Valley Gold Dairies, Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1965

152 N.L.R.B. 1470 (N.L.R.B. 1965)

1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 614 National Newark Building, 744 Broad Street, Newark, New
Jersey, Telephone No. Market 4-3088, if they have any questions con-
cerning this notice or compliance with its provisions.
Valley Gold Dairies, Inc.; John Edward Price, Attorney for
Valley Gold Dairies , Inc. and Chauffeurs , Teamsters and Help-
ers Local Union No. 492, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America . Cases Nos. 28-CA-1019, 28-CA-1041, 28-CA-1052,
28-0A-1067, and 28-CA-1068. June 14, 1965
DECISION AND ORDER
On December 21, 1964, Trial Examiner Irving Rogosin issued his
Decision in the above-entitled proceeding, finding that the Respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. He also found that the Respondents had not engaged in
certain other alleged unfair labor practices and recominended the dis-
missal of these allegations of the complaint. Thereafter, the Respond-
ents filed exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
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 Trial
Examiner's Decision, the exceptions, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner as modified below.'
1 We agree with the Trial Examiner that Respondent ' s interrogation of employees through
its counsel , Attorneys Price and Sears, exceeded lawful bounds and that the Respondent
Company has thereby violated Section 8 ( a) (1) by the conduct of its agents we dis-
agree, however, with the Trial Examiner's conclusion that by such conduct, Attorney
Price, who is also named as a Respondent , exceeded the bounds of mere advocacy and
that he was "purposely aiding the employer in contravening the statute ," and thereby
committed a separate individual violation of the Act . Accordingly , we shall dismiss the
complaint as to Respondent Price.
152 NLRB No. 153.
VALLEY GOLD DAIRIES, INC. 1471
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner insofar as it
pertains to Respondent Company, and orders that Valley Gold Dairies,
Inc., Albuquerque, New Mexico, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order.
The Board does not adopt the Recommended Order of the Trial
Examiner relating to Respondent Attorney and hereby orders that the
complaint insofar as it pertains to John Edward Price, Fort Worth,
Texas, attorney for Respondent Company, be, and it hereby is,
dismissed.
DECISION OF TRIAL EXAMINER
STATEMENT OF THE CASE
This proceeding under the National Labor Relations Act, as amended (20 U.S.C.
Sec. 151 et seq., 61 Stat. 136), herein called the Act, is based upon a consolidated
amended complaint, hereinafter referred to as the complaint, issued March 24, 1964,
alleging that Valley Gold Dairies, Inc., herein called Respondent Valley Gold, and
John Edward Price, attorney for Respondent Valley Gold, herein called Respondent
Price, have engaged in unfair labor practices within the meaning of Section 8 (a) (1)
and (3) and Section 2(6) and (7) of the Act.'
Specifically, the complaint alleges that on various dates between October 24, 1963,
and February 10, 1964, Respondent Valley Gold, through named supervisors (1)
interrogated employees or applicants for employment concerning their union mem-
bership, activities, and sentiments, solicited employees to engage in acts of surveil-
lance of union activities, created the impression that their union activities were being
kept under surveillance; and threatened employees with discharge or other reprisals
for engaging in union activities; (2) on or about January 31, 1964, discharged, and
thereafter failed and refused to reinstate, Raymond R Uhl because of his union or
concerted activities, thereby discouraging membership in a labor organization in viola-
tion of Section 8(a)(3); (3) on or about March 11, 1964, Respondent Price inter-
rogated employees concerning their union membership, activities, and sentiments,
and (4) by the foregoing conduct, Respondents have interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed by Section 7, thereby vio-
lating Section 8(a)(1) of the Act. Respondent's answer admits the jurisdictional
allegations of the complaint but denies generally the remaining allegations and the
commission of any unfair labor practices. Respondent Price filed no wiitten answer,
but during the hearing, was permitted, without objection, to join in the answer of
Respondent Valley Gold.
Hearing was held before Trial Examiner Irving Rogosin at Albuquerque, New
Mexico, from April 7 to April 10, 1964, both inclusive. All parties were represented
by counsel, were afforded full opportunity to be heard, to examine and cross-examine
witnesses, to present oral and documentary evidence relevant and material to the
issues , to argue orally, and file briefs. All parties declined to argue orally but, pur-
suant to an extension duly granted, filed briefs, Respondents, on May 28, 1964, the
General Counsel, on June 1, 1964. These briefs have been fully and carefully
considered.
'The original charges, dated October 28, 1963, January 9 and 31, and March 12, 1964,
in Cases Nos. 28-CA-1019, 28-CA-1041, 28-CA-1052, and 28-CA-1068, respectively,
against Respondent Valley Gold, were all duly served on said Respondent on or about said
dates ; the charge in Case No. 28-CA-1067, against Respondent Price was filed on
March 12, 1964, and duly served upon said Respondent. The consolidated amended com-
plaint was duly served upon both Respondents. Unless otherwise stated, all references
hereinafter to Respondent are intended to apply to Respondent Valley Gold
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the outset of the hearing, the General Counsel moved to amend the complaint
by including Assistant General Manager John Scholl as an agent and supervisor of
Respondent, and by alleging that on or about March 12, 1964, said supervisor also
interrogated employees concerning their union membership, activities, and sentiments
and those of other employees. The motion was granted, without objection, Respond-
ent admitting the supervisory status of said employee, but denying the remaining
allegations. Respondents' answer was regarded as having been amended accordingly.
During their case-in-chief, Respondents moved to strike from the complaint the
name of Respondent Price and the allegations charging him with the commission of
unfair labor practices. The motion, also treated as a motion to dismiss the complaint
as to that Respondent, was denied Renewed at the close of the hearing, ruling was
reserved. The motion is disposed of by the findings and conclusions hereinafter
made.
Upon the entire record in the case, including my observation of witnesses, I make
the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT VALLEY GOLD
Valley Gold Dairies, Inc , a corporation duly organized under the laws of the State
of New Mexico, with its principal office and place of business in the city of Albu-
querque, State of New Mexico, is, and at all times material has been, engaged in the
business of producing, processing and selling, at wholesale and retail, milk and dairy
products. During the past 12-month period, in the conduct of its business operations,
Respondent has sold and shipped to customers outside the State of New Mexico, milk
and dairy products valued in excess of $50,000. During the same period, Respondent
has purchased and received products and supplies from sources outside the State of
New Mexico valued in excess of $50,000 In the conduct of its retail operations,
Respondent has sold and distributed products valued in excess of $500,000. Respond-
ent admits, and I find, upon the basis of the foregoing and the entire record, that at
all times material herein, Respondent has been engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act
II THE BUSINESS OF RESPONDENT PRICE
John Edward Price is, and at all times material herein has been, an attorney and
counselor-at-law licensed to practice in the State of Texas, with his office at Fort
Worth, Texas, where he has been engaged in the practice of law, performing legal
services on behalf of Respondent and other employers 2
III THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters and Helpers, Local Union No 492, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, is, and at all times mentioned herein has been, a
labor organization within the meaning of Section 2(5) of the Act.
IV THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Introduction
Late in September 1963 the Union began an organizational drive among Respond-
ent's production and maintenance employees On October 21, 1963, the Union filed
a representation petition (Case No. 28-RC-1145) for an election among those
employees. On October 28, 1963, the Union filed an unfair labor practice charge
against Respondent Valley Gold (Case No. 28-CA-1019), alleging that, since on or
about October 21, 1963, Respondent had engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3). Thereafter, on about November 4, 1963, the
Union withdrew its petition previously filed (Case No. 28-RC-1145). On Decem-
ber 2, 1963, Respondent and the Union entered into an informal settlement agreement,
2 Respondent's answer denies that Price has, at all times material, been an employer
within the meaning of Section 2(2), but admits that he has been an agent of Respondent
within the meaning of Section 2(13) of the Act The issue of Price's status as an em-
ployer is considered hereinafter
VALLEY GOLD DAIRIES, INC. 1473
disposing of the unfair labor practice charge filed on October 28, 1963 (Case No.
28-CA-1019). The settlement agreement, approved by the Regional Director on
December 3, 1963, provided for posting of the customary notice to employees .3
Thereafter, contending that Respondent had engaged in further unfair labor prac-
tices, the Union filed a charge on January 9, 1964 (Case No. 28-CA-1041), alleging
that Respondent had violated the settlement agreement by engaging in similar acts of
interference, restraint, and coercion.
On January 14, 1964, the Union filed a representation petition (Case No. 28-RC-
1173), covering two separate units, the wholesale and retail route salesmen and the
production and maintenance employees. Pursuant to a Decision and Direction of
Election, an election was held among these groups of employees on March 30, 1964,
with results not disclosed by this record
Meanwhile, on January 30, 1964, Respondent discharged Raymond R. Uhl, a
wholesale ice cream route salesman. Next day, the Union filed an unfair labor prac-
tice charge (Case No. 28-CA-1052), alleging that Uhl had been discharged because
of his union activities. On February 25, 1964, the Regional Director notified Respond-
ent that, in view of violations of the settlement agreement disclosed by an investiga-
tion of the charges (in Cases Nos 28-CA-1041 and 28-CA-1052), he was vacating
and setting aside his approval of the agreement.
On March 11 and 12, 1964, respectively, Respondent Price and Assistant General
Manager Scholl interrogated employees by means of questionnaires, under circum-
stances described hereinafter. Thereupon, on March 12, 1964, the Union filed sepa-
rate charges, one against Respondent Price (Case No. 28-CA-1067), the other,
against Respondent Valley Gold (Case No 28-CA-1068).4 On March 24, 1964,
the consolidated amended complaint on which this proceeding is based was issued.,,
2. Interrogation and statement by supervisors antedating
the settlement agreement
The following incidents, which gave rise to the filing of the initial charge, on
October 28, 1963, were presumably involved in the settlement agreement approved
on December 3, 1963:
Item- October 21, 1963-That evening at the plant, Supervisor Jack Profford
approached Telesfor M. Carrasco, a production employee (who, with employee Mike
Garcia, had been distributing union authorization cards among the employees), and
greeted him with the remark, "Baby, I believe you goofed " Carrasco replied, "Do
you really think so?" Profford said, "Yes," and walked away. Later, as Carrasco
was on his way to the dressing room to change, Profford followed him there. Employ-
ees "Red" Gallagos and John Ketchel were also present. Profford said to Carrasco,
"I just don't know what you are going to benefit out of the Union." When Carrasco
made no reply, Profford continued, "Every night I go up East Central and I see these
big beautiful union buildings, and they are the ones that are going to benefit out of
your paychecks, not you." Carrasco rejoined, "Jack, you like the company and I like
unions."
Although Profford, a relatively minor supervisor, did not testify, it is apparent
from Carrasco's testimony that Profford's remarks were no more than expressions of
opinion, ventured in a bantering spirit of camaraderie, free of any taint of intimida-
tion or coercion. It is, therefore, found that Profford's remarks to Carrasco on this
occasion did not amount to interference, restraint, or coercion.
Item October 22, 1963-Supervisor Profford again approached Carrasco at his
machine, and as they eyed each other, Carrasco asked, "Why are we enemies just
because I like unions and you like the company?" Profford replied, "No, Baby, I
have always liked you, but I understand you are going to have a meeting Sunday."
Carrasco agreed, and Profford continued, "Ask the union this, ask them if Dudley
Price cannot close this plant up, ... and open it under a new name and also ask them
if ... they can't cut you in pay. You know, the union can make false promises and
make promises and never keep them."
i On December 31, 1963, the Regional Director notified Respondents by letter that the
Union had complained of insufficient posting, in that the notice had not been posted in
the drivers' (route salesmen's) room as well as at the timeclock and in the lockerroom
It appears that Respondent subsequently complied with the Regional Director's recom-
mendation in this regard and also posted the notice in the drivers' room
4 The latter charge also alleged that Respondent had terminated the employment of
Donald DeVecco, on or about March 7, 1964, because of his union membership or activities
There is no allegation in the complaint concerning the termination of this employee.
5 The original consolidated complaint (Cases Nos 28-CA-1019, 28-CA-1041, and
28-CA-1052) was issued on February 26, 1964.
789- 7 30-613-vol 152-94
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carrasco's testimony regarding this encounter is uncontradicted To construe
Profford's remarks on this occasion, however, as a veiled threat to close the plant or
reduce wages, requires a strained interpretation. Profford's suggestion that Carrasco
question the Union about the possible alternative courses open to Respondent in the
event of unionization, scarcely amounted to a prediction of the consequences of such
action by the employees, let alone a threat that Respondent would actually adopt any
of those courses. The remainder of Profford's remarks are clearly entitled to the
protection of free speech. It is found that Profford's remarks to Carrasco during this
exchange fell short of constitunng interference, restraint, or coercion.
Item. October 28, 1963-While Mike S. Garcia, a production employee, was
punching out, Supervisor Profford engaged him in a conversation at the timeclock.
Profford began, "So }ou guys want to bring the union in." Garcia admitted that they
did. Profford went on, "Do you think that you guys are going to get anything out of
the union." Garcia said that he believed the men would be able to obtain better
wages and working conditions. Profford tola him that some of the men would be
laid off in the summer, and that the Union would not help them, commenting that
unions were not strong enough in New Mexico to be of any use In the context in
which Profford's remarks were made on this occasion, it is evident that the statement
regarding summer layoffs was not a threat of reprisal for union activity but a state-
ment of opinion that the Union would not be able to help them in the event of
seasonal layoffs. These statements contained nothing of an intimidatory or coercive
nature, and did not constitute interference, restraint, or coercion.
Item • October 29, 1963-As Garcia was leaving the plant after punching the time-
clock, Plant Foreman Clarence Perea called him back and said. "Mike, what's this I
hear [that] you and Carrasco are bringing in the union " Garcia said, "We all want
the union " When Perea suggested that Garcia and Carrasco were the "leaders,"
Garcia remained noncommittal. Perea asked him how the men expected to benefit
from the Union Garcia ventured that conditions would be bound to improve. Soon,
Production Manager Mac Rasband drove up in his truck, and asked Perea to have a
beer. Perea invited Garcia to join them, and the three men repaired to a local
tavern. While there, Rasband mentioned that the Company had received a letter
from the Board, which, according to him, stated that the Company was not permitted
to discharge anyone. The men returned to the ice cream dock at the plant where
they stood talking. Perea said that he felt that the Company had 6lways been good
to the men, reminding Garcia that since working for the Company, Garcia had been
able to buy a home, furniture, and a car, and remarked, in effect, that one ought not
bite the hand that feeds ones Continuing, Perea said that even if the Union suc-
ceeded in organizing the employees, the Company could always find an excuse for
discharging an employee. Profford entered at this point and, joining in the conversa-
tion, repeated what he had told Garcia the day before, to the effect that he still did
-not believe that the men would benefit by joining the Union.?
Although Perea's remarks to Garcia were, for the most part, privileged as expres-
sions of argument or opinion, Perea's statement that in the event the Union were suc-
cessful in organizing the employees, Respondent could always find a pretext for
.discharging an employee, constituted a none too subtle hint by a responsible manage-
ment representative that employees engaging in union activities risked penalty of dis-
.charge. As such, the statement was intimidatory and coercive.
3. Events following the settlement agreement
About mid-December 1963, Warren L. Buck, a retail route salesman,8 became
involved in an altercation with Sales Manager John Martino in the hall outside the
.office of Retail Sales Manager Bill Roy.9 Overhearing the disturbance, Roy instructed
Billy Nett, Buck's immediate supervisor, to have Buck report to his office. When he
reported to Roy, according to Buck, Roy told him that he had heard that "the union
-was coming in," and asked if he "knew anything about it." Buck acknowledged that
he did Roy then said that "it didn't make any difference to him, that he had fought
this two or three other times and had beat them," obviously referring to unions. Roy
-told Buck that he was "about that far [indicating] from being fired," and that if he
6As quoted by Garcia, Perea's remark was, "If you are eating out of one hand, are you
going to knock that hand down "
7 These findings are based upon the uncontradicted and credited testimony of Garcia.
Perea did not testify.
B Buck was promoted to a job as supervisor on April 1, 1964.
O According to Buck, he and two other employees had been discussing the new pay
schedule with Martino.
VALLEY GOLD DAIRIES, INC. 1475
"thought that the union was going to keep [Roy] from firing (Buck], all [Roy] would
have to do was find three things wrong with [Buck's] work and [Roy] could [let him]
go at any time."
According to Roy's version, however, he sent for Buck because he had been "creat-
ing confusion" in the hall, and Roy wanted to discuss this with him. Roy asked him
why he had been talking to people in the hallway, and said, "What is your problem?"
Buck acknowledged that his "one big problem" was his "mouth," that he had probably
said many things in the hall he ought not to have said.'° Roy admitted that he
"proceeded to kind of get on [Buck] a little bit rough " In the course of the discus-
sion, Roy testified, Buck remarked, "Well, Bill, I guess you know the Union is coming
in here." Roy replied, that he had not been aware of it, that he had not sent for Buck
to discuss the Union, but to talk about the confusion in the hall Buck countered, "I
guess you need a Union to protect your job." Roy rejoined, "Whether you do or
don't, there's a few things you have to do around here. You have to sell and collect
and above all, you have to keep your mouth shut," adding, "The union won't protect
your job if you're not doing your job." According to Nett, who was present, Buck
,told Roy that he had been through three strikes while he was employed at Sandia.
There is no dispute that Roy summoned Buck to his office to reprimand him for his
part in the altercation, and apparently for the slurring remark he had made regarding
a supervisor. In view of Roy's admission that he took Buck rather severely to task
for his outburst in the hall, it is more probable that it was Buck rather than Roy who
first broached the subject of the Union. Roy's testimony that when he gave Buck a
,dressing down, Buck, in effect, threatened him with the Union, is more plausible
than Buck's testimony that Roy sent for him to reprimand him for the commotion
in the hall and then questioned him regarding the Union. Although Roy denied
that he told Buck that he had combatted unions on previous occasions , testifying
that he had never been involved with unions before, it is not improbable that he
made such a statement in response to Buck's scarcely concealed threat to enlist the
aid of the Union to oppose any disciplinary action by the Company I conclude
and find that Roy did not interrogate Buck about the Union on this occasion, but
that Buck, himself, brought up the subject under the circumstances, and in the con-
text described, and that whatever statements were made by Roy were prompted by
Buck's conduct in the hall and his subsequent remarks in Roy's office. In any case,
I find that Roy's remarks on this occasion did not constitute interference, restraint,
or coercion . About mid-January, 1964, Roy engaged Buck in a conversation in
the cafe next to the plant . Roy asked Buck if he had attended the union meeting
the night before. When Buck acknowledged that he had, Roy asked him what had
taken place. Buck told him that the doors of the union hall were open and that he
was welcome to attend at any time. According to Buck, Roy then asked him how
many men had been present , and Buck told him."
In the absence of any denial, I credit Buck's testimony regarding this episode. It
will be recalled that Buck became a supervisor on April 1, 1964, less than a week
before the hearing in this matter, and it is highly improbable that he would have con-
trived this incident if it had not occurred I, therefore, find that, by interiogating
Buck as to the number of employees who had attended the night before, Sales Manager
Roy engaged in an act of interference, restraint, and coercion on behalf of Respondent.
On January 23, 1964, Andrew Sisneros applied for a job at the plant as retail route
salesman . During his interview, Personnel Manager John Watson questioned him
about his attitude toward unions Sisneros, while expressing uncertainty, told Watson
that he did not think he needed a union, that he wanted no part of it because he had
not worked for a union concern before. Watson told him that several employees
were attempting to organize a union at the plant, and were distributing authorization
cards. Watson warned Sisneros that these men would be "pestering" him to sign a
card, and suggested that he sign a card "just to get them off [his] back." Watson said
that there would probably be an election, and that he had the privilege of voting as
he pleased, but that he "would not advise [him] to vote for the union." Watson then
took him in to meet Sales Manager Roy. Donald DeVecco, who had also been hired
about the same time, was also present After explaining the Company's policies and
insurance plans, Roy repeated, in substance, what Watson had told Sisneros, and
asked him how he felt about unions. Sisneros gave substantially the same reply he
"According to Nett, who was present , and substantially corroborated Roy, the discus-
sion began with Buck's collections and his "mouthing off." Nett gave as an instance of
the latter dereliction, Buck's reference to an employee as a "Wop " Roy testified that
during the altercation in the hall, Buck had called a supervisor named Delucco a "Dago."
"Buck did not testify to the substance of what he told Roy.
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had given Watson. Roy repeated what Watson had told Sisneros regarding the union
authorization cards, and his right to vote as he pleased, but advised him to vote
against the Union.
DeVecco, who had applied for a job as route salesman at about the same time as
Sisneros, was also interviewed by Personnel Manager Watson When Watson noted
on his application that DeVecco had been affiliated with the Bartenders Union,
Watson asked him his opinion about unions DeVecco told him that he "just didn't
know," that he thought they were desirable under certain circumstances.12
Immediately afterward, when he and Sisneros were interviewed by Sales Manager
Roy, the latter, after examining DeVecco's employment application, told him that the
Union was attempting to gain "a foothold in the dairy," and asked him whether he
knew about it. DeVecco said that he did not. Roy then asked his opinion about
unions, and DeVecco repeated, in substance, what he had told Watson, adding that
he had no "feeling for or against unions." Roy asked him if unions had ever done
anything for him. DeVecco agreed that they had not.
Roy told DeVecco that he would "probably be badgered" by fellow-employees to
sign a union card, that he do so if he wished, and that he could vote as he pleased in
the election, but that he did not believe the Union would prevail because it could not
improve working conditions. Roy asked DeVecco, however, if he was then engaged
in union activities and DeVecco said that he was not.
Early in February 1964, the day after a union meeting, DeVecco missed his driver
and reported for work several minutes late When he returned from his route, Roy
sent for him. Reporting to Roy's office, DeVecco found Assistant Sales Manager Roy
Houser with Roy. Roy referred to DeVecco's tardiness that morning, and told him
that if it were not for the fact that DeVecco was a good man, he would discharge him
then and there. He warned him, however, that if he were late again, he might as well
not show up at all. Observing that Roy was wearing a union button on his tie,
DeVecco asked him what it was for. Roy said, "Well, you were there last night when
they gave them out, didn't you get one."
Roy denied that he had a conversation with Sisneros regarding the Union on or
about January 23, when Sisneros applied for his job. Roy acknowledged, however,
that he had a conversation in his office with one or more of four new employees,
including Sisneros and DeVecco, on January 27, when they first reported for work.
According to Roy, he and other supervisors had been instructed by Dudley Puce,
Respondent's vice president and general manager, late in December, that they could
not interfere with the organizational activities of the employees, and that if employees
brought up the subject of the Union, the supervisors were to tell them to do what they
pleased.13
Roy admitted, however, that he told the employees who were hired at this time that
the Company was "under Union surveillance, and [that] there was a possibility the
Union was trying to get in our company." Roy told them that they would probably
be approached to sign union cards; that they could sign them or not as they pleased;
and that in the event of an election, they should vote as they wished Roy did not
specifically deny that he had asked DeVecco his opinion about unions, whether unions
had ever done anything for him, and whether he was then engaged in union activities.
In view of the credible and mutually corroborative testimony of Sisneros and
DeVecco, especially when viewed in the light of Roy's limited admissions, I conclude
and find that, despite Vice President Price's instructions, Roy made the statements
attributed to him by both these men on the occasion in question While the general
tenor of Roy's remarks regarding his opinion of unions, and what they could accom-
plish for the employees. may be entitled to the protection of the free-speech provisions
of the Act, Roy's interrogation of these employees at the threshold of their employ-
ment concerning their union sentiments and activities, without any legitimate reason,
coupled with the admonition that the Union was attempting to organize the employ-
ees in the plant and would attempt to recruit these newly hired employees, and recom-
mending that they vote against the Union in the event of an election, manifests a
determination to interfere with the right of the employees to self-organization I,
therefore, conclude and find that, by the interrogation and statements by Sales Man-
ager Roy, described above, Respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in the Act.
L Watson did not testify The findings as to the statements made by Watson to
Sisneros and DeVecco during their respective interviews are based upon the credible testi-
mony of these witnesses
11 There was no showing , however, that this information was communicated to the
employees until a month later when Vice President Price gave the speech discussed
hereinafter.
VALLEY GOLD DAIRIES, INC. 1477
In January 1964 , while Lloyd M. Springer , a retail and wholesale route salesman,
was home ill , Howard Nix , his supervisor , accompanied by Donald P. McNaughton,
a relief man , who was "pulling " Springer 's route, visited Springer to check his progress
and verify his route book. As Nix was about to leave , Springer asked him if he
planned to attend the union meeting the following night . According to Springer, Nix
replied emphatically that he did not, adding, "I'm strictly against the union, I wouldn't
go to the union meeting ." Springer testified that Nix then asked , "Who was the
instigator of all this." Springer told him that "Butch" Cummings had called him early
that afternoon and told him about it, presumably referring to the union meeting, but
that he , Springer , did not believe Cummings to be the instigator . Nix and the relief
man then left.
Nix admitted that, as he and McNaughton were about to leave, Springer asked
Nix if he intended to go to the union meeting the following night. According to Nix,
however, he told Springer that that was the first he had heard about it, and let the
matter drop Nix testified initially that he could not recall asking Springer to identify
the "instigator" of the union activity, later denying that he asked the question. Asked
categorically by Respondent 's counsel whether Springer had mentioned that Cum-
mings had called him about the union meeting, Nix testified that the question refreshed
his recollection , and that Springer had, in fact , told him that Cummings had called
him. McNaughton , who substantially corroborated Nix, testified that Springer asked
them both if they intended to go to the union meeting , and that he made the same
response as Nix had . McNaughton also denied that Nix had questioned Springer
regarding the identity of the instigator of the union activity.
An appraisal of the credibility of the witnesses , based upon my observation of their
attitude and demeanor , to say nothing of Nix's equivocation on the matter of whether
he had asked Springer to name the instigator of the union activity , persuades me that
the incident occurred substantially as described by Springer , and that , although
Springer had actually brought up the subject of the union meeting, Nix did, in fact,
ask him who the instigator of the union activity was By such inquiry , Respondent,
through Supervisor Nix, engaged in unlawful interrogtaion in violation of the Act.
Later that evening , Sales Manager Roy telephoned Springer at his home. After
inquiring about his health , and when he would be able to return to work, Roy
asked Springer whether he knew anything about the union activities that were tak-
ing place Springer told him that he had only learned of the activities that after-
noon when Cummings called him. According to Springer , Roy told him that he
had known of it for 2 or 3 weeks Roy then asked Springer if he would attend the
union meeting because Roy wanted to find out "how far this has gone." Roy
reminded Springer that he had done him favors in the past , and asked him to
reciprocate by attending the union meeting Springer agreed to do so if his doctor
would approve of his going out in the inclement weather. Although Springer
actually attended the union meeting , Roy did not question him about , nor did
Springer report to Roy , what had taken place at the union meeting
According to Roy, Nix , whom he had sent to call on Springer , reported that
Springer might be able to return by the following Friday, but that this was indefinite
Roy decided to call Springer personally Roy telephoned him, and , during the
conversation , Springer asked Roy whether he knew about the scheduled union meet-
ing When Roy replied that he did not , Springer , according to Roy, told him that
Cummings had phoned him to notify him of the meeting Roy testified that
Springer then asked him whether he should attend the meeting . Roy told him that
he could not advise him , that Springer was over 21 , and that he would have to use
his own judgment , while reminding him that they had known each other for 10
years Roy told Springer that he did not care to discuss the matter further, but
Springer persisted and asked him whether to report anything that transpired at the
union meeting if he should decide to attend. Roy told Springer that anything he
chose to tell Roy would have to be "voluntary."
Roy's version of his telephone conversation with Springer struck me as con-
trived and entirely unconvincing . Roy's purported reason for phoning Springer,
to ascertain more definitely when he expected to return to work , is patently specious.
By Roy 's own admission, Nix had reported to him on Springer 's condition and the
probable date of his return to work. Roy 's call was hardly prompted by his solici-
tude for Springer 's condition Nor, was there any occasion for urgency about
Springer 's return since his route was being covered by a relief man Roy's real
purpose in phoning Springer must be determined in the light of the information
which Nix had acquired from Springer earlier that day, and had obviously relayed
to Roy , regarding the union meeting. Viewed in this light , Roy's telephone con-
versation assumes significance . Despite his protestations that he did not question
Springer about the union meeting, and certainly did not solicit him to attend and
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report what took place, Roy's testimony that Springer, in effect, volunteered to,
engage in surveillance on behalf of Respondent, taxes credulity. As will later be,
seen, with regard to Springer's attitude during the episode involving the question-
naires , the offer to engage in surveillance, which Roy imputed to Springer, is com-
pletely out of character for Springer. Rather, does the evidence suggest that Roy
was apparently assuming , on the basis of Springer's 10 years of service with
Respondent, and the acquaintanceship of the two men, that he could depend on
Springer's confidence when he requested him to attend and report on the union,
meeting.
I find, on the basis of the foregoing and my observation of the attitude and
demeanor of the witnesses, that Roy did, in fact, solicit Springer to attend the
union meeting, and by such conduct, engaged in, or created the impression of
engaging in, surveillance of union activity. The fact that Roy did not subse-
quently question Springer about what had occurred at the union meeting, or that
Springer did not actually convey the information to Roy, does not relieve Respond-
ent of responsibility for the offense, or mitigate the gravity of the act. The mere
solicitation by the employer to engage in acts of surveillance of union activities is
in itself sufficient to constitute interference, restraint, and coercion.
In mid-January, at the end of his workday, Springer went to Roy's office to find'
out whether his volume of sales had qualified him for a bonus Springer was about
to leave, when Roy detained him, and after shutting the door, asked, "How come
you boys are so urgent to get this union." Springer observed that actually the
men were not "trying to get the union in that bad " Roy told him that he heard
that Springer had been "talking union" and signing up route salesmen Springer
neither confirmed nor denied this. As Springer started to leave, Roy said that "the
men that were signing and who had anything to do with the union, . wouldn't
be around very much longer." Springer retorted that if that was the way Roy
felt, he could "have '[Springer's] check ready anytime." 14
I conclude, and find, that Roy did, in fact, interrogate Springer on this occasion,
concerning the union activities of the employees, and Springer's participation in
such activities, and that Roy made the statements attributed to him by Springer.
By such interrogation, statements , and implied threats of discharge, Respondent has
interfered with, restrained, and coerced its employees in the exercise of rights guar-
anteed by the Act.
Early in February, Roy questioned Sisneros in his office about his knowledge of
union meetings which had been held. Roy asked him whether he was aware of a•
meeting to be held Wednesday night. When Sisneros acknowledged that he was,,
Roy asked him whether he planned to attend . Sisneros said that he did not. Roy
then asked him to attend the meeting as a favor to him so that Sisneros could con-
sider both sides of the question. Sisneros agreed to attend.
The day after Sisneros attended the union meeting, Roy sent for him to tell him,
that he would be taking over the route on which he had been "breaking in." After
giving him instructions about the route, Roy asked him if he had attended the
union meeting the night before. Sisneros said that he had. Roy then asked him•
what had been discussed at the meeting, and how many employees had been present.
Sisneros told him of the discussions, and estimated the number of employees pres-
ent at 25. Asked to identify the employees, Sisneros told Roy that he did not know
most of the men, and in any event, that he had not been able to discern them
because he was seated in the rear. According to Sisneros, Roy also asked him if
Ray Uhl (whose alleged discriminatory discharge is considered hereinafter) was
present. Sisneros told him that he did not know because he had not known Uhl
at the time.
According to Sisneros, Roy also asked him if he knew why the Company was
hiring "all these new men " Sisneros said that he did not, but that he had heard
rumors at the plant that the Company had never hired so many new men. Roy
then explained that there had been rumors of a strike, and told Sisneros that in the
event of a strike, the Company would still be able to operate because the new men
could drive the trucks, and that they, as well as Roy, and his assistant, Roy Houser,
would still be able to "pull routes" if necessary. Sisneros testified that Houser,
who was also present, joined in to say that in the event of a strike Sisneros was to
14 The findings as to this episode are based upon Springer's uncontroverted and credited
testimony. Roy was not questioned about, and did not deny, Springer's testimony con-
cerning this conversation Roy apparently did not take Springer up on his challenge.
Springer was still in Respondent's employ at the time of the hearing.
VALLEY GOLD DAIRIES, INC. 1479
"get in [his] truck and get it out of [there]." Houser told Sisneros that if anyone
attempted to open the door of his truck, or otherwise prevent Sisneros from leaving
the plant, to "hit them over the head with a bottle," and if anyone got in front of
his truck, to run over him, just so he got his truck out.]
Several days later, Roy engaged Sisneros in another conversation in his office.
Roy asked him if he planned to attend the union meeting the following Wednesday.
Sisneros said that he did not Roy told him that he would appreciate having Sis-
neros attend "because they are going to have the outcome of the union hearing " 16
Roy testified initially that he had only one conversation with Sisneros early in
February, on the 8th or 10th, which took place in Houser's presence. Asked by
Respondent's counsel whether any mention had been made about the Union, Roy
testified, "I heard nothing " He denied that he had ever asked Sisneros if he had
attended union meetings, or that he had requested him to do so Later, Roy testi-
fied that, in a conversation 4 or 5 days earlier, Sisneros had told him "a lot of
people [were] putting [him] under pressure to go to union meetings," and asked
Roy whether he ought to attend. Roy told him it was entirely up to him Roy did
not, however, categorically deny the other statements which Sisneros attributed to
him I was not impressed with Roy's partial and equivocal denials, and find, on
the basis of Sisneros' more credible and convincing testimony, that Roy, in fact,
questioned him about his attendance at union meetings, asked him to attend, and
made the statements imputed to him. Roy's interrogation of Sisneros on this sub-
ject, and his request that he attend union meetings constituted an unwarranted
invasion of the right of employees to self-organization. While Roy's first request to
Sisneros to attend the union meeting contained no direct suggestion that Sisneros to
Sisneros to attend the union meeting contained no direct suggestion that Sisneros
engage in surveillance, Roy's questioning of Sisneros the day after the union meeting,
as to who had been present and what had occurred, leaves little doubt of Roy's
motive in having asked him to attend on the previous occasion.
I find that, by Roy's interrogation of Sisneros regarding attendance at union
meetings, and his request that he attend such meetings, by his questioning of Sis-
neros regarding what had taken place, and the number of persons who had been
present, Respondent has engaged in surveillance of union activities of its employees.
By said conduct, and by Houser's instructions to Sisneros as to what to do in the
event of a strike, thereby indicating the treatment employees could expect if they
engaged in such activity, Respondent has interfered with, restrained, and coerced
employees in violation of the Act.
4. Interrogation by use of questionnaires; preparation of defense
to complaint in this proceeding
On March 11, 1964, employees were instructed to report to the conference room
at the plant, where they were interrogated by Respondent John E. Price 17 through
the use of questionnaires, under circumstances presently discussed The following
day, Assistant General Manager Scholl, under instructions from Price, interrogated
the plant employees by the same means.
On the morning of March 11, Supervisor Nett and his six retail route salesmen,
including Buck, met at a cafe near the plant where group meetings of these employ-
ees were usually held. Nett instructed them to report to the dairy for a meeting
with Scholl later that day to discuss a contemplated change in policy regarding
collections. This meeting, which Scholl had originally scheduled on March 10 for
the next day, was canceled due to the arrival of Attorney Price on the morning of
March 11, a Wednesday, when the plant was normally shut down. Scholl con-
"' The findings regarding Houser ' s statements are based upon Sisneros ' undenled and
credited testimony . Houser was not questioned about these statements . As a clear in-
citement to violence toward union adherents in the event of a strike , the statements
constitute a flagrant example of interference , restraint , and coercion
'Olt is not clear from Sisneros ' testimony what Roy meant by the "union hearing."
Nor, is it clear whether Roy wanted Sisneros to attend this union meeting so that he,
Sisneros, could learn the outcome of the "union hearing" for his own information, or in
order to report the outcome to Roy
17 Unless otherwise stated, all subsequent references to Price are intended to apply to
Respondent Price, the attorney , as distinguished from Dudley Price, vice president and
general manager
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tacted Sales Manager Roy, in charge of the retail route drivers, and Sales Manager
Oscar Winburn, in charge of the wholesale drivers, and instructed them to have
their men report to the plant later that afternoon.18 Since the plant itself was shut
down that day, Price was unable to interview the plant employees. During the
morning, however, Price, accompanied by Winburn, interviewed some of the driv-
ers, while they were covering their routes. Price and Winburn returned to the
plant shortly after noon. At about 1.15, as the men began to report and check in,
they were ushered into the conference room in groups of 3 and 4 There they were
met by Price, who introduced himself as attorney for the Company, explaining that
he was not related to Dudley Price. Roy, who checked off the employees as they
reported, remained throughout the interview of all the drivers. The employees were
seated at the conference table opposite Price and Roy. Price followed the same
procedure with each group. Displaying his copy of the original complaint, he
explained the nature of the unfair labor practices alleged, and told them that the
meeting had nothing to do with the election. Price stated that, since he had no
knowledge of the facts on which the allegations were based, to obviate interroga-
tion of employees individually, he had prepared a questionnaire designed to elicit
information essential to the preparation of his defense to the complaint Price dis-
cussed and then read the questionnaire aloud, asking the employees to follow along
as he read.19 The questionnaire contained appropriate spaces at the top for the
name, address, and telephone number of the employee, and a statement that the
answers which followed were "true and correct." The questionnaire consisted of
five questions, with appropriate subdivisions.20 Roy distributed copies of the ques-
tionnaire to the employees in each group, and Price asked them to complete and
sign them. In all, Price interviewed 42 employees 21
According to Attorney Price, many of the employees asked him questions about
filling out the questionnaire. To one employee who stated that he was "neutral on
unionism," Price repeated that the questionnaire had nothing to do with whether
employees favored or opposed the Union, that the questionnaire was being used
merely to facilitate preparation of the Company's defense to the complaint One
or more of the employees asked Price whether they were required to sign the
questionnaire. He told them that they were not, but urged them to "at least answer
the questions."
In filling out his questionnaire, Sisneros,22 whose situation will be discussed later,
answered the first question (whether he had been present when certain named or
other supervisors had interrogated employees concerning their union activities),
"No." Remaining behind after the others in his group had left, Sisneros asked
Price whether to answer the questionnaire according to the facts as he knew them.
Price said that was what he wanted. Sisneros then related what had occurred in
his interview with Personnel Manager Watson at the time of his application for
employment. When Sisneros asked whether to state this in making out the ques-
tionnaire, Price told him to answer the questions as best he could. Sisneros there-
upon crossed out the answer, "No," which he had given to the first question, and
replaced it with the word, "Yes " Price then pointed out that this also required
him to supply the name of the supervisor who had engaged in the conduct. Sis-
neros asked Price what name to insert. Told to give the name of the supervisor
18 Route salesmen were notified to attend the meeting by messages left in their boxes
at the plant.
19 As will presently be seen, Price had prepared two sets of questionnaires, one for the
route salesmen or drivers, the other, for the plant or production and maintenance em-
ployees. Each set of questionnaires was keyed to the allegations of the complaint ap-
plicable to the supervisors of the drivers and plant employees, respectively
20 Copies of these questionnaires are attached hereto and marked "Appendix A" (route
salesmen), and "Appendix B" (production and maintenance employees). The latter ques-
tionnaire contained only four questions.
21 A total of 57 employees, including both route salesmen and production and main-
tenance employees, were interviewed in this manner on March 11 and 12 Price, how-
ever, conducted the interviews only on March 11; the remaining employees were inter-
viewed next day in a similar manner by Assistant Manager Scholl
22 Sisneros testified, without contradiction, that since Wednesday and Thursday
(March 11 and 12), were his days off that week, and he had planned to be out of the
city, he asked Supervisor Nix if it was necessary for him to attend Nix told him that
it was, and Sisneros reported for the meeting
VALLEY GOLD DAIRIES, INC. 1481
involved, Sisneros inserted the name "John Watson." Price then asked him if he
had any other information regarding the charges alleged in the complaint. Sisneros
told him that that was the only instance of which he had any knowledge.23
According to Price, of the 42 employees whom he interviewed, not more than 3
gave one or more affirmative answers As an example of the type of questions
employees asked, Price testified that one employee in referring to the last question
(whether the employee had furnished the information sought by the questionnaire
to any other person in writing), told him that he had talked to a Board agent.
Price testified that he told the employee not to mention the name of the person to
whom he had spoken, that "legally I am not able to ask you whether or not you
talked to a Labor Board agent."
Of all the employees whom Price interviewed, only one employee, Springer,
refused to complete a questionnaire. Of the remainder, all but two, answered the
questions in the negative. Of the two, as has already been stated, Sisneros changed
his answer from "No" to "Yes." The employee who had inquired about how to
answer question 5 (whether he had given anyone a written statement), answered
"Yes," and a third employee answered "Yes" to one of the questions. Price tes-
tified that, once an employee answered a question in the affirmative, he did not
pursue the matter.
With regard to Springer, who had refused to fill out the questionnaire, when
Price asked him his reason for refusing, Springer remarked that he had learned in
the Army not to sign his name to anything. Price proposed to Springer that he
answer the questionnaire without signing his name, but Springer refused. With
that, Price, according to Springer, said that Springer's attitude indicated that he
"knew more about this union activity . . . than anybody [Price] had talked to "
Price told Springer that he wanted him to complete the questionnaire because the
Company wanted to know which supervisors had been engaging in interrogation
Springer retorted that he had never "put [his] finger on anybody," and that he did
not intend to start then.24
On Thursday, March 12, after Price left Albuquerque, Assistant General Man-
ager Scholl summoned the production and maintenance employees to his office in
small groups and, in the presence of Production Manager Mac Rasband, distributed
copies of the questionnaire which Price had adapted for the interrogation of these
employees. Acting on Price's instructions, Scholl read and reread the question-
naire aloud, asked the employees to answer and, if they were willing, to sign them.
' The findings regarding this exchange between Sisneros and Price are based upon a
synthesis of their testimony which was not in material conflict Buck, a supervisor at the
time of the hearing, admitted that his answers to the questionnaire wcie also untrue
24 Price denied telling Springer that his refusal to answer the questionnaire led him
to believe that Springer knew more about the union activity than any of the othei em-
ployees. Price admitted, however, that lie told Springer that if he had nothing to
conceal, there was no reason for Springer to refuse to fill out a questionnaire Even
accepting Price's version of the disputed icinark, it is evident that Price attempted to
exert pressure upon Springer to complete the questionnaire, a practice frowned on by the
Board and the courts. It should also be noted that neither Springer nor the other em-
ployees who were interrogated by this method were given any assurance by Price that no
reprisals would take place, irrespective of their answers, or, indeed, whether or not they
chose to answer the questionnaire at all (See Johnnie's Poultry Co, enfra). It is
noteworthy that Price attempted to discredit Springer under cross-examination, by elicit-
ing from him testimony that the day before the commencement of the hearing in this
matter, Springer was interrogated by Price in General Manager Price's office while Dudley
Price, Assistant Manager Scholl, and Sales Manager Roy were present In response to
Attorney Price's questioning in the office, Springer disclaimed any knowledge of facts
supporting the allegations of the complaint, especially those charging interrogation and
threats of reprisal This statement was, of course, contrary to the fact Springer
testified that the reason he denied any knowledge of such conduct on the part of super-
visors, was because he did not wish to discuss this information in the presence of com-
pany officials Moreover, Springer testified, he told Price that since the Board hearing
was scheduled the following day, he could learn the facts from his testimony at the
hearing Par from discrediting Springer, this evidence justifies the inference that Re-
spondent, having been rebuffed in its effort to obtain information from Springer by use
of the questionnaire on a voluntary basis, persisted in its interrogation, up to the very
date of the hearing This suggests that Respondent's purpose in interrogating this em-
ployee was not to enable it to prepare its defense, but to win over the employee's allegiance
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Three employees, including Carrasco and Garcia, gave affirmative answers to some
,of the questions. The completed questionnaires were then mailed to Price. Although
Scholl testified, in response to a leading question by Price, that he asked the employ-
ees to complete the questionnaire "as [Price] had done on the previous day," there
was no showing that Scholl, or Rasband, advised these employees that they were
under no obligation to answer the questionnaire, that their responses to the ques-
tions, or their refusal to fill out the questionnaire, would in no way jeopardize their
jobs.
The cases have delineated the scope of permissible interrogation of employees in
the preparation of an employer's defense to unfair labor practice charges. The
court has held,
... an employer may question his employees in preparation for a hearing but
is restricted to questions relevant to the charges of unfair labor practice and
of sufficient probative value to justify the risk of intimidation which inter-
rogation as to union matters necessarily entails; and that even such questions
may not be asked where there is purposeful intimidation of employees.25
Or, as the Board has said:
In allowing an employer the privilege of ascertaining the necessary facts from
employees in these given circumstances, the Board and courts have established
specific safeguards designed to minimize the coercive impact of such employer
interrogation. Thus, the employer must communicate to the employee the
purpose of the questioning, assure him that no reprisal will take place, and
obtain his participation on a voluntary basis; the questioning must occur in a
context free from employer hostility to union organization and must not be
itself coercive in nature; and the questions must not exceed the necessities of
the legitimate purpose by prying into other union matters, eliciting information
concerning an employee's subjective state of mind, or otherwise interfering
with the statutory rights of employees. When an employer transgresses the
boundaries of these safeguards, he loses the benefits of the privilege. (Cases
cited in footnotes 10 and 11.) 26
In a more recent case, the court, after discussing the test laid down in Joy Silk
Mills, continued:
It is apparent that the Joy Silk Mills rule calls for a delicate balance between
the legitimate interest of the employer in preparing its case for trial, and the
interest of the employee in being free from unwarranted interrogation N.L.R.B.
v. Guild Industries Mfg. Corp. [321 F. 2d 108 (C.A. 5)], supia. Any inter-
rogation by the employer relating to union matters presents an ever present
danger of coercing employees in violation of their § 7 rights. On the other
hand, fairness to the employer dictates that he be given a reasonable opportu-
nity to prepare his defense Accommodation of these interests requires that
the scope and manner of permissible questioning be strictly confined to the
necessities of trial preparation .... 27
I have not overlooked the fact that, except for the final question on each set of
questionnaires, reading:
Have you previously given the information contained in the questions and
answers above to any other person in writing?
the questionnaire dealt with "specific matters alleged in the complaint," rather than
with an attempt to elicit information given to an agent of the Board, which the
court held to constitute unlawful interrogation. It should be noted, moreover,
that since the Board, in that case, had exonerated the employer of some of the
unfair labor practices, and the court had set aside the Board's finding of a viola.
tion based upon a preelection letter to employees, the court was faced only with
the naked question of whether the interrogation by means of the questionnaire as
to the contents of statements given to Board agents, and the demand for copies of
the statements given to Board agents, and the demand for copies of the statements
25 Joy Silk Mills v. N.L.R.B., 185 F. 2d 732, 743 (C.A.D.C.), cert. denied 341 U.S. 914.
20 Johnnie's Poultry Co., 146 NLRB 770.
mTexas Industries , Inc., et al. v. N.LR.B., 336 F. 2d 128, 133 (C.A. 5), where re-
spondents were represented by Attorney Price, who also interrogated employees there by
means of a questionnaire.
VALLEY GOLD DAIRIES, INC. 1483
from the employees, violated Section 8(a)(1). Nevertheless, the court held that
such interrogation was unlawful. Respondents here seek comfort in the court's
dicta in the Texas Industi ies case,
This is not to foreclose inquiry as to whether a statement has been given with
respect to matters contained in the complaint.
Even assuming that the question, as quoted above, did not in itself exceed the limits
of permissible inquiry, the failure on the part of Respondent's agents to assure the
employees that they were under no obligation to fill out the questionnaire; that no
reprisals would take place if they refused to do so; that their jobs would in no way
be jeopardized because of the nature of their answers; the circumstances surround-
ing the interrogation of Sisneros and Springer, previously described; finally, the
existence of a background of opposition to union organization, in short, the absence
,of the safeguards established by the Board and courts "to minimize the coercive
impact of [such] employee interrogation," have deprived Respondent of the benefit
of the privileges to which it might otherwise have been entitled.
It is, therefore, found, upon the basis of the foregoing, and the entire record, that
by interrogating its employees through the use of questionnaires, without observing
the proper safeguards, Respondent, by its agents Price and Scholl, have interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed by
the Act.
5. Further interrogation of Sisneros
Two days before commencement of the hearing in this matter, Price and Sears, his
associate, interviewed Sisneros in the general manager's office. Price told Sisneros
that he was preparing the case for trial, and after confirming that Sisneros had been
served with a subpena, presumably by the General Counsel, asked whether he knew
anything more about the case. Sisneros said he did not. This was not the fact
because, as he later admitted in cross-examination, he did not disclose to Price his
conversations with Sales Manager Roy, about which he testified at the hearing.
Sears asked Sisneros to relate in his own words what he knew about any interroga-
tion by supervisors, and other matters covered in the questionnaire, and wrote out a
statement which Sisneros read but did not sign, although he acknowledged at the time,
as well as at the hearing, that the statement was correct.28 During this interview, in
which Sears questioned Sisneros exhaustively, Sisneros recalled, after Sears had
refreshed his recollection, that he had told Supervisor Nix that one of the employees
had threatened him if he did not join the Union.29 Sisneros similarly recalled that
he had asked Nix about his future with the Company, and was told that he would have
a job with the Company as long as it remained in business. Under further question-
ing, Sisneros told Sears that the statement which Sears had prepared appeared different
than the one Sisneros volunteered he had given the attorney for the General Counsel.
Sears attempted to allay Sisneros' concern that he might be made to "look bad" if
he did not testify according to the affidavit furnished the attorney for the General
Counsel. Advising Sisneros that all he was required to do was to tell the truth,
Sears told him that if he wanted to change anything in his affidavit, he had a right to
,do so, assuring him that it would only "make ... the Government lawyer ... look
bad." Although Sisneros told Sears that he had been confused when he gave the
affidavit, he was unable to say in what respects he had been confused, except that the
attorney for the General Counsel "got him all twisted up." ao
21 The salient features of this statement did not differ materially from Sisneros ' test,.
uiony on direct examination or from the affidavit which he had furnished the attorney
for the General Counsel. According to the statement prepared by Sears, Personnel Man-
ager Watson had asked Sisneros whether he would "join a Union in this company-or
something like that ." Sisneros answered , according to the statement , "Yes, if I was
required to." The statement contained no mention that Watson had advised Sisneros to
vote against the Union in the election
20 As Sisneros related this incident to Sears, the employee , subsequently identified as
Ray Sanchez , had told Sisneros that he "had better join the union or [be] wouldn't
have a job ," adding that "if [he] liked [ his] family, [he] had better join." The remark
is at least equally susceptible of the interpretation that Sanchez was employing an economic
argument to persuade Sisneros to join However , it is unnecessary to resolve this conflict.
30 Sisneros was a high school graduate, was proficient at speedwriting and typing, and
had attended a local business college, where he took courses in business administration
His testimony, that he was confused and unable to concentrate when he gave his affidavit
at his home because of the presence of his children , seems unconvincing. This did not
prevent him from making changes in his statement , which he initialed.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nevertheless, under cross-examination , when Sears asked Sisneros whether he
wished to change anything in his testimony regarding his convei sation with Personnel
Manager Watson at his employment interview, Sisneros said that he did not. Testify-
ing, without objection, in answer to a question by counsel for the General Counsel,
as to why he had originally answered "No" to the interrogatory in the questionnaire
as to whether he had been present on any occasion when supervisors had interrogated
him or other employees regarding the Union, Sisneros replied, "For fear of losing my
job "
The affidavit obtained by Dickinson, one of the attorneys for the General Counsel,
was subscribed and sworn to on February 10, 1964, some 3 weeks after Sisneros'
employment interview Corrections appearing in the affidavit are verified by Sisneros'
initials. Sisneros admitted that his recollection at that time was better than it was
when he was interviewed by Sears. After being afforded full opportunity to read his
affidavit, Sisneros testified that it differed from the one that Sears had drafted, in that
the affidavit recited that Sisneros "didn't want any part of the union," while the state-
ment prepared by Sears stated that when Watson asked Sisneros if he would join a
union , Sisneros said, "Yes, if I'm required to. I will join it." Offered an opportunity
to make other changes in his affidavit, Sisneios declined, acknowledging that in all
other respects the statement, as well as his testimony on direct examination, was
correct.
During Respondent's case. Attorney Sears stated for the recoid that he had again
interviewed Sisneros at the plant the day before,31 and recalled him as a witness for
Respondents. Sears took Sisneros over practically the same ground that had been
covered in his previous cross-examination Sisneros' answers did not differ materially
from those he had given as a witness toi the General Counsel 32
Concerning his interview with Sears, Sisneros testified that he had been having
coffee at the plant with Supervisor Nix, and as he was about to leave, Sears told him
that he wanted to see him Sears ushered Sisneros into General Manager Price's
office where he found Scholl, Roy, and Dudley Price. Sears told Sisneros that he
wanted to talk to him, that he need not worry about his job, that he need not remain,
and that he was free to say whatever he wanted
As developed in a long series of leading and suggestive questions, Sisneros testified
that Sears told him that he had discussed with Roy the statement Sears had taken floin
Sisneros, and that Roy's recollection differed from Sisneros' Sears asked Sisneros to
"try and help [him] refresh Bill Roy's memory." 33 Sisneros further testified, in
response to similarly leading questions, that Sears' questioning the day before had
"rung a bell" about certain facts concerning which he had previously testified. Sis-
neros also testified that he had not been advised by the attorney for the General
Counsel, nor was he aware. that he had a right to correct any statements in his affi-
davit, and that Sears infoimed him of this privilege. Sisneros asked Sears whether,
if he wished to correct his testimony, he would be required to return to testify Sears
told him that he might be able to "work out something with the Government" to cor-
rect his testimony, but that if that were not possible, Sisneros would have to testify.
Sisneros agreed to do so. if necessary. Sears told him that his job would not be
affected by whether he was for or against the Union, and that all Sears was interested
in was "getting the facts." Finally, Sears told him that if he found it necessary to call
Roy as a witness, any conflict in their testimony would have to be resolved by the
Trial Examiner, and that an effort should be made "to avoid the problem of having
a dispute as to who to believe " Sears told him that he would have his notes of the
interview with Sisneros typed and ready for him to read the following morning.
Sisneros reported at General Manager Price' s office next day, where Sears presented
him with the typewritten statement . Sisneros read and signed the statement , initialing
each page at Sears' direction. Later, the same day, he testified as a witness for
Respondent.
31 While Sears was conducting the interview, Respondent was represented at the hearing
by Price
12 The principal difference was that in his testimony as it witness for Respondent,
regarding a conversation with Sales Manager Roy, Sisneros testified that he complained to
Roy that employees had been pressuring him to loin the Union, and that "the fellows were
calling [him] chicken and coward " Sisneros also testified that Roy did not ask him
to attend the union meeting, but that Sisneros volunteered the information about the
meeting, and asked Roy whether he should attend. Accoiding to Sisneros, Roy told him
that it was up to him to decide, adding that he was already familiar with the Company's
views, and that if he went to the meeting he could learn the Union's position
33It should be noted that Sisneros had given no previous indication that he had testified
inaccurately and wished to change his testimony
VALLEY GOLD DAIRIES, INC. 1485
The facts which have been recounted are significant, not so much for what they
reveal about Sisneros' credibility, but for what they demonstrate about the conduct
to which Respondent's attorneys resorted in interrogating employees under the guise
of preparation of Respondent's defense. Although Sisneros appeared hesitant, nerv-
ous, and anxious, while a witness for Respondent, frequently taking refuge in lapses of
memory, his testimony as a witness for the General Counsel was generally direct,
coherent and intelligible. His testimony was not materially impaired on cross-
examination. His testimony, moreover, was consistent with the affidavit he gave the
attorney for the General Counsel, and such changes as he later sought to make were
relatively insignificant. More importantly, when offered an opportunity on the wit-
ness stand to make other changes in his affidavit, he declined. It is also significant
that, despite exhaustive cross-examination, Sisneros testified on redirect that the day
before the election, while Supervisor Nix was accompanying him on his route, these
men discussed the election, and Nix asked Sisneros whether he intended to vote.
When Sisneros told him that he did, Nix said, "I sure hope you vote for the company."
Although Sisneros testified that he did not believe his employment status would be
adversely affected if he failed to cooperate with the Company, his general attitude
and demeanoi on the witness stand manifested by nervousness and apprehension,
belied this testimony. Moreover, Sisneros testified, in connection with his conversa-
tion with Roy, as to whether he should attend the union meeting, that he was "a new
man, and wanted to do the right thing," and that was why he had asked Roy whether
to attend. Asked what he meant by "the right thing," Sisneros testified, "Well, I had
to get advice from our boss," adding that he "would have done anything he told me to
do " Significantly, Sisneros testified, under cross-examination by the General Coun-
sel, that he was in financial difficulty, his salary having been garnished as recently
as the day on which he was interviewed by Sears, and that he had filed a petition in
bankruptcy
In view of the circumstances surrounding the interrogation of Sisneros at the plant,
first by Price and Sears, in the presence of management representatives, 2 days before
the hearing, and, later, by Sears, after Sisneros had been subjected to a rigorous cross-
examination, and been excused, and while the hearing was still in progress, it becomes
apparent that the interrogation was calculated, not to arrive at the truth, but to convey
to Sisneros the wisdom of reconsidering and modifying his testimony to render it
more palatable to Respondent.
Upon the basis of the foregoing, I conclude and find that, despite what appears to
have been a transparent attempt to persuade Sisneros to change his testimony, the
evidence which he gave when called as a witness for the General Counsel, substan-
tially as set forth in his affidavit, accurately and truthfully described the events as
they occurred, and the substance of his conversations with the management repre-
sentatives involved. To the extent that Sisneros purportedly changed or qualified his
testimony under cross-examination, or during the separate interviews with Attorneys
Price and Sears, I find that such changes , which, in any event, do not affect my con-
clusions, resulted from the rigorous interrogation by Respondents' attorneys, border-
ing on harassment , if not actual interference with the Board 's processes.
I further find that by the interrogation of Sisneros by Price and Sears, under the
circumstances described above, Respondents have interfered with, restrained, and
coerced the employees in the exercise of rights guaranteed by the Act.34
a. Respondents ' contentions
With respect to the allegations of the complaint charging violations of Section
8(a)(1), Respondents contend that the execution of the settlement agreement, on
December 3, 1963, and the posting of the notice to employees, as provided in that
agreement, together with a speech made by General Manager Price to the employees,
on January 27, 1964, constituted an effective repudiation of any prior unfair labor
practices, and absolved it of any subsequent unfair labor practices committed by
supervisors or agents. While it is true that the notice contained the customary
language that employees are free to join or refrain from joining a union, in view of
the subsequent unfair labor practices committed by Respondents, the mere posting
of the formal notice did not constitute a sufficient disavowal of Respondents' unfair
labor practices, or furnish adequate assurance that employees were free to remain
or become members of the Union without fear of reprisal.
9' Although the complaint was not amended to allege this conduct as violative of Sec-
tion 8 ( a) (1), the evidence was introduced by Respondents and the issues were fully
litigated . " . . it is consonant with efficient Board administration to allow collateral
unfair labor practices stemming directly from the company's preparation of its defense
-to be disposed of in the same proceeding ." Texas Industries, supra, footnote 27
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Price's speech, purporting to set forth Respondents' policy regarding the organiza-
tional rights of its employees, and undertaking to disavow, and admonishing the
employees to disregard as unauthorized, statements and conduct of supervisors, was
similarly ineffective to exculpate Respondent from its prior unfair labor practices.
Nor, did the announcement that in the future only General Manager Price and the
company attorney would be authorized to express the Company's views on "unionism,"
immunize Respondent from the consequences of later conduct of its supervisors or
agents. For, it should be noted that, although the speech for the most part was
couched in terms of views, argument, or opinion, hence protected under Section 8(c),
at least two of the statements, both bearing a striking resemblance to similar language
in the Guild case,35 merit attention:
(1) I want to make the company's position on unionism very clear We intend
to resist the union in every legal way possible.
(2) . . . I honestly believe that a union here at Valley Gold will hurt the
employees rather than help them and that is the reason we are going to resist
their efforts to sell you people on the idea you will gain something from it
General Manager Price stated in his speech that the Company did not intend to inter-
fere with the employees' right to belong to the Union, but that no one was required
to join in order to work for the Company, nor would the Company permit anyone to
interfere with the right of employees who did not choose to join. It is noteworthy
that nowhere in the speech, however, was there any express assurance that employees
could become or remain members without fear or risk of reprisal Nor, is this omis-
sion cured by Price's reference at the outset of his speech to the conventional language
of the notice containing this assurance.as Since, as Price himself announced in his
introductory remarks, Respondent had been charged with the commission of unfair
labor practices subsequent to the settlement agreement and the posting of the notice,
in which the employees had already been apprised of their rights under the Act, the
employees could reasonably have concluded that Respondent was merely giving lip
service in its declaration as to the employees' rights Under the circumstances, it is
unlikely that anything short of a clear and unmistakable statement that the employ-
ees would not be subjected to reprisals for engaging in union activity, would have
sufficed as an effective repudiation.
I, therefore, find that neither the posting of the notice to employees, nor the speech
of General Manager Price, constituted an effective repudiation of any prior unfair
labor practices, or an advance disavowal of subsequent unfair labor practices com-
mitted by its supervisors or agents. I further find that by the statements and conduct
of such supervisors or agents, detailed above, Respondent has interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in Section
7, thereby violating Section 8 (a) (1) of the Act.
b. Responsibility of Respondent Price, as agent of Respondent
Valley Gold, and as "employer"
The record clearly establishes that, in conducting the labor relations of Respondent
Valley Gold, Price was acting as its agent As its attorney, he conferred with Vice
President and General Manager Price, and other management officials, represented
Respondent in the representation and unfair labor practice proceedings, and nego-
tiated the settlement agreement terminating the latter, issued instructions to super-
visors concerning the organizational activities of the employees, drafted General
Manager Price's speech to the employees, prepared the questionnaires which weie
used to interrogate the employees; and, of course, with his associate, represented
Respondent in these proceedings. General Manager Price informed the employees
in his speech that, outside of himself, the company attorney, obviously referring to
Price, would thereafter be the only person authorized to speak for the company on
the subject of unionism.
It is, therefore, found that, at all times material, Respondent Price was, in fact,
acting as agent of Respondent Valley Gold, in regard to the matters involved in this
ae N L R B. v Guild Industries Ilan factoring and Paul A Saad 321 F 2d 108 (C A 5),
enfg as modified 133 NLRB 1719, 135 NLRB 971 (Amended Order)
28 The speech, a copy of which was received in evidence by stipulation of the parties,
was offered by Respondent solely for the purpose of establishing that it had effectively
disavowed, or repudiated in advance, the acts of its supervisors The speech is therefore
considered only for this purpose It was also stipulated that in delivering the speech,
Price did not depart from the text
VALLEY GOLD DAIRIES, INC. 1487
proceeding, and that his statements, acts, and conduct are attributable to Respondent
Valley Gold.
Turning to the question of whether Respondent Price may also be held responsible
as an employer for the unfair labor practices committed in his capacity as agent for
Respondent Valley Gold, it is clear that Respondent Price is, by definition, an
"employer" within the meaning of the Act.37
In the Guild case,is the court carefully detailed the proper role of counsel, and
emphasized the right of parties to counsel before an administrative agency, no less
than before the courts Certainly the right to be represented by counsel must be held
to include the concomitant right to have that counsel undertake a thoroughgoing
investigation of the facts, and presentation of the client's case as forcefully and
effectively as it is within counsel's legitimate power to command. While the court
noted in the Guild case that it was "unaware of any case where a lawyer has been
held as a respondent, as distinguished from holding the company through the conduct
of the lawyer as its agent," the court went on to say, "This is not to say that in a proper
case a lawyer could not be held, but it must appear that the lawyer was purposefully
aiding the employer in contravening the statute, rather than restricting his activity to
matters within the scope of and relevant to rights of the employer by way of proceed-
ings pending or imminent."
The conduct of Respondent Price, and his associate, Sears, for whose conduct he
must be held responsible, already detailed, involving interrogation of employees by
means of questionnaires, particularly with reference to employees Sisneros and
Springer, the evidence relating to the further interrogation of Sisneros by Price and
Sears in the presence of management officials, and subsequently, by Sears, alone, in
a transparent attempt to induce him to alter his testimony, considered in light of the
statement in the speech prepared by Respondent Price, that the Company intended to
resist the Union "in every legal way possible," and that he believed that a union
would "hurt the employees rather than help them," justify the conclusion that
Respondent Price had exceeded the bounds of mere advocacy, and that he was
"purposely aiding the employer in contravening the statute ..." 39
I, therefore, conclude and find that, in "acting as an agent of [Respondent] directly
[and] indirectly," Respondent Price, has been, at all times material, an employer
within the meaning of the Act, and that he is responsible, both as agent of Respondent
Valley Gold, and as employer, for the unfair labor practices in which he has been
found to have engaged.
B. Discrimination in regard to hire and tenure of
employment of Raymond Uhl
Raymond Uhl, a wholesale ice cream route salesman, was employed by Respond-
ent about February 10, 1961, and discharged on January 30, 1964. During the union
organizational campaign among the driver salesmen, Uhl signed an authorization
card, solicited fellow-employees to join the Union and attended union meetings
In about mid-January 1964, Byers Fleming, chief supervisor under Wholesale
Sales Manager Winburn, asked Uhl if anything was going on that he ought to know
about. Uhl replied that he knew of nothing that Fleming did not already know.
Fleming told him, "You know these retail boys are going union " Uhl apparently
agreed, and Fleming continued, "They can carry the majority and push you wholesale
fellows in the union." Uhl was noncommittal, and Fleming went on, "You know
those retail boys will be happier with a lower monthly wage than you wholesale
fellows are accustomed to " Uhl said that he was aware of that, and Fleming con-
tinued, "Make sure you don't go on the same contract, make sure you have your own
separate contract."
Byers did not deny this encounter with Uhl or the statements attributed to him in
the conversation. Byers' pointed question as to whether Uhl knew anything which
Byers should know, was an obvious allusion to union activity, an unwarranted intru-
sion upon the organizational rights of the employees. Byers' other remarks, however,
though susceptible of the interpretation that he was attempting to urge Uhl to espouse
$' Section 2 states as follows
(2) The term "employer" includes any person acting as an agent of an employer
11directly or indirectly . . .
See also, N.L R.B v Guild Industries Mfg. Corp, 321 F 2d 108, 112 (CA. 5), and
cases cited.
Supra.
so N.L.R.B. v Guild Industries Mfg Corp, supra
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
separate units as between the wholesale and retail salesmen, may be equally con-
strued as friendly advice, not intended to influence the employee concerning his union
affiliation. In any event, the remarks are too tenuous to warrant a finding of unlaw-
ful interrogation, or interference, restraint, or coercion generally.
On January 30, 1964, the manager of a Piggly-Wiggly store protested to Assistant
General Manager Scholl that Respondent was violating its agieement by selling
Holland Dutch ice cream to stores other than Piggly-Wiggly.40 Scholl expressed
astonishment. The manager demanded to know whether the Company intended to
continue to sell this brand to other customers. Scholl assured him that the Company
did not, and agreed to investigate the matter personally, promising that it would not
happen again.
Scholl immediately contacted Wholesale Sales Manager Winburn, his assistant,
and instructed him to "check out" the complaint and, if his investigation revealed
that the complaint was justified, to discharge the person responsible. Winburn
arranged to have Wholesale Route Supervisor Wayne Webster and Chief Supervisor
Fleming contact him from the field and instructed them to investigate the complaint
and report to him.
About an hour later, Webster phoned Winburn that he had located Holland
Dutch in the Rancho Farm Market located in his territory. Winburn instructed
Webster to continue his investigation and find out whether any other customers
were carrying Holland Dutch. Fleming later reported to Winburn that he had
found no Holland Dutch in any of the stores in his territory. Winburn told Flem-
ing of Webster's report, and instructed Fleming to call at Rancho to verify the
report and discharge the driver responsible. Fleming returned to the plant and
upon learning that Uhl was the driver on the Rancho account, waited for him to
check in
When Uhl arrived, Fleming sent for him and, in the presence of Webster, whom
Fleming had asked to act as a witness, questioned Uhl as to whether he had deliv-
ered Holland Dutch to accounts other than Piggly-Wiggly. Uhl mentioned Rancho
as the only one. Asked how long he had been stocking Holland Dutch at Rancho,
Uhl told him about a week. Fleming remonstrated with him that Piggly-Wiggly
was "raising hell" about the sale of this item to other stores, and demanded to
know why Uhl had done it. Uhl said that he had run out of the brand he usually
supplied that customer. Asked whether Uhl did not realize that Piggly-Wiggly had
the exclusive right to that brand, Uhl admitted that he knew it, that he should not
have supplied Rancho with Holland Dutch, and promised that it woud not happen
again. Fleming said he was certain it would not. Uhl asked Fleming whether that
meant he was fired. Fleming affirmed that it did. Uhl asked him when he would
receive his paycheck, and Fleming told him that he would receive it on the regular
payday, the following day. Fleming asked Uhl whether there was anything else
the Company should know about the route, and Uhl said there was not.
Uhl admitted supplying Rancho with Holland Dutch prior to his discharge. In fact,
he claimed that he had been doing so for 2 years. He explained, however, that he
found Holland Dutch at Rancho when he first took over the route, in October
1962, and merely continued to make the same deliveries when he called on this
account twice weekly. Although he denied that any of his supervisors had ever
told him prior to his discharge that he was not to stock Holland Dutch in any
market other than Piggly-Wiggly stores, he conceded that this was generally under-
stood among the route salesmen.
In an attempt to justify his action, Uhl contended that his supervisors were fully
aware that he had been making deliveries of Holland Dutch to Rancho, and did
nothing about it Although the evidence discloses that some of his supervisors,
including acting supervisors who relieved him on his days off or during vacation,
made occasional calls on Uhl's customers, these supervisors denied that they ever
saw Holland Dutch at Rancho on any occasion prior to Uhl's discharge. Since
Uhl's testimony is based on mere supposition, I credit their denials. In view of the
importance of the Piggly-Wiggly account, and the understanding among employees
40 Under an arrangement with the Piggly-Wiggly chain, Respondent had granted it the
exclusive right to sell in all its outlets ice cream manufactured by Respondent under the
brand name "Holland Dutch," for which it owns the exclusive franchise in the territory
described as Northern New Mexico. In return, Piggly-Wiggly agreed to purchase all its
ice cream from Respondent. Piggly-Wiggly is Respondent's largest single customer, its
purchases amounting to in excess of $500,000 annually, twice the volume of its next
largest customer.
VALLEY GOLD DAIRIES, INC. 1489
regarding the exclusivity arrangement , it is highly improbable that these super-
visors would have ignored the fact if they had actually seen Holland Dutch stocked
at Rancho.
One of the proprietors of Rancho , a witness for Respondent , testified that it was
doubtful that Holland Dutch was being delivered to Rancho before Uhl took over
the route or soon after he started making deliveries . According to this witness, he
did not believe that Uhl began stocking Holland Dutch at Rancho until the sum-
mer or fall of 1963, although he testified that he did not pay particular attention
to the brand of ice cream delivered , being conceined primarily with the price of
the product.
Uhl maintained that his route book and sales slips would substantiate the fact
that he had delivered Holland Dutch to Rancho regularly for 2 years before his
discharge . Entries for the months of October , November , and December 1962,
however, failed to substantiate his claim for those months. The earliest record of
any sale of Holland Dutch to Rancho, according to Uhl's sales slips produced by
Respondent , was on February 18, 1963. Cash sales slips , covering the period from
February 18, 1963, to January 21, 1964, did disclose that Uhl, delivered to Rancho
varying quantities of Holland Dutch, ranging from 6 to 12 half-gallons on an aver-
age of roughly every 2 weeks during that period Although Uhl testified that
Rancho was his only customer, besides Piggly-Wiggly, to whom he sold Holland
Dutch, he admitted, when shown a sheet from his ioute book foi November 1963,
that he had made deliveries of that brand to Louie's Market, another customer on
his route. By way of explanation, Uhl testified that he had run out of the brand
which that customer regularly bought, and substituted Holland Dutch at the same
price, on his own initiative and without first obtaining permission from Respondent
In an attempt to account for the fact that his route book did not substantiate his
claim that he had been making deliveries of Holland Dutch to Rancho for 2 years,
Uhl testified that the route book was not the most accurate evidence of what prod-
ucts were actually delivered to customers. This, according to him, was because,
like other drivers, he did not always enter the specific items sold but only the price
of the items . This contention places Uhl in the anomalous position of trying to
establish his claim by relying on his own dereliction . Yet, his cash sales slips,
which he relies on as more reliable evidence of the products sold, fail to establish
that Uhl delivered any Holland Dutch prior to February 18, 1963.
I, therefore , conclude and find, that Uhl made no deliveries of Holland Dutch to
Rancho prior to February 18, 1963.
The General Counsel contends , however, that Uhl's route book and his sales slips
for the period between February 18, 1963, and January 21, 1964, established that
Uhl had been stocking Holland Dutch at Rancho at least during this period. This,
the General Counsel argues, should have put Respondent on notice of the fact,
and its failure to discipline Uhl for this infraction , amounted in effect , to condona-
tion of his conduct . This argument is totally unpersuasive . While there is evidence
that drivers usually leave their route books and sales slips at the plant at the end
of the day , and that supervisors have access to those records, there was no showing
that any of Uhl's supervisors would in the ordinary course of their duties have
occasion to examine these records . Nor, is there any evidence that they actually
did so in Uhl 's case at any time prior to his discharge.41
Upon the basis of the foregoing, and upon the entire record , I conclude and find
that Respondent had no actual or constructive knowledge , prior to January 30, 1964,
that Uhl had been delivering Holland Dutch ice cream to customers other than
Piggly-Wiggly , and that Respondent could not, therefore , have condoned such
sales. I further find that such sales were in violation of a strict company policy;
that Uhl was aware of that policy; and that he made such sales in disregard of
the policy.
It remains to be decided, therefore , whether, in discharging Uhl, Respondent was
motivated by discriminatory reasons proscribed by the Act rather than those on
which it relies . For, it must be borne in mind that the existence of valid cause for
"Respondent ' s chief accountant testified that neither he nor the cashier under his
supervision would have any knowledge of whether a route salesman had made deliveries
of specific items, such as Holland Dutch , to a customer The accountant ' s primary re-
sponsibility was to make certain that the route salesman made a proper accounting at the
end of the day. The only occasion the accounting department would have to examine
cash sales slips was when a salesman ' s accounts did not balance
789-730-66-vol 152-95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge is no defense to an unfair labor practice charge, where the employer's
actual motive in discharging the employee is, in fact, to discourage union member-
ship 42
This leads naturally to the question of why Uhl was singled out for retaliation
by Respondent. Uhl's own testimony discloses that his union activity was fairly
routine. He signed an authorization card, discussed the Union with fellow-employees,
and attended union meetings . There is no direct evidence that Respondent was
actually aware of Uhl's union membership or activity, unless it be surmised from
Fleming's conversation with Uhl in mid-January 1964, which has been related at
the outset of this section. This falls far short of establishing that Respondent
regarded Uhl as a leading union protagonist . Nor, was I impressed with the ill-
conceived , if not contrived , attempt to establish through Sisneros ' testimony that the
day after he attended a union meeting, Sales Manager Roy, after questioning Sisneros
about the number of employees who had been present, asked whether Uhl had been
among them . Sisneros was a new employee, unfamiliar with the other employees,
and did not even know Uhl at the time. But, even if Fleming knew or believed Uhl
to be the chief union protagonist , this alone would not insulate him from the conse-
quences of any misconduct.
The General Counsel contends , however, that the summary discharge of Uhl
without prior warning, constituted an extreme , unreasonable , and aggravated type
of discipline for the infraction involved , and that this action supports the contention
that the discharge was unlawfully motivated . While the record suggests that
Respondent did not as a matter of policy summarily discharge employees for a first
offense ( except for inefficiency , theft, drinking , and careless driving ), it cannot be
said that the discipline imposed upon Uhl for the conduct in which he engaged was
unreasonable or unduly severe in view of the gravity of the offense
With respect to this contention , the fact that Uhl was discharged without prior
warning is merely a single factor to be considered in assessing Respondent 's motiva-
tion. In any event , in the absence of a contractual undertaking, there is no require-
ment that an employer issue a warning to an employee before discharging him for
infraction of company rules or policy . 43 As the court has held,
. In considering the propriety of these discharges the question is not whether
they were merited or unmerited , just or unjust , nor whether as disciplinary
measures they were mild or drastic. These are matters to be determined by
the management , the jurisdiction of the Board being limited to whether or not
the discharges were for union activities or affiliations of the employees 44
Moreover , it should be noted that Respondent discharged Uhl only after a full
investigation of the facts , and indeed , after an admission by Uhl that he had engaged
in the conduct upon which Respondent relied for his discharge . More significantly,
at the time Assistant Manager Scholl instructed Winburn to discharge whoever was
responsible for the infraction , neither of these men was aware that Uhl was the
actual culprit.
Finally, in an effort to establish that Respondent was motivated by union con-
siderations in discharging Uhl, the General Counsel introduced evidence that, on
about January 15, 2 weeks before Uhl 's discharge , Supervisor Fleming reduced
his route by assigning a portion of it to Sanchez . Uhl's opinion , elicited on cross-
examination by Respondent 's counsel , that Fleming was prejudiced against him
because of his union activities , and reduced his route for that reason , has, of course,
no probative value. No more than does Uhl's opinion that the same motive impelled
his discharge . The record establishes that during the winter months, Respondent
reduced the ice cream routes from three to two, dividing the remaining route
between the two drivers . This was done on this occasion , and Uhl's accounts were
divided between him and Sanchez to "equalize" the earnings of these two employees.
The fact, according to Uhl, that Sanchez had not signed a union card, and had
attended only the first union meeting , or that Sanchez later told Uhl that he had
not wanted the additional accounts falls far short of establishing discriminatory
42 N.L . R B. v Buitoni Foods Corporation, 298 F. 2d 169 ( C A. 3) ; Bituminous Material
& Supply Co . v. N.L R B , 281 F. 2d 365 , 367 (C.A 8) ; Boeing Airplane Company V.
N.L R.B ., 217 F. 2d 369 , 374 (C A . 9), see also N L R.B. v. J. H. Rutter-Rex Manufac-
turing Company, Inc., 229 F . 2d 816, 819 (C A 5).
43 Osceola County Co - Operative Creamery Association v. AT L R .B , 251 F . 2d 61 (C A 8).
44 N.L.R B. v. Montgomery Ward & Co, 157 F. 2d 486 , 490, cited in Osceola County
Creamery Association v. N L R.B., supra.
VALLEY GOLD DAIRIES, INC. 1491
motive toward Uhl. Nor, can it be argued that Uhl was the victim of disparate
treatment with regard to his discharge45
Upon the basis of the foregoing, and the entire record, I conclude and find that
the General Counsel has failed to sustain the burden of proof that Respondent
discriminated in regard to the hire and tenure of employment of Raymond Uhl to
discourage membership in a labor organization in violation of Section 8(a)(3) and
(1) of the Act.46
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Valley Gold Dairies, Inc., set forth in section III,
above, occurring in connection with the operations of Respondent described in sec-
tion I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes, burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices,
it will be recommended that they cease and desist therefrom and take certain affirma-
tive action I find will effectuate the policies of the Act.
Having found that Respondent Valley Gold Dairies, Inc., has not discriminated
in regard to the hire and tenure of employment of Raymond Uhl in violation of
Section 8(a)(3), it will be recommended that those allegations be dismissed.
Because of the character and scope of the unfair labor practices found to have
been committed by Respondents, and the likelihood that other unfair labor practices
proscribed by the Act may be committed by Respondents, it will also be recommended
that Respondents cease and desist from interfering with, restraining, and coercing
employees in any manner in the exercise of the rights guaranteed by Section 7
of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record of
the case, I make the following:
CONCLUSIONS OF LAW
1. Chauffeurs, Teamsters and Helpers Local Union No. 492, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. Respondent Valley Gold has not discriminated in regard to the hire and tenure
of employment of Raymond Uhl, to discourage membership in a labor organization
in violation of Section 8 (a) (3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that:
A. Respondent Valley Gold Dairies, Inc., Albuquerque, New Mexico, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from interrogating employees regarding their union member-
ship or activities in a manner constituting interference, restraint, or coercion within
the meaning of Section 8(a)(1) of the Act, uttering threats of reprisal, or in any
other manner interfering with, restraining, or coercing employees in the exercise
49 The only other instance revealed by the record in which it was discovered that
Holland Dutch ice cream had been sold to customers other than Piggly-Wiggly, involved
an employee named Cluxton. Sanchez, who took over Clnxton's route, reported to his
supervisor that he had discovered Holland Dutch ice cream in a market on his route.
Cluxton was discharged, however, for other reasons, and the discovery was not made
until after his discharge
49 Since Respondent has relied solely on Uhl's infraction of company policy regarding
the sale of Holland Dutch ice cream, no consideration has been given to Respondent's
other complaints of dissatisfaction with Uhl as an employee.
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the right to self-organization , to form labor organizations, to join or assist the
above-named or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection as guaranteed in Section 7
of the Act, and to refrain from any or all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post at its plant in Albuquerque, New Mexico, copies of the attached notice
marked "Appendix C." Copies of this notice to be furnished by the Regional Director
for Region 28 shall, after being duly signed by Respondent Valley Gold Dairies, Inc.,
be posted immediately upon receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places where notices to employ-
ees are customarily posted. In the same manner, it shall post copies of "Appendix
D," signed by Respondent Price, to be furnished by the Regional Director. Reason-
able steps shall be taken to insure that said notices are not altered, defaced, or
covered by any other material.47
(b) Notify the Regional Director for Region 28, in writing, within 20 days from
the receipt of this Order, what steps it has taken to comply therewith.
B. Respondent John Edward Price shall:
1. Cease and desist from:
(a) Interrogating employees of Valley Gold Dairies, Inc, Albuquerque, New
Mexico, regarding their union membership or activities in a manner constituting
interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act.
(b) In any like or related manner, interfering with, restraining, or coercing
employees of Valley Gold Dairies, Inc , in the exercise of the right to self-organization,
to form or assist labor organizations, to join or assist any labor organization, to
bargain collectively through representatives of their own choosing and to engage
in concerted activities for the purpose of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act, and to refrain from any and
all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Sign and mail to the Regional Director for the Region 28 copies of the
attached notice marked "Appendix D." 48 Copies of said notice to be furnished by
the Regional Director for Region 28 shall, after being duly signed by Respondent
Price, be forthwith returned to the Regional Director for posting by Valley Gold
Dairies, Inc., at its plant in Albuquerque, New Mexico, in the manner prescribed
in section A 2(a) above.
(b) Notify the Regional Director for Region 28, in writing, within 20 days from
the receipt of this Decision , what steps he has taken to comply therewith49
It is further recommended that the complaint be dismissed insofar as it alleges
that the discharge of Raymond Uhl by Respondent Valley Gold Dairies, Inc., was
in violation of Section 8(a) (3 ).
'T In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
+8 In the event this Recommended Order be adopted by the Board , the words "a Decision
and Order " shall be substituted for the words " the Recommended Order of a Trial Exam-
iner" in the notice . In the further event the Board's Order be enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order".
+9 In the event this Recommended Order be adopted by the Board , this provision shall
be modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX A
My name is -----------------------------------------------------------
My address is ---------------------------------------------------------
My telephone number is ------------------------------------------------
I say that the answer which I give to the questions below are true and correct.
1. Were you present on any occasion when Bill Roy, John Watson, Byers Fleming
.or Howard Nicks [sic] or any other supervisor of the Valley Gold Dairies asked
VALLEY GOLD DAIRIES, INC. 1493
questions of you or any other employee concerning your, or any other employees'
membership, activities, desires or sentiments? (Your attention is particularly called
to the dates of December 15, 1963, January 3, 6, 7, 13 and 23 and February 3, 6,
and 10, 1964; however the question is meant to cover all times and should be answered
accordingly.)
Answer:--------------------------
If you have answered question # 1 "yes" please state what supervisor you heard
and tell who else was present.
The supervisors I heard in regard to question 1 were ________________________
-------------------------------------------
--------------------7----------------------
Also present at that time , were ------------------------------------------
2. Were you present on any occasion when Bill Roy or any other supervisor at
Valley Gold Dairies, threatened you, or any other employee , with discharge or other
punishment if you, or any other employee , became or remained members of the
union or gave assistance or support to it. ( Your attention is particularly called to
the date of December 15, 1963, January 13, 1964 and February 6, 1964; however,
the question is meant to cover all times and should be answered accordingly.)
Answer.-- ------------------------
If you have answered question #2 "yes" please say what supervisor you heard
and tell who else was present.
The supervisors I heard in regard to question # 2 were ______________________
-------------------------------------------
-------------------------------------------
Also present at that time, were ------------------------------------------
3. Were you present on any occasion when Bill Roy or any other supervisor or
Valley Gold Dairies made statements to you, or any other employee, which gave,
or reasonably might have given you or, any other employee, the impression that
their union activities were being spyed [sic] upon by Valley Gold Dairies manage-
ment or supervisor (Your attention is particularly called to dates of January 13, and
February 3, 1964; however the question is meant to cover all times and should be
answered accordingly.)
Answer: --------------------------
If your answer to question #3 is "yes" please state what supervisor you heard
and tell who else was present.
The supervisor I heard in regard to question #3 were ______________________
-------------------------------------------
-------------------------------------------
Also present at that time were ------------------------------------------
4 Were you present when Bill Roy or any other supervisor of Valley Gold
Dairies asked, encouraged or otherwise solicited employees to engage in acts of
watching or spying upon meeting places, meetings or activities of the union and
to report the union activities of the employees to the company?
Answer---------------------------
If your answer to question #4 is "yes" please state what supervisor you heard
and tell who else was present.
The supervisors I heard in regard to question #4 were ______________________
-------------------------------------------
-------------------------------------------
Also present at that time, were ------------------------------------------
5. Have you previously given the information contained in the questions and
answers above to any other person in writing?
Answer:--------------------------
APPENDIX B
My name is ------------------------------------------------------------
My address is ---------------------------------------------------------
My telephone number is -------------------------------------------------
I say that the answers which I give to the questions below are true and correct.
1. Were you present on any occasion when Jack Profford, or Clarence Perea, or
any other supervisor at the Valley Gold Dairies, asked questions of you or any
other employees concerning your, or any other employees', membership, activities,
desires or sentiments ? (Your attention is particularly called to the dates of Octo-
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 24 , 28 and 29, 1963; however the question is meant to cover all times and should
be answered accordingly.)
Answer:- -------------------------
If you have answered question # 1 "yes" please state what supervisor you heard
and tell who else was present.
The supervisors I heard in regard to question # 1 were _ _____________________
--------------------------------------------
--------------------------------------------
Also present , at that time , were - ----------------------------------------
2. Were you present on any occasion when Jack Profford , or Clarence Perea or
any other supervisors at the Valley Gold Dairies threatened you, or any other
employee , with discharge or other punishment if you, or any other employee , became
or remained members of the union or gave assistance or support to it. (Your attention
is particularly called to the date of October 24, 28 and 29 , 1963; however , the ques-
tion is meant to cover all times and should be answered accordingly.)
Answer --------------------------
If you have answered question # 2 "yes" please say what supervisor you heard
and tell who else was present.
The supervisor I heard in regard to question #2 were ______________________
--------------------------------------------
--------------------------------------------
Also present, at that time, were ----------------------------------------
3 Were you present on any occasion when Jack Profford, or Clarence Perea, or
any other supervisor of Valley Gold Dairies, made statements to you or any other
employee which gave, or reasonably might have given, you or any other employee
the impression that their union activities were being spyed [sic] upon by Valley Gold
Dairies management or supervisors. (Your attention is particularly called to dates
of October 24, 29, 1963: however, the question is meant to cover all times and
should be answered accordingly.)
Answer: --------------------------
If your answer to question #3 is "yes" please state what supervisor you heard
and tell who else was present.
The supervisors I heard in regard to question #3 were ______________________
----------------------------------------------
--------------------------------------------
Also present, at that time were ------------------------------------------
4. Have you previously given the information contained in the questions and
answers above to any other person in writing?
Answer:--------------------------
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT coercively or unlawfully interrogate our employees regarding
their union membership or activities, or threaten them with reprisal therefor.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Chauffeurs, Teamsters and Helpers Local Union
No 492, affiliated with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other labor organization, to
bargain collectively through representatives of their own choosing and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection as guaranteed in Section 7 of the Act, and to
refrain from any and all such activities.
VALLEY GOLD DAIRIES, INC.,
Employer.
Dated ------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
TMT TRAILER FERRY, INC. 1495
Employees may communicate directly with the Board's Regional Office 1015 Tijeras
Avenue NW., Albuquerque, New Mexico, Telephone No. 247-2520, if they have
any questions concerning this notice or compliance with its provisions.
APPENDIX D
To ALL EMPLOYEES OF VALLEY GOLD DAIRIES, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, I hereby notify you that:
I WILL NOT interrogate employees of Valley Gold Dairies, Inc. regarding their
union membership or activities in a manner constituting interference, restraint,
or coercion within the meaning of Section 8(a)(1) of the Act.
I WILL NOT in any like or related manner interfere with, restrain, or coerce
employees of Valley Gold Dairies, Inc. in the exercise of the right to self-
organization, to form or assist labor organizations, to join Chauffeurs, Team-
sters and Helpers Local Union No. 492, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection as guaranteed in Section
7 of the Act, and to refrain from any and all such activities.
JOHN EDWARD PRICE,
Respondent.
Dated------------------- By--------------------------------------------(Attorney for Valley Gold Dairies, Inc.)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office 1015 Tijeras
Avenue, NW., Albuquerque, New Mexico, Telephone No. 247-2520, if they have
any questions concerning this notice or compliance with its provisions.
TMT Trailer Ferry, Inc. and Associated Maritime Workers Local
No. 8, affiliated with the International Organization of Masters,
Mates & Pilots , AFL-CIO. Case No. 12-CA-2960. June 14,
1965
DECISION AND ORDER
On February 16, 1965, Trial Examiner William Seagle issued his
Decision in the above-entitled proceeding, finding that Respondent had
not engaged in the unfair labor practices alleged in the complaint, and
recommending that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the Gen-
eral Counsel filed exceptions to the Trial Examiner's Decision together
with a supporting brief, and the Respondent filed limited exceptions to
the Decision, and an answering brief to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
152 NLRB No. 147.