., INC. 795
Body in Tarrytown, New York, where he worked from 3:42 p.m. to 12:12 a.m.,
which would be a full 8-hour shift. Fearing ,that he would be fired by Valley Feed
for taking on the second job, he made up a story about having a sick mother, for
whom he had to take care of some business in Long Island. He testified that be-
cause of this he arranged with Jerry Morgan to come in from 8 a.m. to 2 p.m.
"every day" but I do not credit this, for Plitt testified that Cooper was given per-
mission to leave at 2 p.m., only 2 days a week, and it is unlikely that Cooper would
have been allowed to leave every afternoon merely to attend to business. However,
along about the second week in August, Cooper was laid off by Fisher Body, and
resumed his full-time employment at Valley Feed until December 14, when he was
called back to work at Fisher Body.
The absenteeism which led more immediately to Cooper's discharge was oc-
casioned by a series of visits which he made to no less than three different doctors
during the first 2 weeks in December. The nature of the condition for which he
was seeking treatment does not appear, except that he testified that one of the
doctors whom he visited was a urologist. Partly because of medical visits but also
because he had to do some baby-sitting for a cousin, meet his mother, and straighten
out some difficulty about his automobile license plates, Cooper absented himself
continuously from work from Friday afternoon, December 11, to Tuesday morning,
December 15, when he finally reported for work at about 9:15 a.m., which would
be an hour and a quarter late. Having returned to work for Fisher Body on
December 14, he obviously had not had much time for sleep. Cooper admitted
that he did not call in to say that he would not be coming to work on Saturday but
he testified that he had asked Gamble with whom he was lunching at home to tell
either Plitt or Morgan that he would not be coming to work that Friday afternoon
or on Monday. I do not credit this testimony.26
When Cooper finally reported for work at about 9:15 a.m. on Tuesday, Decem-
ber 15, Morgan saw him and told him not to punch in but to go and see Plitt.
In the meantime, Plitt came down the aisle, and called Cooper and another em-
ployee into his inner office. Cooper thus reported his interview with Plitt on this
occasion:
He spoke to me. He asked me where I was Friday and I asked him didn't
Jerry tell him where I went and he said no. I asked him didn't my cousin tell
him that I was not coming in, and he said, "I didn't see him in two weeks."
We went on. So he said, "We work together around here," and I said, "Yes,
we do." So he then said, "Without you here we can't produce like we should,"
and I said, "Yes." So he said, "Well, then, we no longer need to be together."
So I asked him for my paycheck.
Cooper also testified that Plitt's face was very red, and that he was angry, and that
when he remarked to Plitt: "You can't fire me. I am in the union," Plitt replied:
"I am not firing you because of the union."
When Cooper came home after being discharged, he found a letter from Plitt,
dated December 12, stating that this was his third warning about not showing up for
work, and telling him that if it occurred again his services would be dispensed with.
Cooper testified that the letter constituted only his second warning. In fact, how-
ever, he had already bgen warned three times about his absenteeism. On, the last
occasion, which was during the first week in November, both Cooper and Gamble
had been called into Plitt's office, and given a dressing down for their absenteeism.
When Plitt was asked: "Did you tell them they would be discharged if they didn't
call in and stayed out again?" He answered: "It was quite implied in no uncertain
terms."
Gamble's record of absenteeism, prior to his discharge, about equaled that of
Cooper. Unlike the latter, Gamble came to work Friday afternoon, December 11,,
but he failed to report for work the following Saturday, Monday, and Tuesday. He
testified that the reason for his absence was that he had a cold, and was running a
fever. He admitted, however, that he had no one call in on his behalf until Monday,
when he had "a girl friend" call to let Plitt know "I was not coming in Monday."
However, Plitt testified, and I credit his testimony, that the girlfriend did not call
in until Tuesday, and that in the telephone conversation she represented herself as
' In the first place, Cooper's testimony is inconsistent with that of Gamble, who testi-
fied: "On the way home he told me to remind Jerry Morgan that he would be out the
rest of the afternoon, because he had told Jerry already" [Emphasis supplied 1 In the
second place, Plitt testified that be had asked Morgan "whether Gamble had advised him
of Tony's absence or his absence, his'being out, and he (Morgan) said: 'They never said
anything to me whatsoever.' "
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gamble's aunt. Plitt did not take this call himself but the person who did so told
him that it was a young girl's voice. Plitt called Mrs. Davidson but she was out of
town. This prearranged prevarication was for Plitt, apparently, the last straw. As
in the case of Cooper, he had sent Gamble a warning letter under date of Decem-
ber 12. When Gamble finally came to work on Wednesday, December 16, Plitt
informed him that he was dispensing with his services.
There are some suspicious circumstances in connection with the discharge of
Cooper and Gamble. Plitt undoubtedly had knowledge of their connection with
the Union,27 although it is not clear that he was aware of the extent of their activity.
Then there is the question posed by Watson in the second break room meeting:
Why had Plitt waited so long before firing them? Apparently, Plitt himself felt
that he owed his employees an explanation, for he called the second break room
meeting for this purpose. It is very doubtful that Watson reported everything that
Plitt said on this occasion. But the record suggests both why Plitt delayed the
discharges, and finally made them, despite the risk that he might be charged with
getting rid of them because of their union activity.
It seems to me that Plitt was so patient with Cooper and Gamble basically because
they were satisfactory employees-indeed Gamble, who was a strawboss, must have
been a particularly valuable employee-and satisfactory employees were hard to
come by, for the record shows that Valley Feed had a high rate of employment
turnover, and the working of overtime was common. The relationship between
Cooper and Gamble and Mrs. Davidson, moreover, would tend to make him endure
more from them than from other employees. However, Plitt's patience was not
infinite-the record shows, for instance, that he discharged Garrison for being
"undependable"-and he could reach the breaking point under sufficient provocation.
Surely, such provocation existed in the cases of Cooper and Gamble. It is apparent
that they were behaving as if, having joined the Union, they had taken out an
insurance policy against being fired. When they were finally dismissed by Plitt, it
was not for ordinary absenteeism of a day or even two. It was for a spree of
continuous absenteeism which went beyond anything of which they had been guilty
before, and which was compounded in the case of Cooper by tardiness upon his
return to work, and in the case of Gamble by prevarication. In these circumstances,
I must conclude that the burden of proving that Plitt's motive in discharging Cooper
and Gamble was their union activity has not been met.
(b) The case of Maxwell: Maxwell started as a part-time employee with Valley
Feed in August or September 1958. At first he was engaged in woodworking, and he
helped in the refinishing of the office at Valley Feed, as well as working in a shop at
Plitt's home, where he made bird feeders. In February 1959, he was shifted to the
maintenance department, but he also was employed for a while in connection with
some construction work on the Valley Feed office building and mill. For a period
of time he even doubled as a millhand. As a maintenance employee he was paid,
after June 1959, at the rate of $1.60 an hour.
On November 24, 1959, Maxwell was working overtime at night, as were a
number of other employees, including George Jones, Edward O'Neil, Tony Cooper,
Joseph Gamble, Keith Jagoe (who was Maxwell's strawboss), Horst Schiller, and
Robert Coons. In the words of Maxwell, "the fellows decided to have a little
party. Someone was sent out to get liquor." Maxwell, who was a constant and heavy
drinker himself, in testifying about the party, attempted to cast himself in the role of
a reluctant participant, as if he were being led astray by evil companions. He testi-
fied that he did not know about the liquor at first but that when it was offered to him
later he accepted. "Most everyone accepted," he added.
After this conviviality, when it came time to go home, Edward O'Neil offered
Maxwell a ride in his car, which the latter accepted. It had been raining that day,
and as O'Neil who was driving, proceeded on -Union Road toward Madison Avenue
in Spring Valley "at a fair rate of speed"-Maxwell testified that he would not say
that O'Neil was speeding-he lost control of the car, and the car skidded and hit
a telephone pole.
ZT This is evident from Plitt's approach to Mrs. Davidson Plitt denied that he "knew"
that 'Cooper and Gamble were union members but this is only an example of his absolute
conception of knowledge. He made a statement to a Board agent under date of March 15,
1960. In which he declared that he knew that Cooper and Gamble were union adherents
only because Monell bad called him up and told him so I do not credit Monell's rather
confused testimony that it was Plitt who had called him up on a Monday, which Monell
testified was either December 18 or 19, and told him that he was going to fire Cooper
December 18 and 19 were , respectively , a Friday and Saturday , and either of these dates
was, of course , after the discharge of Cooper and Gamble
VALLEY FEED AND SUPPLY CO., INC. 797
Maxwell was rendered unconscious by the impact and was taken to the Spring
Valley General Hospital where he remained for 6 days. In addition to cuts around
his face and other parts of his body, he had a concussion of the brain, which affected
his eyeballs. After he left the hospital he saw an eye doctor and a brain specialist,
and he was told to get complete rest for several weeks. During this period, and
throughout the month of January, he suffered from headaches. He also had dizzy
spells.
Plitt never knew of the drinking party that preceded the accident in which Maxwell
was injured until he heard the testimony about it at the hearing. Plitt never saw
Edward O'Neil again after the accident, and it is not clear whether he was actually
discharged, or merely failed to come back to work again . So far as Maxwell was
concerned, Plitt first learned of the accident in which he had been involved on the
Friday after Thanksgiving Day when he called Mrs. Maxwell, who told him that her
husband was in the hospital. Mrs. Maxwell testified that Plitt expressed both sur-
prise and concern. Mrs. Maxwell made two visits subsequently to the Valley Feed
plant. During her first visit she picked up Maxwell's paycheck, and during her second
visit, which was on Friday, December 4, she saw Mrs. Plitt and asked the latter
whether her husband still had a job left. Mrs. Plitt told her not to worry about it.
Arrangements were made to fill out the necessary forms, so that Maxwell could get
his disability benefits from the New York Mutual Casualty Insurance Company,
which was Valley Feed's insurance carrier. Maxwell received $292.50 in disability
benefits, covering the period from December 3,.1959, to January 18, 1960. With the
last payment, he received a form indicating that disability payments would be
terminated as of that date. Three reasons for making final payment were printed
on the form, and the one checked in the case of Maxwell read: "Your attending
physician indicates that you can return to work on ____----------- In the blank
space "1/18/60" was filled in.
The testimony of Maxwell with respect to the events leading to the termination of
his employment is in large part confused or incredible and irreconcilable in many
respects with that of Plitt. He was not only hazy about dates of importance to him 28
but also about the nature and sequence of the events in which he had been involved.
This is perhaps not surprising, for he had suffered from a brain concussion, and was
under the influence of drugs at the time of the events to which he was testifying. I
shall first summarize Maxwell's testimony, which was as follows:
Having been released from the hospital, -and being able to walk sooner than his
doctors had expected, he walked over to the Valley Feed plant about December 12
to see Plitt but, since the latter was not there, he talked to some of his fellow em-
ployees, and to Mrs. Plitt, who asked him how he was getting along. Three or four
days later, which would be about December 15 or 16, he walked over to the Valley
Feed plant and this time he found Plitt in. They first discussed his accident and
then Plitt brought up the subject of "this union business," about which he seemed
to be "a little disgusted," and then began also to confide in Maxwell that he knew
that "the union was trying to get into Valley Feed," that "fourteen people had signed
for the union"; that he had fired Cooper and Gamble and that Watson was "the
instigator of this thing" ('Maxwell at this point hastily added: "Whether he had
fired them at that time, I do not know"); that "George Jones was not the instigator
because he had talked it over with George and George was willing to back out," and
that he had a list of mill workers and maintenance men "who had engaged in the
union." At ,this point Plitt asked him whether he had joined the Union, and upon
Maxwell confessing that he had, Plitt engaged him in an argument on the benefits
of union membership until it was time for him to go to the drugstore to pick up
some drugs prescribed for him by his doctor. However, before Maxwell left, Plitt
asked him, despite his confession of union membership, when he would be able
to return to work. Maxwell-replied that he was not sure but would let Plitt know
as soon as he could. Plitt then told him that he would have to obtain statements
from two doctors certifying that he was fit to do medium to heavy work.
Maxwell testified that he went to the Valley Feed plant "usually every week," and
that he saw Plitt "possibly on five occasions -between the time of my first visit and
my last visit," which would make seven visits in all. However, he testified only
with respect to-what had happened during two personal visits, the one of December
15 or 16, which has already been mentioned, and another visit which occurred sub-
sequent to his discharge. He also testified with respect to other contacts with Plitt
by means of the telephone.
This was, to be sure , a fault which he shared,to some extent with other witnesses,
including Plitt and William R. Sichol, a lawyer whom Maxwell had retained to bring
the damage suit arising from his accident.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, he testified that Plitt called him one day "in the middle or close to the end
'of December" to ask him to hang some storm windows at his residence, and Maxwell
told Plitt ",I would try." Plitt told Maxwell that he would send Keith Jagoe to pick
him up and he did. After starting some cars in Plitt's driveway, however, Maxwell
and Jagoe decided it was too- cold to work that day. If this work had been per-
formed, it would have been paid for by Plitt's personal check.
In January, Maxwell was still seeing doctors. Early in January, he testified, he
saw a brain specialist who arranged for him to have a brain wave test the following
Saturday, which he said was around January 12 (actually this date would be a Tues-
day). After receiving the termination notice from the insurance company, he made
arrangements to see his own doctor but his appointment was canceled because of
the doctor's illness, and he did not see the doctor until January 29. Before keeping
the appointment with the doctor, however, he telephoned his office to make sure
that if he kept the appointment he could get the forms that Plitt wanted-presumably
he meant the medical certificates-and was told that he would be able to obtain them.
So at this point, before seeing the doctor, he called Plitt and told him that he would
be able to return to work on Monday, and that he would bring the forms with him.
Whereupon Plitt said to him: "Well, Dick, you have been out for so long that we can't
use you any more. We had 'to hire someone else to replace you." Not knowing
quite what to say to this, Maxwell asked, "Why?" and Plitt told him that "if any-
thing would come up within the next few weeks, he would give me a call."
Having thus had his employment terminated, it seems that Maxwell, as not in-
frequently happens, became active in the Union. It is true that he had already
signed a union authorization card dated December 4, 1959. Not being in a con-
dition permitting him to attend the union meeting of December 4, however, he had
signed the card at his home, to which it had been brought.29 There is no further
evidence of overt union activity on Maxwell's part until after the termination of
his employment. He attended the union meeting of 'February 14 at the American
Legion Hall, and the last union meeting at Haverstraw on February 21. In con-
nection with the last meeting, he joined two other Valley Feed employees, Stevens
and Cooper, in stopping cars of employees coming to work at the Valley Feed plant
on Saturday, February 20, to ask them to attend the union meeting scheduled for
the next day. While he was engaged in this activity, he was observed by Plitt, who
was standing outside the Valley Feed office.
Maxwell testified further that on the Monday morning following the union meet-
ing, which would be February 22, he went to see Plitt in his office to ask him whether
he had any work for him, since he had told him previously that if something came up
he would let him know, but that Plitt told him he was not wanted around there, and
when he asked why he was being treated that way, Plitt remarked: "If there was a
picket line out front, you probably would be out there, wouldn't you?" Maxwell then
testified further with respect to the conversation as follows:
I said, "Yes, I would." I also told him that if there was one out there tomorrow,
I would be out there, also.
He said what right did I have to stop those cars up the street. I didn't answer
him on that. I asked him why had I been thrown out of the job and some of
these other fellows which had organized the union at first were still working. He
said he had talked it over with the fellows that were there and they were not
disloyal, working behind his back. Also, Mr. Plitt had told me he had seen me
up the street with Tony and Howard, and he said, "You picked your friends,"
like Tony Cooper. He said, "Go let the union take care of you. They got more
money than I got."
Plitt testified that his contacts with Maxwell after his accident were primarily by
telephone; that Maxwell was telephoning his office "practically every day, or every
other day"; that, while Maxwell may have visited the plant on one or two occasions
prior to the time that he saw him, he could recall only two occasions "talking with
him in the plant," one prior to his dismissal, and the other after his dismissal.
Specifically, Plitt testified that his first contact with Maxwell was in a telephone call
"approximately two weeks after the accident" in which Maxwell stated that he had
not received any insurance checks. Plitt questioned Maxwell about how he felt,
and the latter said that "he had these terrible dizzy spells." Plitt expressed his sympa-
29 Although Maxwell's card is dated December 4, 1959, it is impossible to believe that
he actually signed it on that date. The union meeting on December 4 lasted until 2 a m ,
and his fellow employees would hardly have descended on a man just out of the hospital
in one of the early morning hours to get him to sign a union card. Maxwell must have
actually signed the card at a later date.
VALLEY FEED AND SUPPLY CO., INC. 799
thies, and instructed his bookkeeper to send Maxwell "whatever forms were neces-
sary." Asked whether "subsequent to this communication," there had been any
further communications with Maxwell, Plitt replied: "Yes, there were several phone
calls." In these telephone calls, Maxwell would express his desire to return to work,
and Plitt would inquire about how he felt. In a telephone call which occurred in
the latter part of December "somewheres prior to Christmas," Plitt told Maxwell
that he had discussed the matter with his insurance company, and that it had been
recommended to him that he ask Maxwell to furnish two medical certificates, one
from his attending physician and the other from a specialist. Maxwell said that he
would get the certificates but, one day, Plitt had a telephone call from William R.
Sichol, the attorney who had been retained by Maxwell to bring a damage suit against
O'Neil. When Plitt mentioned in the course of the conversation that he was re-
questing Maxwell to furnish medical certificates as a condition of his returning
to work, Sichol expressed opposition to the idea, since he believed that it would
adversely affect Maxwell's case.30 The day following Sichol's call to Plitt, Maxwell
himself called Plitt to tell him that his attorney was against furnishing the medical
certificates.31 Plitt then told Maxwell that he did not want to get involved in any
lawsuits, and that he had better seek employment elsewhere where they would not
know that he had been involved in an accident affecting his head. In thus terminating
the employment of Maxwell, Plitt also had another reason. After Maxwell's accident
Plitt had heard rumors that his injured employee had been convicted of drunken
driving,32 and investigation brought to light the fact that Maxwell had pleaded
guilty on October 1, 1957 in Rockland County, New York, to the felony of driving
while intoxicated 33 Plitt testified that Maxwell's conviction influenced his decision
to refuse him further employment but that he did not mention this to him.
In addition to giving testimony that is inconsistent with that of Maxwell, Plitt
specifically denied in the course of his cross-examination that Maxwell had ever
telephoned him to tell him that he could have the medical certificates within a few
days-by the following Monday; or that he ever had an interview with Maxwell, as
the latter claimed, in which he told him that "he was too late to get the certificates";
or that he ever told Maxwell that he might have work for him in a few weeks34
Plitt admitted, however, that he had had a conversation with Maxwell subsequent
to his discharge in which the distribution of the union leaflets near the plant on
February 20 had been mentioned but Plitt's version of the conversation differs con-
siderably from that of Maxwell. According to Plitt, the conversation went as fol-
lows: Maxwell said that he would like to come back to work at Valley Feed, and
that he would not do anything to hurt Plitt, whereupon Plitt was led to remark:
"You have a funny way of showing that." When Maxwell asked: "What do you
mean by that?" Plitt replied: "Dick, weren't you one of those fellows stopping cars
to distribute leaflets?" Maxwell's comment on this was: "Well, yes, but I was told
to do it." Plitt then observed: "Well, that's a funny way of showing your feeling
for me and the company," and Maxwell expressed agreement with this, saying: "Yes,
I agree with you, I guess that's right."
30 Sichol, who was called as a witness on behalf of the General Counsel, confirmed this
He testified that when he had telephoned to Plitt sometime in January 1900 to discuss
Maxwell's return to work, he had told Plitt that he would be unable to procure the
medical certificates "because I could not get my doctor to say this man had fully re-
covered," and that in any event he was opposed to furnishing such certificates because it
would adversely affect his damage suit . Sichol, who was something of an expert in these
matters , also expressed the opinion that it was "rather unusual" for Plitt to insist on
the furnishing of medical certificates , since they were not "as a rule" required by insur-
ance companies.
31 Maxwell admitted during his cross-examination that he had never produced the two
medical certificates requested by Plitt. -
a3 Plitt could not remember from whom he had first heard the rumor.
33 In the course of his cross-examination Maxwell also admitted to two other convic-
tions for driving while intoxicated . I take official notice of the provisions of Section 1192
of Article 31 of the New York State Vehicles and Traffic Law under which conviction of
operating a motor vehicle in an intoxicated condition after conviction for the same offense
within a period of 10 years is made a felony punishable "by imprisonment for not less
than sixty days nor more than two years or by a fine of not less than two hundred dollars
nor more than two thousand dollars or by both such imprisonment or fine "
34 Maxwell , having testified tbttt Plitt had had a drink with him in the plant on a cer-
tain occasion apart from a Christmas party , Plitt also vehemently characterized this
testimony as "a lie." -
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- While it is established that Maxwell was either discharged or refused further em-
ployment by the Respondent sometime in January 1960, I must conclude that the
burden of proving that this occurred because of 35 his union membership or activity
has not been met. The record is indeed devoid of affirmative proof of a credible
nature that Plitt was aware of Maxwell's union activity prior to his discharge. I
consider Maxwell's testimony concerning the personal interview that he had with
Plitt on December 15 or 16 a fantasy compounded of rumors which were then cur-
rent among the Valley Feed employees. The absurdities in Maxwell's testimony
concerning what Plitt is supposed to have said in this interview are manifest. Plitt
is represented as confiding in Maxwell not only what everybody knew that he knew
about the Union but also what no employer who was not absolutely a fool, or utterly
heedless of consequences (and Plitt was neither), would ever confide to an employee
whom be intended to fire, that he had already fired, or intended to fire several em-
ployees because of their union activities, and this, too, before he had even asked
whether the employee in whom he was reposing this confidence was in the enemy
camp. It is also not apparent why Plitt should have asked Maxwell whether he had
joined the Union, when he had a list of the union employees-this is a touch that
has a distinctively Savoyard flavor. Indeed, since Maxwell was incapacitated during
the peak of the Union's drive, it is particularly unlikely that Plitt should have sus-
pected that he was among the 14 who had signed union authorization cards. More-
over, the fact that both Plitt and his wife seem to have been solicitous toward
Maxwell in the period immediately following his accident would tend to indicate, if
anything, that they did not believe him to be among the union supporters.
As there is no credible evidence that Plitt actually knew prior to Maxwell's dis-
charge that he had been engaged in union activity, an inference that he had been
discharged for such activity could hardly be warranted unless it could be shown that
the reasons assigned for the discharge were so completely devoid of rationality that
no other inference would be possible. Clearly such an inference is not possible in
the case of Maxwell. While opinions may differ on the question whether Plitt should
have insisted on the production of the medical certificates, his insistence was not -so
unreasonable that it could only be concluded that he was seeking a pretext to dis-
charge Maxwell. As a maintenance employee, Maxwell would be required in the
course of his work to use tools, including power tools, and to make use of ladders.
If not fully recovered from his brain concussion, he might not only endanger his own
life but those of fellow employees.
There are no items of evidence, moreover, that can be said to demonstrate that
Plitt was not acting in good faith. The fact that Plitt asked Maxwell to assist an-
other employee to hang some storm windows 3 or 4 weeks after his accident hardly
proves conclusively that he was capable a few weeks or a month later to do any
kind of maintenance work, however dangerous. Moreover, Maxwell could not have
been in very good condition at the time that he was asked to hang the storm windows
if he said only "I will try," and found the weather too cold for the task.
Conclusive effect can also hardly be accorded to the disability form which was
filled in to indicate that Maxwell could return to work. The circumstances under
which the form was prepared are not shown. If it was based upon a medical
examination, the physician who made the examination was not called to testify, and
was not, therefore, subjected to cross-examination. Moreover, the form does not
appear to contain a certification that;Maxwell was capable of doing any kind of
work. Sichol's testimony that he could not obtain medical. certificates of the kind
desired by Plitt militates against any such conclusion, as does indeed the fact that
Maxwell was still going to the doctors after the date that his disability payments had
been stopped. That Maxwell was actually fit for the job to which he.was seeking
to return could be established only by competent medical testimony but such testi-
mony was not produced at the hearing.
There is, moreover, Plitt's subsidiary reason for deciding not to take Maxwell
back. Although his record of drunken driving was not mentioned to Maxwell by
Plitt as a reason, for terminating his employment, I credit Plitt's testimony that it
35 Although Maxwell testified that he was discharged by Plitt on January 29, I am not
certain that this date is correct Plitt testified that he told Maxwell that. he was dis-
charged when he called the office the day following the telephone call from Sichol. How-
ever, Plitt did not specify, even approximately what date this was Plitt must have been
momentarily confused when he testified at another point that he. told Maxwell he was
discharged "perhaps four or five weeks" after his accident. This would put the discharge
at the end of December or very early in January, and Plitt also testified that he did not
ask Maxwell for the medical certificates until the latter part of December.
VALLEY FEED AND SUPPLY CO., INC. 801
was actually taken into consideration by him. After all, there was no point in men-
tioning the additional reason to Maxwell when he failed to liroduce'the medical
certificates. Indeed, considering his condition, it would hardly have been very con-
siderate to cause hiin this fuitlier embarrassment.
Of course, Plitt's conversation with Maxwell the morning of February 22 proves
that he had knowledge by then of Maxwell's union activity., But it seeing to me that
it heither proves that Maxwell's prior discharge had been discriminatory, nor that he
was then being refused reemployment by reason of union activity. It was not un-
natural for Plitt, when Maxwell was in effect 'protesting his loyalty, to comment on
his inconsistent activity. This does not seem .to me to be equivalent to a confession
on Plitt's part that he was denying him reemployment because he was supporting the
Union. Moreover, to make out such a case, it would have to be shown that
Maxwell had not then already been replaced as a maintenance employee. Actually,
Maxwell himself testified that Plitt had told him that he had been replaced, and the
record shows affirmatively that another maintenance employee, a Hans Schiller, was
hired by Plitt on February 20, 1960. Furthermore, there is no specific allegation in
the complaint that would support a finding of refusal to reemploy Maxwell after his
discharge because of his support of the Union.
(c) The case of Watson: John Watson has already been mentioned as the em-
ployee who "had a good deal to say" not only at union meetings but also in the
break room. He was first employed by Valley Feed in September-1959, starting as
a packer and stacker of small packages of birdseed, an operation that involved con-
siderable bending, and tending at first to produce backache. He then became a
floorman, a job involving the taking of different grains out of bags, and dropping
the grain in a feeder to be mixed up.
In testifying concerning his alleged discriminatory discharge, Watson also com-
plained of various forms of discrimination preceding it. Thus, he complained that
(1) after the second break room meeting, he was required to do packing again "off
and on," despite the fact that he had been'"promoted" to floorman; (2) he was then
denied Saturday work; and finally (3) he was denied overtime work immediately
prior to his discharge.
So far as the denial of Saturday work it concerned, Watson testified that "one
Friday evening"-it was, apparently, December 19-Jerry -Morgan told him that
"We do not need you Saturday. We have enough help Satur`day," and that, taking
this to mean that he did not want him "to come in Saturdays thereafter," he never
came in to work on Saturday until the latter part of January when' he heard Jerry
Morgan tell the men "we had a lot of work coming in." Watson also testified, how-
ever, that during this whole period, due to an illness in his family, he went to live in
New. York City, from which he commuted to Spring Valley until the latter part of
January. Watson never worked, however, that particular Saturday in the latter part
of January-it was January 23-because when he arrived'a8out 8:30 a.m., which
was about half an hour late, Jerry Morgan told him: "I'm sorry, John, we don't
need you, we have a man in your place." Watson testified that what Morgan told
him was impossible "because I 'wasn't coming there, so I didn't have any place to
be taken."
With respect to the circumstances of his discharge, Watson testified on direct ex-
amination as follows: On Thursday night, February 4, when he was working over-
time, George Jones told him after work that he was not supposed to work any more
overtime, and that Plitt had given Jones "that message." The next day when Watson
and Jones were sitting in the break room, Watson asked Jones whether he could fire
him. Jones said no, and Watson then asked him how he could deliver messages that
he could not answer for. 'Jones merely remarked: "I just work here." So Watson de-
cided to go and see Plitt in his office. When he arrived in Plitt's office, he said good
morning, and asked Plitt: "I would like to find out why, I can't work overtime?"
Plitt replied: "Because you are not authorized to work overtime." Watson remarked:
"I thought all the men were authorized to work overtime, all the regular men." At
this point, Plitt became very angry, and said: "Do you think you run this plant?"
Whereupon Watson declared: "You, myself, and the men run this plant" (emphasis
supplied), and Plitt fired him. ,
During his cross-examination, Watson admitted that the starting time on Saturday
was 7 a:m., and that he had, therefore, been 1i hours late when he came in to work
the Saturday late .in January after his 'long absence. He also admitted that when
he was put back on packing his rate of pay was not affected, and that on the day of his
discharge at least he was again working as a floorman.
The testimony of Plitt with reference to the alleged discriminations against Watson
prior to his discharge is entirely at variance with Watson's own. Plitt testified that
634449-62-vol. 185-52
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees were often told not to come in on Saturdays , and that he was taken off the
night work because there had been serious complaints from customers of weight short-
ages in a quantity of 25-pound packages, which were traced to the valve pack machine
operated by Watson . It was possible to trace these shortages because there was
no inventory of these packages , and the packages were delivered the day following
their production . What is puzzling about this explanation is that , although Plitt did
not fix the date when the shortages occurred or were discovered , he seemed to speak
as if Watson worked for some time after this . However , although Watson 's payroll
record, which is in evidence , indicates that he performed no overtime work in Janu-
ary, he nevertheless testified that he was removed from night work on February 4,
the night before the day he was discharged by Plitt. That the denial of overtime may
have occurred much earlier than this is further indicated by the fact that in Plitt's
testimony with respect to his interview with Watson on February 5, as a result of
which he was discharged, there never was any mention of overtime.
Except for this, Plitt's account of the interview basically agrees with Watson's.
Thus Plitt testified on his direct examination: 36
Mr. Watson came up to my office. I was on the phone. I motioned him to
wait, but he kept walking right in and sat down. I finished my phone conver-
sation. I said, "What can I do for you, John?" And he said, "I want to get a
couple of things straightened out."
I said "In regard to what?"
He said, "Well, since you and I happen to be running this plant, I want to know
just where we stand."
Q. This is a direct quote?
A. That is a direct quote. And I said, "What did you say?" And he re-
peated himself. I still didn't believe my own ears. I looked at him and said,
"I just don't follow you." He said, "Well, look, from here on in, you are going
to be running the office and I am going to be handling the men ." I again looked
at him, and he said, "You heard me." So I said, "The best thing you could do,
John, would be to turn right around and go back to your job and not say any-
thing further." He said, "Now, look, don't go pushing me around with words.
I want this thing settled and I want it settled once and for all."
Q. Did he refer to what thing he was discussing?
A. About his handling of the men, as he put it , and how it was going to be
done . So I said, "All right, I won't push you around anymore with words.
You are fired."
In view of Watson's championship of the union cause in the break room meetings,
and the reprimand which he had received from Plitt for soliciting on company
time, there is no doubt that Plitt knew that he was a union adherent. Neverthe-
less, I cannot find that he was denied either Saturday work or overtime work
because of his union activity. In the nature of things, since Saturday work was not
part of the normal workweek, it is not at all surprising that a particular employee
should be told not to come in on a particular Saturday, and I have no reason for
rejecting Plitt's testimony that employees were often told not to come in on Saturdays,
Watson merely jumped to an unjustified conclusion when he decided that his services
were no longer wanted on any Saturday. His testimony suggests, moreover, that
he reached this conclusion all the more readily because it became inconvenient for
him to work on Saturdays, what with illness in his family, and the necessity of com-
muting from New York City. As for the Saturday he reported for work, it is hardly
surprising that he should have been denied work when he arrived 1i hours late.
The evidence is also altogether too confused to make it possible to determine when
or whether Watson was denied overtime as a punishment for his union activity. If
the denial occurred, indeed, early in January, then Watson registered no complaint for
many weeks, and it would hardly be reasonable to conclude that a person of his char-
acter would suffer discrimination without protest. If, on the other hand, the denial
of overtime occurred the night of February 4, Jones' action was only provisional and
Watson's discharge the following morning made the whole question academic. As for
Watson's discharge itself, there can hardly be any question but that Plitt was fully
justified in terminating his employment because of his admitted impudence . Even in
Watson's version of his interview with Plitt the impudence is manifest.
(d) The case of Stevens: Howard Stevens was first employed by Valley Feed as a
truckdriver either toward the end of March or the beginning of April 1959. He had
had 5 or 6 years' previous experience as a truckdriver. When first employed by Valley
Feed , he was sent to work as a truckdriver for Bellows Supply Company of Valley
N Plitt's version of the conversation was substantially the same on cross-examination
VALLEY FEED AND SUPPLY CO., INC. 803
Cottage, New York, a corporation controlled by Valley Feed. He returned to Valley
Feed, however, in September 1959, and was thereafter employed both locally and on
long-distance hauls. In the case of the latter, he was employed in hauling wild-bird
seeds as far south as Washington, D.C., and as far north as Bangor, Maine, and
Buffalo, New York. When employed locally, he was paid $70 a week on the basis of a
6-day week 37 When engaged in long-distance hauls, he was paid on a mileage basis-
71 cents a mile when he drove a straight truck and 81A cents a mile when he drove
a tractor and trailer.
When Stevens was hired by Plitt, he was a member of Local 560 of the Teamsters,
and Plitt was aware of his membership when he hired him. Stevens does not appear
to have been active in the launching of the organizing campaign by Local 445, for he
attended neither the preliminary meeting at Bruno's Diner, nor the meeting of Decem-
ber 4. In fact, he never signed a card authorizing Local 445 to represent him,
probably because he was already a member of the Teamsters. However, he appears
to have attended the union meeting at Haverstraw in mid-January 1960, prior to his
discharge on February 13, 1960. After his discharge he attended the union meetings
of February 14 and 21, 1960, and, as already mentioned, he helped Maxwell and
Cooper to notify Valley Feed employees of the intention to hold the latter meeting.
On returning from a trip the night of February 12, 1960, Stevens found a note from
Plitt on the steering wheel of his car, together with his paycheck. The note read:
"Howard, please stop in and see me eight o'clock in the morning." It appears that
this was a customary mode of communication between Plitt and Stevens. When
Stevens came to Plitt's office the following morning, the latter said: "Howie, I am going
to have to let you go. You no longer fit in with the job. This has become a fast
operation now. You no longer fit in with the job, and I must let you go." Stevens
testified that he was greatly surprised by Plitt's announcement because he had never
been warned before then, and that he, therefore, shrugged his shoulders and left
Plitt's office.
Stevens further testified with respect to two visits he made to the Valley Feed
premises subsequent to his discharge. On February 15, 1960, he went to see Plitt, and
protested to him that he thought that he "had been dealt with unfairly" because he
had "never received any warnings"; he had "a clean driver's license" (by which he
meant that he had never had "a conviction on my driver's license") and had never
cheated or stolen from him or lied to him-in fact that he "lied for him" and "stuck
up for him" when stopped by the police in order to "protect his equipment." He also
asked Plitt what he meant by his being too slow, whether he expected him to make a
trip to Buffalo in 1 day, and Plitt replied only "No."
A few days later, when he went to the mill to talk to Keith Jagoe, Plitt came around
the building and saw him. Plitt asked: "Howie, what are you doing here," and when
he explained that he was speaking to Keith, Plitt said: "We no longer want your pres-
ence on the company premises., We don't want any agitators on the property." Being
unable to talk to Keith Jagoe at the mill, he went to see him at his house that night to
ask him to go to the union meeting at Haverstraw the following Sunday but, according
to Stevens, Jagoe said "he didn't think he would be able to come : He said that it
seems Mr . Plitt was taking action against the men that were going to the meetings.
He also pointed out that one day when he was in the smoking room Mr . Plitt had
pointed out to one of the employees and said that he knew that he was not at the
union meeting . So therefore he said Mr. Plitt knew who was going to the meetings
and it was not safe to go to the meetings if you wanted to keep the job there."
Apparently, in anticipation of the Respondent's defense, Stevens also testified with
respect to a fire that occurred in October 1959 in a White truck that he was then
driving on one of his long hauls to Easton, Massachusetts. According to Stevens,
this truck, a dump truck that had just undergone repairs by a White mechanic who
had converted it into a tractor truck, was on its first trip after, its conversion.
Despite this, Stevens claimed that before he left the oil pressure gauge was not
working, and that during the trip he had to keep checking the oil by pulling the
stick, which always showed "full." Nevertheless, as Stevens was leaving the last
toll booth on the Connecticut Turnpike at Norwalk, the truck- caught on fire, and
it seemed to him that the source of the fire was in the engine under the floorboard.
As he pulled off to the side of the road, he heard a loud noise underneath the truck,
and he turned the ignition off. He extinguished the blazing truck with the fire
extinguisher, being assisted in this by another truckman who had stopped to aid
him. The other truckman called the police who came to investigate but preferred
no charges. Stevens' truck was towed off the turnpike into a garage in Norwalk
and Stevens made a call to Gene Prato to tell him what had happened. Prato
By Except for the first week of his employment when he was paid $60 a week.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
informed Plitt, who drove to Norwalk that evening to get Stevens. When Plitt
arrived, Stevens lifted the hood of .the truck and showed him where a rod had gone
through the engine block, and that the transmission was leaking as shown on the
floorboards. After what had happened, the truck was used only as a source of spare
parts for other trucks. Plitt asked Stevens to make a statement about the fire for
use with his insurance company and Stevens did so.
In the course of his cross-examination, Stevens Tevealed what he meant by lying
for Plitt and sticking up for him. He explained that he had once had an accident
in Washington, D.C., on a rainy day when the traffic was heavy and cars were
pulling in and out. A car passed him, pulled in front of him, and then was forced
to stop for a red light. When he applied his brakes, his truck would not stop. The
owner of the car in front of him called the police. Instead of confessing to having
bad brakes, which might entail a big fine, he lied to the police, telling them that he
had been unable to stop because he had hit an oil slick. The police, therefore, only
charged him with following too closely, and, being taken to the police station, he put
up $10 in collateral, which, of course, he forfeited. Despite his own definition of
what constituted "a clean driver's license," he did not regard this as sullying his
license, since the conviction was not actually noted on his license. He blamed the
bad brakes on Plitt, of course, despite the fact that Plitt had had the brakes fixed.
In explaining the reasons for Stevens' discharge, Plitt testified that, while he did
not expect his drivers to drive at excessive speeds, he did expect them to adhere to
normal driving schedules , and that he had discharged Stevens because he had been
"a consistently slow driver," his driving time being hours longer than they should
have been. Since the delivery vehicles were limited in number, it meant that men
would have to be kept on overtime until Stevens arrived in the evening, in order to
load the truck and get it ready for the following day. Sometimes Stevens failed to
show up for hours with the result that the employees waiting for him would leave,
and scheduled deliveries could not be made the following day. When Stevens was
late, moreover, he would fail to call up in advance of his arrival to say that he
would be late. Stevens' tardiness was discussed with him on several occasions,
particularly on one occasion in September of 1959, following a trip to New England
from which he was due to return in the evening but did not show up until almost
noon the following day. When questioned about this late arrival, Stevens said that
he had overslept. In fact, he always had trouble waking up.
Plitt testified that while the fate of the White truck was not specifically mentioned
by him to Stevens as a reason for his discharge because he was aware of it, it was
nevertheless a factor in his discharge. Plitt did not share Stevens' belief in his own
blamelessness , and he contradicted Stevens' testimony in important respects. Thus
Plitt testified that the White truck was never converted but bought as a tractor and
used as a tractor until it was completely overhauled by a White Motor Company
mechanic just before Stevens' trip to Easton at cost of $700 to $800 ' Plitt was also
extremely skeptical about Stevens' story of the fire. Although he filed a fire in-
surance claim ,, it was not hid by the insurance company. When Plitt, who had
himself driven trUCks and trailers for over a million males, examined the truck at
Norwalk, he could find no evidence of fire, and his opinion was that the damage to
the truck had 'been the direct result of improper lubrication, which was Stevens'
responsibility. When Plitt had questioned Stevens about .the accident, he could not
give him the name of the truckdriver who, supposedly, assisted him in putting out
the fire, nor the name of the company for whom he worked, nor the name of the
Connecticut State policeman to whom he had reported the accident. Plitt checked,
moreover, with the Connecticut State Police, and they could find no report of the
fire on the White truck. Plitt also testified in general terms that he never sent a
truck on the road unless it was in good condition, and specifically that he had never
sent out a 71- or 8-ton truck with bad brakes.
Stevens did not strike me as a very credible witness, and some of his testimony
seems difficult to believe. After all, if he could lie for Plitt, he could just as readily
lie against him. A particularly crucial point in Stevens' case is whether he had been
warned concerning his derelictions prior to his discharge, and so far as this is con-
cerned, I unhesitatingly credit Plitt's rather than Stevens' testimony.
It also seems difficult to understand why Stevens should be selected for discharge
because of his union activity. Before the time of his discharge, he certainly had not
been a particularly active union member. To be sure in the conversation which
he had with Plitt in November or December 1959, he had told the latter that he
would not cross a picket line. But, if Plitt regarded this as important, it is difficult
to understand why he should wait several months before getting rid-of Stevens.
Moreover, when Plitt did finally discharge Stevens, the Union had already with-
drawn from the consent election , and its organizational drive, although it was con-
QUAKER ALLOY CASTING COMPANY 805
tinuing , has lost momentum . The union meeting at the American Legion Hall that
was held the day after Stevens' discharge seems to have been a rather lugubrious
affair . I must conclude also that the burden of proving that Stevens was, discharged
because of his union membership or activity has not been met.
IV. THE REMEDY
While I have found that the incidents involving Mrs. Davidson and the use of the
American Legion Hall represented violations of Section 8(a)(1) of the Act, I be-
lieve that they were isolated acts that are not likely to be repeated , since they were
not integral parts of an illegal plan to combat the Union .' In these circumstances,
it seems to me that the condemnation of these acts which I have expressed herein
should be sufficient to prevent their recurrence , and that no purpose would be
served by invoking the preventive machinery of the Act , and issuing a formal cease-
and-desist order.
CONCLUSIONS OF LAW
1. The Respondent , Valley Feed and Supply Co., Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Help-
ers, Local Union No. 445, is a labor organization within the meaning of Section
2(5) of the Act.
3. By requesting a third person to seek to dissuade two of its employees from
joining or assisting the Union, and by protesting against the use of a meeting place
by its employees , the Respondent has interfered with the rights of its employees
in violation of Section 8 (a) (1) of the Act.
4. The Respondent has not discriminated with respect to the hire or tenure of
employment or any term or condition of employment of any of its employees
in violation of Section 8 (a) (3) of the Act.
[Recommendations omitted from publication.]
Quaker Alloy Casting Company and United Steelworkers of
America, AFL-CIO. Case No. 4-CA-2312. February 1, 1962
DECISION AND ORDER
On August 31, 1961, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, Respondent filed exceptions to the Inter-
mediate Report and a supporting brief and the General Counsel filed
a brief in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and adopts the findings, conclusions, and recommendations of the
Trial Examiner except as modified herein.
The Trial Examiner found that Respondent had violated Section
8 (a) (3) by discharging two employees, Moyer and Tarantino, for en-
gaging in organizational activities on behalf of the Steelworkers
Union, the Charging Party herein, and because of their participation
135 NLRB No. 82.