Ventre Packing Co., Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1967

163 N.L.R.B. 540 (N.L.R.B. 1967)

540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Picketing or causing to be picketed, or threatening
to picket or to cause to be picketed, Ershowsky Provision
Co., Inc., for any of the aforementioned objects, where
within the preceding 12 months a valid election under
Section 9(c) of the Act has been conducted among the said
employees and has not been won by Respondent.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post in conspicuous places in Respondent Union's
business offices, meeting halls , and all places where
notices to its members are customarily posted , copies of
the attached notice marked "Appendix A." 17 Copies of
said notice, to be furnished by the Regional Director for
Region 2, after being duly signed by official
representatives of Respondent, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered , defaced, or covered by
any other material.
(b) Furnish to the Regional Director for Region 2 signed
copies of the aforementioned notice for posting by the
Company , it willing , in places where notices to employees
are customarily posted . Copies of said notice, to be
furnished by the said Regional Director , shall, after being
signed by Respondent , as indicated , be forthwith returned
to the Regional Director for disposition by him.
(c) Notify the Regional Director, in writing, within 20
days from the date of this Decision, what steps
Respondent has taken to comply herewith."'
'v 'In the event that this Recommended Order is 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 is 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."
1" In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read: "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF PROVISION SALESMEN AND
DISTRIBUTORS UNION, LOCAL 627, AMALGAMATED MEAT
CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA,
AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the of National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL NOT picket, cause to be picketed, or
threaten to picket or to cause to be picketed,
Ershowsky Provision Co., Inc., an object being to
force or require the Company to recognize or bargain
with us as the representative of its employees or to
force or require said employees to accept or select us
as their collective -bargaining representative , and will
abstain thereafter from picketing for such objects for
a period of 12 months from September 1, 1966.
WE WILL NOT picket, cause to be picketed, or
threaten to picket or to cause to be picketed,
Ershowsky Provision Co., Inc., for any of the
aforementioned objects, while the Company is
lawfully recognizing in accordance with the Act any
other labor organization and a question concerning
representation of the Company's employees may not
appropriately be raised under Section 9(c) of the Act.
WE WILL NOT picket, cause to be picketed, or
threaten to picket or to cause to be picketed,
Ershowsky Provision Co., Inc., for any of the afore-
mentioned objects, where within the preceding 12
months a valid election which we did not win has
been conducted under Section 9(c) of the Act.
PROVISION SALESMEN AND
DISTRIBUTORS UNION,
LOCAL 627, AMALGAMATED
MEAT CUTTERS AND
BUTCHER WORKMEN OF
NORTH AMERICA, AFL-CIO
(Labor Organization)
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.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Fifth Floor,
Squibb Building, 745 Fifth Avenue, New York, New York
10022, Telephone PL-1-5500, Extension 852.
Ventre Packing Co ., Inc. and Truck Drivers &
Helpers Local 317 , International
Brotherhood of Teamsters , Chauffeurs,
Warehousmen and Helpers of America.
Case 3-CA-2918.
March 22,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On November 17, 1966, Trial Examiner Arthur E.
Reyman issued his Decision in the above-entitled
proceeding, finding that the Respondent has
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision together with a supporting statement.
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.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and supporting
statement, and the entire record in the case, and
hereby adopts the findings, conclusions, and
163 NLRB No. 47
VENTRE PACKING CO., INC. 541
recommendations of the Trial Examiner, as modified
herein:
1. The Trial Examiner found, and we agree, that
the Respondent violated Section 8(a)(1) of the Act
(1) by Plant Manager Thomas Houmiel's coercive
interrogation of employees concerning their union
membership activities and desires;' (2) by Houmiel's
warning and threatening employees that they would
be discharged if they became involved with a labor
organization or gave assistance or support to it; and
(3) by granting to its employees a wage increase to
induce them to refrain from becoming or remaining
members of Teamster Local 317.
2. The complaint alleged, and the Trial Examiner
found, that by discharging eight employees between
April8 and 11, 1966, because they had joined or
assisted the Union, the Respondent violated
Section 8(a)(3) of the Act. While we agree that the
Respondent violated the Act by terminating these
employees, we so find for the following reasons only:
The Respondent's hostility to the union
organization is clearly manifested by its widespread
unlawful interrogation of employees2 and other
unfair labor practices. In addition the Trial
Examiner credited testimony by employees
McGregor and Black to the effect that on April 11
and 12 Houmiel had told them, respectively, that
"you know I laid off them people because of the
Union," and that "he had to fire them [employees]
so they can't vote for the Union."
The Respondent's knowledge as to which of its
employees had engaged in union activity appears
from the record. The circumstance that between
March 30 and April 11, 1966, the Respondent
interrogated only employees who had signed union
authorization cards on March 30 seems more than a
mere coincidence, particularly in view of the fact
that the Respondent's total complement consists of
only about 30 to 35 employees. It is well settled that
the small size of an employer's plant affords a basis
for inferring employer knowledge of the union
activity of his employees.3 In view of the foregoing,
and Houmiel's statements to Black and McGregor
set forth above, there is ample reason to infer that
the Respondent had acquired knowledge as to which
of its employees had been engaging in union activity.
Between April 8 and 11, eight employees were
discharged. Significantly, it was on April 8 that the
Respondent was formally notified of the Union's
claim to be the collective-bargaining representative.
Almost immediately thereafter Monsour and
Buchanan, who were originally placed on temporary
layoff status, were permanently discharged, and six
other known union adherents were also terminated.
Finally, and perhaps most important, is the fact
that the eight persons discharged were all known
union sympathizers. While it is theoretically possible
that the Respondent could have fortuitously selected
for termination only those employees active in the
Union, commonsense and the laws of mathematical
probability indicate that this was highly unlikely.4
The Respondent contends that it did not discharge
employees because of any union activities, but that
because of a decline in business, a contraction of the
work force was required.5 However, even assuming
that the Respondent's economic condition required
that it reduce its employee complement,6 we are
convinced that the Respondent selected the
particular employees for termination because of
their adherence to the Union.
The Respondent asserts that the reason these
particular employees were discharged was that it
was trying to allow the employees with the greatest
seniority to continue work. The record shows,
however, that in several instances more recently
hired employees were retained while employees with
greater seniority were released. The Respondent
also asserts that these junior employees were
retained because their jobs could not be done by the
employees with greater seniority. There is nothing in
the record but this bare assertion to show that this is
true. In light of all the circumstances set forth above,
we find that the Respondent's explanation, as to why
these particular employees were selected for
discharge, is unpersuasive.
Where, as here, there is evidence of such great
mathematical improbability in the selection of
employees for discharge, of employer hostility
designed to frustrate union organization, and of
discharges timed immediately upon the
Respondent's receipt of the Union's request for
collective-bargaining discussions, the circumstances
require the conclusion that Respondent acted from
discriminatory motive, rather than economic
' It is clear that , under the circumstances herein, the
interrogations of employees Monsour, Rosenberger, Smorol,
Black, McGregor, Cappello, O'Dell, and Cotton were unlawful
2 In this connection we note that after interrogating certain of
the employees about their union activity, and although receiving
responses denying participation in organizational activities,
Houmiel discharged these employees He apparently did not
believe their disavowals, for the record reveals that when he
received an answer denying union activity, Houmiel placed a
question mark next to the name of the individual on an employee
list on his desk
s See, e g , Quest-Shon Mark Brassiere Co , Inc , 80 NLRB 1149,
enfd 185 F 2d 285 (C A 2), cert denied 342 U S 812, and Stokely
Foods, Inc , 91 NLRB 1267, enfd 193 F 2d 736 (C A 5)
" Syracuse Tank & Manufacturing Company, Inc, 133 NLRB
513 See also Uspensky, Introduction to Mathematical Probability
(McGraw-Hill, 1937), Chapter 1, cited in Syracuse Tank &
Manufacturing Company, Inc, 133 NLRB at 525, Heinrich
Motors, Inc , 153 NLRB 1575, 1580
Employees Monsour and Smith were discharged allegedly for
unsatisfactory work and the remaining six were discharged
allegedly for business reasons Smith was never warned that his
throwing spaghetti at other people in the plant , which Plant
Manager Houmiel later characterized as "goofing around," was
creating a disturbance or might lead to his discharge In this
connection , we note that Houmiel himself had engaged in the very
conduct for which he discharged Smith.
6 The Trial Examiner rejected this contention and found no
economic justification for the cutback although the
uncontradicted testimony indicates that Respondent 's business
declined in the second quarter of 1966 and the dischargees were
not replaced
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessity . Camco, Incorporated, 140 NLRB 361, 363,
365, enfd . in relevant part 340 F . 2d 803 (C.A. 5).
Accordingly , we find that the Respondent
discriminated in the selection of employees to be
discharged , thereby violating Section 8 (a)(3) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom , and to take certain
affirmative action in order to effectuate the policies
of the Act.
We have found that the Respondent
discriminatorily selected eight employees for
termination in April 1966. However, as noted above,
it appears from the record that the Respondent may
have been economically justified in terminating
some of its employees during April. While it is
possible that some of the discriminatorily terminated
employees might have been affected by such
nondiscriminatory reduction of personnel, the
record furnishes no basis for determining the order
in which they might have been terminated. Under
these circumstances, we shall order the Respondent
to offer, to the hereinafter named employees who
were unlawfully terminated in April and who have
not been recalled for employment, immediate and
full reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority and other rights and privileges, and, in the
event that there is insufficient work for all such
employees, to dismiss , if necessary , all persons who
were newly hired after the discriminatory
terminations in April . If there is not then sufficient
work for the remaining employees and those to be
offered reinstatement , all available positions shall be
distributed among them without discrimination
against any employee because of union activities, in
accordance with a system of seniority or other
nondiscriminatory basis. The Respondent shall
place those employees, if any, for whom no
employment is available after such distribution, on a
preferential list, with priority in accordance with a
system of seniority or other nondiscriminatory basis,
and thereafter offer them reinstatement as such
employment becomes available and before other
persons are hired for such work:
George Monsour
Charles Hildreth
Frank Smith
Maxine Buchanan
Georgianna Rosenberger
Elizabeth Smorol
Estella Black
Shirley McGregor
We shall also order the Respondent to make whole
the above -named employees , against whom it has
discriminated, for any losses they may have suffered
because of the Respondent's discrimination, by
payment to each of them of a sum of money equal to
the amount that he normally would have earned as
wages from the date of such discrimination to the
date of the offer of reinstatement, or placement on a
preferential list, as the case may be, less his net
earnings during said period, the backpay to be
computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth
Company, 90 NLRB 289, 291-294, and shall include
the payment of interest at the rate of 6 percent per
annum to be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
As it is possible, however, that one or more of
these employees might have been laid off or
discharged in a reduction of the work force even if
the Respondent had selected employees for
discharge on a nondiscriminatory basis, this
possibility will be taken into consideration in
determining the amounts of backpay due to these
employees in compliance with our Order herein.
In view of the nature of the unfair labor practices
committed, the commission by the Respondent of
similar and other unfair labor practices may be
anticipated. We shall therefore order that the
Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts the recommendations of the
Trial Examiner, and hereby orders that the
Respondent, Ventre Packing Co., Inc., Syracuse,
New York, its officers, agents, successors, and
assigns, shall take the following action:
1. Cease and desist from:
(a) Interrogating its employees concerning their
membership in or activities on behalf of the Union,
or making threats of reprisal or promises of benefits
because of such activity.
(b) Discouraging membership in the Union, or in
any other labor organization of its employees, by
discharging , laying off , or otherwise discriminating
against them in regard to their hire and tenure of
employment or any term or condition of
employment.
(c) Discriminatorily selecting employees to be
discharged, in violation of Section 8(a)(3) of the Act.
(d) In any other manner interfering with,
restraining , or coercing its employees in the exercise
of their right to self -organization, to form labor
organizations, to join or assist the above-named labor
organization , 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, and to refrain from
any or all such activities.
VENTRE PACKING CO., INC.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Offer George Monsour, Charles Hildreth,
Frank Smith, Maxine Buchanan, Georgianna
Rosenberger, Elizabeth Smorol, Estella Black, and
Shirley McGregor immediate and full reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make them whole in the manner
set forth in the section of this Decision entitled "The
Remedy."
(b) Notify each of the above-named employees, if
presently serving in the Armed Forces of the United
States, of his or her right to full reinstatement, upon
application, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all records necessary for determination of the
amount of backpay due under the Board's Order.
(d) Post at its principal office and place of
business and plant at 373 Spencer Street, Syracuse,
New York, copies of the attached notice marked
"Appendix A."7 Copies of said notice, to be
furnished by the Regional Director for Region 3,
after being duly signed by the Respondent or
its authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Mail a copy of the aforesaid notice to each of
Respondent's employees at the time copies of said
notice are posted at the Respondent's plant.
(f) Convene during working time all its
employees, at which time a responsible official of the
Respondent shall read to said employees the
contents of the notice, with written notice to the
Regional Director at least 48 hours in advance of the
time set for the reading of the notice.
(g) Upon request of the Union, made within
1 month of the date of this Decision, immediately
grant the Union and its representatives reasonable
access for a 3-month period to its bulletin boards and
all places where notices to employees are
customarily posted.
(h) Notify the Regional Director for Region 3, in
writing, within 10 days of the date of this Decision,
what steps have been taken to comply herewith.
7 In the event that this Order is enforced by a decree of a
United States Court of Appeals, the words "a Decision and
Order" shall be substituted for the words "a Decree of the United
States Court of Appeals Enforcing an Order "
APPENDIX A
NOTICE TO ALL EMPLOYEES
543
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT discourage membership in
Truck Drivers & Helpers Local 317,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization of our
employees, by discriminating in regard to their
hire or tenure of employment or any other term
or condition of employment.
WE WILL NOT interrogate our employees
concerning their membership in or activities on
behalf of the above Union or make threats of
reprisal or promises of benefits because of such
activity.
WE WILL NOT discriminatorily select
employees to be discharged.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
join or assist the above Union or any other labor
organization, to bargain collectively through
representatives of their own choosing, to engage
in concerted activities for the purposes of
collective bargaining or mutual aid or
protection, and to refrain from any or all such
activities.
WE WILL offer George Monsour, Charles
Hildreth, Frank Smith, Maxine Buchanan,
Georgianna Rosenberger, Elizabeth Smorol,
Estella Black, and Shirley McGregor immediate
and full reinstatement to their former or
substantially equivalent positions, without
prejudice to their seniority or other rights or
privileges.
WE WILL make whole the above-named
employees, against whom we have
discriminated, for any loss they may have
suffered because of our discrimination, by
payment to each of them of a sum of money
equal to the amount that he normally would
have earned as wages from the date of such
discrimination to the date of the offer of
reinstatement, or placement on a preferential
list, as the case may be, less his net earnings
during said period, with interest thereon at 6
percent per annum.
WE WILL, upon request from the Union,
permit reasonable access for a 3 -month period
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to our bulletin boards and all places where
notices to employees are customarily posted.
VENTRE PACKING CO.,
INC.
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify the above-named employees,
if presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
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.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Fourth Floor, The 120 Building, 120
Delaware Avenue, Buffalo, New York 14202,
Telephone 842-3100.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARTHUR E. REYMAN, Trial Examiner: Truck Drivers &
Helpers Local 317, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein sometimes called Local 317 or the Union,
on May 4, 1966, filed a charge against Ventre Packing Co.,
Inc., herein sometimes called the Company or the
Respondent, as a basis therefor alleging that the Company
has engaged in and is engaging in certain unfair labor
practices affecting commerce as set forth and defined in
the National Labor Relations Act, as amended, 29 U.S.C.
Sec. 151, et seq., herein called the Act. On the basis of the
charge so filed, the General Counsel of the National Labor
Relations Board, on behalf of the Board, by the Regional
Director for Region 3, pursuant to Section 10(b) of the Act
and the Board's Rules and Regulations, Series 8, as
amended, Section 102.15, issued a complaint and notice of
hearing against the Respondent, the complaint alleging
that the Company had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5), (1), and (3) of the Act.' The
' The relevant provisions of the National Labor Relations Act,
as amended (61 Stat 136, 73 Stat 519, 29 U S C Sec 151, et seq ),
are as follows
RIGHTS OF EMPLOYEES
Sec 7 Employees shall have the right to self-organization,
to form , join, or assist labor organizations , 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, and
shall also have the right to refrain from any or all of such
activities except to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment as authorized in
section 8(a)(3)
Respondent filed timely answer to the complaint,
effectively denying that it had engaged in or was engaging
in the unfair labor practices as set forth in the complaint.
Certain affirmative defenses were set up in the answer.
Pursuant to notice, this case was heard before me at
Syracuse, New York, on July 21, 1966, and was closed on
the following day.2 At the hearing each party was
represented by counsel and was afforded opportunity to
call, examine, and cross-examine witnesses, introduce
evidence relevant to the issues, present oral argument, file
proposed findings of fact and conclusions or both, and
submit briefs. A short memorandum waa submitted on
behalf of the General Counsel and another on behalf of the
Respondent.
Upon the whole record of the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT, VENTRE PACKING CO.,
INC.
The Respondent is, and has been at all times material
herein, a corporation duly organized under, and existing by
virtue of, the laws of the State of New York. During such
times, Respondent has maintained its principal office and
place of business at 373 Spencer Street, in the city of
Syracuse, State of New York, and is and has been at all
such times engaged at its plant at said location in the
manufacture, packaging, sale, and distribution of Italian
specialty food products and related products. During the
12-month period immediately preceding the issuance of
the complaint herein, the Respondent, in the course and
conduct of its business operations, purchased, transferred,
and delivered to its said plant food products and other
goods and materials valued in excess of $50,000, which
goods and materials were transported to said plant directly
from States of the United States other than the State of
New York.
The Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local 317 is, and has been at all times
material herein , a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges, and the answer denies, that the
Respondent laid off one employee on April 6 and three
employees on April? and discharged them on the
UNFAIR LABOR PRACTICES
Sec 8 (a) It shall be an unfair labor practice for an
employer-
(1) to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section 7,
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment to
encourage or discourage membership in any labor
organization
I Unless otherwise specifically noted, all dates hereinafter
mentioned are for the year 1966
VENTRE PACKING CO., INC. 545
following day, April 8. The complaint alleges that two
other employees were discharged on April 8 and two
others on April 11. As to each of these employees, the
complaint alleges further that since the dates of layoffs
and discharges, the Respondent has failed and refused,
and continues to fail and refuse, to reinstate these
employees to their former or substantially equivalent
positions of employment, and that such discharges were
and are in violation of Section 8(a)(1) and (3) of the Act.
The complaint alleges that the Respondent, by Plant
Superintendent Thomas Houmiel, coercively interrogated
its employees concerning their union membership,
activities, and desires on March 30 and April 8; that
Houmiel, on April 8 and three other stated dates and
places, warned and threatened employees that they would
be discharged if they did not refrain from becoming or
remaining members of a labor organization or giving
assistance or support to it; and further, that on April 1 the
Respondent granted to its employees at the plant wage
increases to induce them to refrain from becoming or
remaining members of Local 317, or from giving any
assistance or support to it.3
The affirmative defenses set up by the Respondent are,
in substance, that these employees were discharged for
various reasons, including misconduct; a complete
shutdown of one production line; and, further, that due to
a drop of $100,000 in volume of sales between the first
quarter of 1966 and the second quarter of 1966 the
Company has been unable to hire any new employee or
reinstate any discharged employee.
General Background
By letter dated April 8, 1966, directed to John Ventre,
Sr. (now deceased), handed to Kathleen Zimmerman, a
secretarial employee, Paul L. Gambacorto, as secretary-
treasurer of Local 317, informed the Company that
Local 317 represented the majority of employees in a unit
of drivers, warehousemen, and production employees;
requested that the Company meet and bargain
immediately for a contract covering the employees;
requested that the Company notify him when company
representatives would be available; and, finally, offered
"to satisfy you concerning our majority standing by an
independent card check by a mutually agreed upon
disinterested person." On the same day Paul C.
DeBernardis, as attorney for John Ventre, Sr., personally
and as president and sole stockholder of Ventre Packing
Co., Inc., replied by letter to Gambacorto advising, among
other things, that Ventre was then in Europe, was not
expected to return to the United States until early in
May 1966, and that he had notified a field examiner for the
Buffalo Regional Office of the Board of these facts. He
stated that any requests similar to those contained in
Gambacorto's letter addressed to Ventre would have to
await final decision and action by the latter on his return
from Europe.
3 The complaint sets forth that the Respondent on and after
April 8 refused to bargain collectively with the duly designated
representative of employees of the Respondent in an appropriate
unit, in violation of Section 8(a)(5) of the Act On the first day of
the hearing herein, counsel for the General Counsel advised me
that on the basis of facts determined after the issuance of the
complaint, Local 317 on April 8 had been able to obtain only
12 authorization cards out of a total complement of 23 employees
in the claimed unit and that , therefore, solely for the reason that
the Union had not established that it did represent a majority of
the employees on the crucial date, moved to withdraw the
On May 4, Local 317 filed and docketed with the
Regional Director for Region 3 a petition for certification
as representative of the Employer in a claimed appropriate
bargaining unit, not disputed by the Employer.
Case 3-RC-3906. On that day, the Union filed with the
Regional Director 10 signed forms of application for
membership in and authorization to the Union to act as
their collective-bargaining agent.4
The eight employees named in the complaint alleged to
have been laid off or discharged on named dates are as
follows: George Monsour signed an authorization card on
March 31, was laid off on April 6, and discharged on
April 8; Charles Hildreth signed an authorization card on
March 30, was laid off on April 7, and discharged on
April 8; Frank Smith signed an authorization card on
March 31, was laid off on April 7, and discharged on
April 8; Maxine Buchanan signed an authorization card on
March 30, was laid off on April 7, and discharged on
April 8; Georgianna Rosenberger signed an authorization
card on March 31, and was discharged on April 8;
Elizabeth Smorol signed an authorization card on
March 30, and was discharged on April 8; Estella Black
signed an authorization card on March 30, and was
discharged on April 11; and Shirley McGregor signed an
authorization card on March 30, and was discharged on
April 11.
There is in evidence (G.C. Exh. 2) a list of the names of
employees of the Company in the appropriate bargaining
unit on April 8. By stipulation of counsel at the hearing it is
shown there were 23 persons in the unit as of that date,
including each of the eight employees named above.
John Ventre, Jr., now president and sole owner and
stockholder of the Company, testified that on April 7 he
had occasion to leave Syracuse to travel to New York City,
stating that he was away from his Syracuse office from
April 3, was at the plant on April 7 and again departed that
day, returning to Syracuse on or about April 26.
Apparently between April 3 and 7 he was taking care of
other business interests in New York City and in New
Jersey at Little Ferry, near the Newark Airport. Although
his testimony is not precisely clear, I would find that on
the basis of his testimony he left Syracuse on April 3,
returned on April 6, left Syracuse on April 7, and was in
Europe until his return to Syracuse on April 26. He said
that he spent about a half hour at the Syracuse plant on
April?-this in answer to a question put to him by
company counsel. According to the testimony of Thomas
Houmiel, plant superintendent, Ventre traveled to New
York and to New Jersey on April 3, returned to Syracuse
on April 7, and conferred with him, Houmiel, about 20
minutes in the morning in Ventre's office. Houmiel said:
We talked about business. He said that if our business
didn't come through from these outlying districts that
we were expecting that I would have to shut down.
Houmiel said that this did not mean shutting down the
plant but the shutting down of one of two production lines.
allegations of the complaint alleging violations of Section 8(a)(5)
The motion for leave to withdraw the 8(a)(5) allegations (refusal
to bargain) set forth in the complaint was granted Consequently,
that issue is not contained within this case There is, however, left
standing the question of whether or not the layoffs and discharges
above mentioned were discriminatory and in violation of
Section 8(a)(3) and (1) of the Act
* Although the authorization card filled in by employee Angie
Cappello was not signed by her, it affirmatively appears from her
testimony that she did fill out this particular card
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He further testified that except for this 20-minute
conversation he did not see Ventre again until the latter's
return from Europe "the last of the month."
According to Houmiel he examined the morning mail
delivered on April 8 hoping to find orders from Pittsburgh,
Ohio, New York City, and New Jersey. He said he found
no orders as hoped for nor were there any orders from any
other source. He thereupon decided to shut down one
production line. On direct examination, he testified that he
was questioned by some employees at the morning
coffeebreak concerning a rumor they had heard that the
Company might shut down if business did not come in and
he told them, "I will see you later in the day and let you
know." As to those employees he did call to his office, he
said on direct examination:
Q. [By Mr. DeBernardis] I see. And these that you
called in you did let them know that you were going to
let them go because there was no business?
A. Right.
Q. You never told them that you were going to let
them go because of union activity?
A. No, sir.
Q. With the exception of those that you let go for
misconduct, or for whose work was unsatisfactory, all
other discharged employees were let go because of
lack of production on one line?
A. Correct.
Q. Several of these employees that you did not let
go walked out in sympathy with the strike?
A. That is correct.
He was asked by counsel for the Respondent whether he
ever at any time during the entire year of 1966 or before,
with respect to any of the employees of Ventre Packing
Company, attempted to coerce or intimidate or in any
fashion tell them that if they joined the Union he would fire
them, to which he replied, "No." His testimony was to the
effect that he decided to shut down one of the two
production lines on Friday, April 8, and actually did shut
down one line on Monday, April 11. In substance, his
testimony was to the effect, further, that within his
absolute discretion he closed down one production line
and because there was no established seniority system
plantwise or otherwise in effect he used his judgment and
kept employees with more or with less seniority at work as
he saw fit. At this time, he said, the plant was working on
an order involving about 4,000 cases of product but that
that was close to being filled.
The Layoffs and the Discharges
George Monsour: According to the recollection of this
employee, he was hired by the Company on or about
March 4 although it is hinted but not proved that company
records indicate that he was hired on or about March 17.
The date of hire is not important. He testified that he was
hired by Plant Superintendent Houmiel who at that time
told him it was year-round work, that there would be no
layoffs, and that the Company was contemplating putting
on a night crew. He was first assigned to work as a cook
and after 4 or 5 days was transferred to the warehouse and
put to labeling jars. Subsequently, he was transferred from
this job and assigned to stacking cases. On or about
March 23 he sustained an injury to his foot occasioned by a
tow car running over his toe, and was incapacitated for a
period of approximately 9 days until April 1. He was laid
off on April 6 and was discharged on April 8. He said that
on March 30 he was in the cafeteria and while there
Houmiel asked him if he had heard anything about a
union. He replied that he had not, that Houmiel' s mention
of it was the first time he had heard about it, whereupon
Houmiel told him "that at one time people tried to get a
Union in here, but that it didn't work and that even
Mr. Ventre-him and Mr. Ventre did not want a Union in
this place and if he found out that I had anything to do with
the Union coming in there, it could mean my job."
Monsour testified further that at or about 4:30 p.m.
Houmiel called him into the office, and told him that he
was laying him off because they were "going on short
production"; that he called Houmiel a liar and told him
"that this is the reason he is laying off, that it was because
they had been told the people wanted a Union and that this
was the second time he had made an accusation like that.
So-and when I asked him who else he was laying off, he
told me that it was none of my business." April 6 fell on a
Wednesday; Monsour said that Houmiel told him then to
come down Friday for his pay and not to come into the
plant until after 3 o'clock. On that day, according to
Monsour, he was at work labeling jars and about 10:30 that
morning he observed President Ventre and his son,
together with Houmiel, standing in a group. He said that
he reported to the plant on Friday, April 8, for his pay at or
about 3:10 p.m., that he asked Houmiel for his pay, and
that employees Maxine Buchanan, Charles Hildreth, and
Frank Smith were present; that after these employees had
received their checks and walked out,
then we went back in for our layoff slips. And
Mr. Houmiel, when I went in and asked him for
mine he told me that they had changed their minds; I
wasn 't laid off: I was fired: And the reason for
being fired was, when I asked him, "was my work
unsatisfactory."
He heard Houmiel tell Maxine Buchanan that her work
was unsatisfactory, and that when Frank Smith asked why
he was being discharged, Houmiel told him that it was
because he was "goofing around, goofing on the job."
On April 6, after work and when Maxine Buchanan,
Frank Smith, and he had left the plant proper and were
waiting for Hildreth to call a cab, Monsour testified that
they observed President Ventre going up the stairs,
supposedly to his office.
Counsel for the Respondent was unable to establish on
cross-examination that the injury to Monsour's foot was
caused by his negligence and that he was not required in
the course of his duties to use the electric forklift;
Monsour on his part testified that Houmiel had asked him
to move a skid of sauce and to use the forklift, which he
did, backing the machine into the board skid, when it went
over his foot, fracturing his right toe. Nor was it
established on cross-examination that Monsour was simply
"fooling around" with an empty truck.
Frank Smith- Houmiel hired this employee and
assigned him to cooking on or about March 11. According
to his testimony, he was at work in the plant on April 7
when he was informed by Houmiel that "he was going to
have to lay me off because they were running short on
production for a couple of weeks." He was told by Houmiel
to pick up his pay on the coming Friday after 3 o'clock. He
said that shortly after 3 p.m. on April 8, he was handed his
paycheck in the presence of Maxine Buchanan , George
Monsour, and Charles Hildreth. The group started walking
out toward the warehouse and then returned to ask
Houmiel for their layoff slips; that when Monsour asked
'for his, Houmiel said that Monsour was not laid off, he was
fired because his work was unsatisfactory. Smith then
VENTRE PACKING CO., INC. 547
asked Houmiel for his layoff slip and Houmiel replied,
"You're fired too," and when Smith asked him the reason
why Houmiel replied, "F')r goofing off on the job." The
group then left the plant building and saw President
Ventre walking up the stairs to his office at the front
entrance of the plant. Smith, like Monsour, was closely
questioned as to whether he could not be mistaken about
seeing Ventre at the plant on April 8 if it could be shown
that Ventre was in London, England, on that day. Smith
was sure that he did see Ventre at the plant at the time
stated. In connection with his discharge and the reason
therefor, Smith denied ever bringing firecrackers into the
plant , admitted he had "picked up macaroni and thrown it
at the girls" three or four times on different occasions, was
never reprimanded by Houmiel, and on redirect
examination said that other employees on occasion threw
macaroni or spaghetti.
Maxine Buchanan: Employed about the middle of
November 1965, this employee worked for the Company
until she was laid off on April 7 and discharged on April 8.
She testified that on April 7 about 5 p.m. Houmiel
informed her that he would have to lay her off because the
Company was cutting down on production and said,
"you're to give me a call in about 3 weeks." She requested
her layoff slip and Houmiel told her that he would give it to
her when she came in to pick up her pay on the following
day, Friday. She said that she did return on Friday,
April8, about 3:10 p.m., called at Houmiel's office,
received her pay, spoke to some of her coworkers in the
cafeteria for about 2 minutes, returned to the area where
Houmiel's office is located, encountered Monsour who
suggested that she accompany him to ask Houmiel why
she had been laid off, and that she did, first asking
Houmiel for her layoff slip, whereupon he told her that she
was not laid off but that she was fired. At the suggestion of
Monsour, she asked Houmiel the reason for her discharge
and he told her that her work was not satisfactory. She
corroborated the fact that after she left the plant building
in the company of Monsour, Smith, and Hildreth, Ventre
was observed "going up the stairs to his office." Shortly
thereafter, she entered the plant looking for Hildreth,
found him in Houmiel's office, and overheard Hildreth tell
Houmiel, "Tom, you're kidding. The reason you laid me
off was not because my work was unsatisfactory."
Georgianna Rosenberger: Rosenberger worked for the
Company during part of the year 1958 and later returned to
its employ in the latter part of July or the first part of
August 1965. She testified that on Friday, April 8, at
Houmiel's request, she stopped by his office about noon.
While in his office, according to her, he told her that he
had to ask her a question and had to know "if you are on
my side or if you're for the union." She replied that she
had never worked where there had been a union, knew
nothing about it, and would like to hear both sides; that he
replied, "Well, I'll have to put a question mark behind
your name." She said that Houmiel had a list of names on
a sheet before him and that her name was on the bottom of
the list. She testified further that about 4:30 p.m. she
stopped by for her pay, and Houmiel handed her her check
and said, "Jo, I have to let you go." Upon her request for a
reason for her discharge, and after remarking that she had
not told him that she was going to join the Union, he
replied, "Well, you have got us in doubt." He instructed
her to clean out her locker; she did go back in to get her
clothes from the locker and when she came back Houmiel
told her, "But when this thing blows over, Jo, call me and I
will hire you." She testified that after retrieving her
clothes from the ladies' locker room she saw Ventre in the
kitchen before an open refrigerator.
Elizabeth Smorol • Plant Superintendent Houmiel hired
Smorol on October 28, 1965, and she worked continuously
until April 8. On April 8, she testified, Houmiel requested
her to call his office; that she went there and Houmiel then
inquired of her concerning the Union:
Tom asked me how I felt about a union. And I told
him I didn't know what a union was , what they did in a
union. And he said, well, he says, "haven't you heard
the whispering about a union? " And I up and told
him-I told him, "Tom, if they whisper, I do not hear
them. If they do it during their lunch hour, I'm not
even here on their lunch hour to know what they are
talking about. I go out for lunch every day, and I don't
come back until almost one." I told him I'd have to
think about it. And he told me, "Go on back to work."
She said that Houmiel had a piece of white paper
containing a list of names and that she saw him make
"some mark after my name." She explained that she had
been deaf in one ear since she was 18 months old as a
result of an attack of measles and chicken pox, which
accounted for her telling Houmiel that if the employees
had whispered she could not have heard them. She
testified that when she received her pay at 5 p.m.,
Houmiel, when he handed her her check, said he would
have to let her go; she asked him "was it concerning my
work?"; and he replied no, that he thought she was a very
good worker, but there was not enough work and he had to
let her go.
Estella Black- Black first started work for the
Company on January 29, 1965, and worked until she was
discharged on April 11. She testified that on April 8,
Houmiel called her into his office and told her that he was
sorry but he had to let her go remarking, "I am sorry this
all had to happen." She then left the office. On the
preceding Friday, April 8, she testified that about 8 a.m.
Houmiel had called her into his office and asked her if she
knew anything about the Union; that she said she did not;
and that he said he hoped she would vote no, "so he wrote
`No' after my name." She testified that on Saturday,
April 9, she cleaned up his office and on that day, in the
cafeteria, she asked Houmiel where all the girls were and
why they did not come back; that he replied "there was a
little clause there; he had to fire them so they can't vote for
the Union." She testified further that on the morning of
April 11 she saw Ventre near the stockroom door. On that
day after 5 p.m., her quitting time, Houmiel called her into
his office and told her he was sorry but he had to let her go
and that he was sorry this all had to happen. At the
beginning of her testimony on direct examination , and her
subsequent answers, it was clearly apparent that Black
was at first confused concerning the dates of the
conversation she had with Houmiel the first time she met
with him at his request in his office. However, later direct
and more precisely on cross-examination , the times and
places of these conversations were clearly fixed.
Shirley McGregor: Plant Superintendent Houmiel hired
McGregor on or about August 28, 1965, and she continued
in the employ of the Company until April 11. During the
time of her employment she was assigned to various jobs,
first pasting boxes, then on a machine dumping bottles
and putting them through a conveyor, and occasionally
working on the packing line packing jars of spaghetti
sauce. She testified that about 8:10 a.m. on April 8 while
she was at work at her machine, Houmiel called her into
his office and that during the course of the conversation
295-269 0-69-36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hounuel questioned her concerning her knowledge of a
union. She testified:
He said, "Shirley, you know anything of a union?" I
told him I did not know. He said, "Shirley, you mean
to tell me you haven't heard anything of the union?" I
told him, "I don't know." Then I said, "Well, there
has been talk going around, Tom, of a union, but I
don't know nothing." He then said, "Well, Shirley,
you know I laid off them people there because of the
union " I turned around, and he said-and he said,
"You mean you haven't heard anything of a union?"
And I told him, "I don't know." He then put a
question mark after my name and said, "Shirley, I'll
put a question mark after your name because you
don't know." She said that he did then put a question
mark after her name on a piece of paper before him on
his desk.
She testified further that on April 11, about 4:55 p.m.,
Houmiel informed her that he was going to have to let her
go, giving no reason for her discharge. She said that on
that day, April 11, she, during her lunch hour, walked
down to the union hall in company with Estella Black and
during the walk between the plant and the union hall
observed John Ventre, III, the son of the president of the
Company, in the company of Mason, a supervisor, driving
slowly by. On cross-examination McGregor said that she
and Black spent their lunch hour together, part of which
was at the union hall, that she had eaten her lunch in Dee's
Diner, the purpose being to talk to Tony Cimilluca, a union
representative She said that they were in the union hall
just long enough to inquire for Cimilluca and to be told he
was at the diner. She said that she, together with other
employees who had been discharged, discussed the
situation with Cimilluca, the business agent for the Union.
Her testimony substantially corroborated that of Estella
Black in connection with their noon hour activities-that
they called at the union hall and they talked to Cimilluca.
Interrogation and Threats of Discharge
Angie Cappello, employed by the Company since about
the year 1958 was working for the Company on April 8
Although not too clear as to the particular date on which it
occurred, she testified concerning a conversation with
Houmiel in his office, where she had called at his request,
about 9:15 or 9.30 a.m., at which time, she testified,
Houmiel asked her if she knew if anybody was starting a
union , to which she replied, "I don't know anything about
it, Tom." Although not sure of the precise date, Cappello
did remember that the conversation occurred some 2 or 3
weeks prior to the day on which pickets appeared in front
of the Company's premises, which the record discloses
occurred on April 13 Notwithstanding Cappello admitted
failure to remember exact dates, I consider her to be a
credible witness and accept her testimony concerning the
conversation reported by her in which Houmtel made the
statement he is said to have made at the time.
Phyllis O'Dell was an employee of the Company on
April 8 until April 13, when she voluntarily left her job to
join the picket line. She testified that on April 8, about
I1 a.m , Houmiel called her into his office and asked her if
she would vote for the Union, to which she replied she did
5 Cotten also testified thai he observed President Ventre in the
warehouse on April 8 at a time when he was talking to Charles
Hildreth and that Monsour walked up and said, "You're still an
employee You'd better get back to work, because Mr Ventre is
down there " He placed the time as being sometime during the
morning of that day He said that at the time he saw Ventre he was
not know; that Houmiel then said in substance that the
Union would not be able to obtain benefits "or anything
like that, they wouldn't do anything for you"; that Houmiel
again asked her if she would vote for the Union and she
again replied she did not know. She observed that he wrote
the word "No" opposite her name on a slip of paper before
him on his desk. On cross- examination she iterated that
she did not quit-"I just walked out on to the picket line."
Richard Cotten, employed either in late August or the
beginning of September 1965, was at work on April 8, his
job being in the room where the production lines were
located. About 4 p.m., Houmiel called him into his office,
he said, and asked him if anybody had approached him
and talked to him concerning a union. Cotten told him no.
He testified further:
Well, he [Houmiel] explained to me that the Union
couldn't benefit us because in the end we'd be making
less money after we got through paying our union
dues and fees. And he said Mr. Ventre didn't want the
Union in there and the people didn't want a union
because they had one-they had had a vote
before-and he asked me would I vote for the Union.
And I told him no. And he said, "Fine. That's what I
wanted to know." Something like that-and he told
me he was trying to find out who was on his side.
Cotten said that Houmiel wrote "No" opposite his name
on a sheet of paper held by Houmiel. Cotten recalled that
Houmiel "said something about he thought to get rid of
some main ones starting the Union or trying to start a
union , something like that. I don't know the exact words."5
Cotten first observed pickets outside the plant on April 13,
at which time he walked off his job and joined the picket
line.
John W. Gleason, who started work for the Company in
February 1966, worked until April 12. He testified to a
conversation with Houmiel on April 12 in the backroom of
the packing plant at the machine where he was working.
He said that Houmiel asked him how he was doing, to
which, he said, he replied, "at the present time I am doing
all right, I said, but where is the help?" Cotten said that
Houmiel replied that "he had to leave them go because
they were all getting messed up with the Union." He
instructed Gleason to "take it easy and do the best you
can." Gleason testified that on Monday, April 11, while he
was at work, he saw Supervisor Sully Mason and Ventre:
They have a mechanic there, Sully-I don't know his
last name-and he met Mr. Ventre right in front of my
machine. And Mr. Ventre said he was going to New
York And Sully asked him if he was going with him.
And Mr. Ventre says, No. So they have some more
conversation, which I did not overhear, and
Mr. Ventre turned around and went back the way he
come from, towards his office; and Sully walked over
to my machine.
He said that on the morning of April 13 he had an
appointment which took him away from the plant; that
when he went to work there that morning there was
picketing in front of the plant and that he did not return to
work because he would not cross the picket line. On cross-
examination Gleason said that he had never "signed up for
the union," had never been approached to sign up for the
Union or asked to sign an application for membership in
talking to Mason , a supervisor , that Ventre walked into the room
and passed him and he, Cotten, got up to leave He said that
before he left he heard Ventre ask Mason something about New
York "And he handed him-put two tickets of some kind on a
table, a work bench, and then talked a little while and then left "
VENTRE PACKING CO., INC.
Local 317, had never had any conversation with anyone
inside the plant concerning the Union or conversations
outside the plant , had never expressed himself to any of
his fellow employees concerning the Union 's activity, had
never observed any employee of the Company fill out an
application for membership in the Union , and specifically
denied that either Hildreth or Monsour had approached
him, or that he had ever been threatened by Houmiel that
if he joined the Union he would be fired. He is not a
member of the Union. It is clearly apparent that he had a
complete lack of interest in union activities and left his job
simply because he refused to cross the picket line.
The Wage Increases
The complaint alleges that the Respondent granted to
its employees at the plant wage increases on April 1, 1966,
to induce them to refrain from becoming or remaining
members of Local 317 or for giving any assistance or
support to it. That these wage increases were made, to
become effective as of April 1, is a fact not in dispute.
There is in evidence by agreement of counsel an exhibit
(G.C. Exh. 9), a list showing the names of the employees
who received such wage increases, to be effective as of
April 1. Included are the names of Charles Hildreth,
Elizabeth Smorol, Estella Black, Maxine Buchanan, and
Shirley McGregor, out of a total of 11 hourly rated
employees. The names of four salaried employees also
appear on this list.
The Respondent offered no evidence as to its reason of
the granting of these wage increases; whether they were
merit increases , increases made because of past custom or
usage of the Company, or for any other reason. Coming at
the time it did, this action of the Company raises a strong
presumption, within the circumstances of this case, that
the increases could have been given to induce the
employees to refrain from becoming or remaining
members of the Union.
The Respondent's Affirmative Economic Defense
The lack of expected orders said to have caused the
shutdown of one production line has been discussed
above. In addition, as an economic defense, the
Respondent claims that due to a drop of $100,000 in sales
between the first quarter of 1966 and the second quarter of
1966, the Company has been unable to hire any new
employees or reinstate any discharged employees.'
Other than the testimony of Houmiel to support this
assertion, no evidence was produced by way of company
records or any corroborative testimony to show this
defense to be grounded on fact. We have only the
statement of Houmiel in support of this affirmative
defense as set out in the answer to the complaint.
In the memorandum submitted on behalf of the
Respondent after the hearing, it is contended that there is
no controversy as to the fact of the decrease in sales of
Respondent's business in the first quarter of 1966 in the
amount of $100,000; and that this, together with the
testimony of Houmiel with regard to the lack of orders in
the first week of April, certainly afforded the Respondent
just cause for the discharge of certain employees on
April 8. The burden of proof in respect to decrease of
business certainly falls on the Respondent and not on the
General Counsel. The Respondent has failed to carry the
549
burden of proof in this respect. The failure of a litigant to
adduce evidence particularly within its possession
warrants the inference that such evidence, if adduced,
would not have been favorable. Interstate Ctrcutt v. U.S.,
306 U.S. 208; N.L.R.B. v. Conlon Bros. Mfg. Co., 187 F.2d
329 (C.A. 7); N.L.R.B. v. A.P.W. Products Co., 316 F.2d
899 (C.A. 2).
The effort of counsel for the Respondent at the hearing
to break down the credibility of most of the employee
witnesses called by the General Counsel failed even
though, in certain instances, there are inconsistencies in
testimony. Generally speaking, I consider that many of the
answers elicited from witnesses on cross-examination
strengthen their testimony rather than weaken it, in that
such inconsistencies were minor and trivial and can easily
be understood. The witnesses obviously had not been
coached but were testifying from their own independent
recollection of the events which transpired. Further than
this, the argument of Respondent 's counsel at the hearing
that because some employees had told Houmiel they had
not signed union authorization cards, when in fact they
had signed them , is an indication that their testimony was
not reliable, works against the Respondent. The
interrogation of employees by Houmiel was per se
unlawful, and the Board has long held, in cases too
numerous to be cited, that a respondent employer may not
take advantage of untruthful answers given by the
employee when unlawfully interrogated concerning union
activity or interest.
Houmiel , the plant superintendent and the main and
only witness called by the Respondent at the hearing, was
content only to categorically deny that he had interrogated
any employee concerning his or her membership in or
activities on behalf of the Union and that he had
discharged any employee by reason of his or her union
sympathies or activities. He did not deny that he had
spoken to individual employees according to the testimony
given by them as to the several conversations between
them and him. Considering the demeanor of the witnesses,
together with the timing of the occurrences complained of
against the Respondent, I have no reason to doubt the
credibility of any of the 10 employee witnesses called to
testify by the General Counsel.
It is clearly apparent that on April 8 the Respondent had
full knowledge of the Union' s claim and interest, as
evidenced by the letter of its attorney to the Union. I credit
the testimony of Monsour, not specifically denied, that
Houmiel questioned him on March 30. The Respondent at
no time accepted the offer of the Union in its letter of
April 8 to agree to a card check being made to determine
the union claim of a majority in the claimed bargaining
unit . There is strong evidence contained within the record
to show that President Ventre was in and around the plant
on April 8, the day the secretary-treasurer of Local 317
delivered his letter to the Company and the day on which
the Company's attorney replied to that letter.
Parenthetically, it may be noted that the Respondent
failed to offer anything other than oral testimony to show
that Ventre actually was not at the plant on April 7 and 8.
The time pattern of events indicates that almost
immediately upon gaining knowledge of the interest of
some employees in the Union, the Employer laid off
Monsour on April 6 and Hildreth, Smith , and Buchanan on
April 7, and discharged these four employees together
with four others on April 8. On March 30, Monsour was
6 The Respondent concedes that no laid-off or discharged
employee has been requested to return to work since the strike
began on April 13
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questioned by Houmiel concerning union activities; and
Rosenberger , Smorol , Black, McGregor , Cappello, and
Cotten were questioned on April 8.
In summary , I discount the economic defense set up by
the Respondent for lack of sufficient proof of company
instability and the failure of the Respondent to present the
best evidence of its claim of inability to continue the
employees at work because of lack of orders and loss of
business . In regard to the questions of crediblity raised by
the Respondent , I have endeavored to reconcile what I
consider insubstantial conflicting evidence and to draw
such inferences as the evidence reasonably supports.
N.L.R.B . v. Universal Camera Corporation , 179 F.2d 749,
754 (C.A. 2), vacated and remanded 340 U.S. 474; N.L.R.B.
v. West Point Mfg. Co. (Lanett Mill), 245 F.2d 783, 785
(C.A. 5); N.L.R.B. v. United Brotherhood of Carpenters
and Joiners of America, Local 517, AFL (Gil Wyner
Construction Co.), 230 F . 2d 256, 259 (C.A. 1).
The discharges of the employees , coming when they did,
presumptively would discourage membership in or
activities on behalf of the Union . For the purposes of
Section 8(a)(3) of the Act, the law is settled that conduct
carries its own indicia of unlawful intent where the
"natural consequence" of the employer ' s action is a
discouragement (or encouragement ) of union membership.
The Radio Officers' Union of the Commercial Telegraphers
Union, AFL (A.H. Bull Steamship Company) v. N.L.R.B.,
347 U.S. 17, 45; Local 357, International Brotherhood of
Teamsters , etc. (Los Angeles -Seattle Motor Express) v.
N.L.R.B., 365 U.S. 667, 675; N.L.R.B. v. Erie Resistor
Corp., et al., 373 U.S. 221, 228.
I find that the discharge of Monsour was motivated by
his activity on behalf of the Union . An employer violates
Section 8 (a)(3) and (1) of the Act by discharging an
employee to discourage union membership and activity
even though there may also exist valid reasons for
discharge . N.L.R.B. v. Mid- West Towel and Linen Service,
Inc., 339 F.2d 958 (C.A. 7); N.L.R.B. v. Symons
Manufacturing Co., 328 F.2d 835 (C.A. 7); N.L.R.B. v. The
Howe Scale Company, 311 F.2d 502 (C.A. 7).
It further is found that the Respondent violated
Section 8(a)(1) through Houmiel by coercively
interrogating employees concerning their union
membership and activities , and by threatening reprisals
for such activities in violation of Section 8(a)(1) of the Act.
N.L.R.B. v. Exchange Parts Company , 375 U.S. 405. It
further is found that the Respondent violated
Section 8 (a)(1) of the Act by granting wage incieases at the
time it did for the purpose of discouraging membership in
the Union . The Radio Officers' Union v. N.L. R.B., supra;
N.L.R.B. v. Exchange Parts Company , supra ; N.L.R.B. v
Hoffman-Taff, Inc., 276 F.2d 193, 198 (C.A. 8); N.L.R.B. v.
Crown Can Company, 138 F.2d 263, 267 (C.A. 8), cert.
denied 321 U.S. 769.
Returning to the question of whether the Respondent
was justified in the discharges of six of the eight
employees , it is possible that it could be argued on behalf
of the Respondent that the evidence adduced by it in this
respect is uncontradicted. Such an argument in this case
would be specious . In Bon Hennings Logging Cc. v.
N.L.R.B. , 308 F.2d 548 , 554 (C.A. 9), the court wrote in
part:
. the Supreme Court in [N.L.R.B. v. Walton
Manufacturing Company, et al., 369 U.S. 404] has
laid to rest , quite properly , any contention that the
uncontradicted evidence of an employer as to his
motive for a certain course of action must be accepted
by the Board . No one but the employer or his
confidants are ordinarily in a position to give direct
evidence of his motive , and, to understate the case, it
is unlikely that unfavorable evidence would be
forthcoming . Much so-called "uncontradicted"
evidence is subject to conflicting inferences which
may result from the evidence itself or the attendant
circumstances . The duty to choose between such
inferences and to assess weight in credibility is vested
in the trial examiner , not the reviewing court.
The Board may properly consider the context of
surrounding circumstances in interpreting the effect of an
employer's acts or words . N.L.R.B. v. Kropp Forge Co.,
178 F.2d 822 (C.A. 7), cert. denied 340 U.S. 810; Revere
Camera Co. v. N.L.R.B., 304 F.2d 162 (C.A. 7).
The preponderance of the evidence herein proves that
the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act.
Concluding Findings
It is found that the Respondent by coercively
interrogating its employees at its plant concerning their
union membership, activities, and desires, by warning and
threatening employees that they would be discharged if
they did not refrain from becoming or remaining members
of a labor organization or giving any assistance for support
to it, and by granting to its employees wage increases on
April 1, 1966, to induce them to refrain from becoming or
remaining members of Local 317, or from giving any
assistance or support to it, has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
By laying off George Monsour, Charles Hildreth, Frank
Smith, and Maxine Buchanan and by discharging these
named employees and Georgianna Rosenberger, Elizabeth
Smorol, Estella Black, and Shirley McGregor, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
These unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, it will be recommended that
it cease and desist therefrom, and that it take certain
affirmative action designed to effectuate the policies of the
Act. It has been found that the Respondent laid off George
Monsour on April 6, 1966, and Charles Hildreth, Frank
Smith, and Maxine Buchanan on April 7, 1966, and
discharged these four employees, together with
Georgianna Rosenberger and Elizabeth Smorol on April 8,
and Estella Black and Shirley McGregor on April 11, 1966.
Accordingly, it will be recommended that the Respondent
offer George Monsour, Charles Hildreth, Frank Smith,
Maxine Buchanan, Georgianna Rosenberger, Elizabeth
Smorol, Estella Black, and Shirley McGregor immediate
and full reinstatement to their former or substantially
AMERICAN RIVER CONSTRUCTORS
equivalent positions, without prejudice to their seniority or
other rights or privileges, and make them whole for any
loss of pay suffered by reason of the discrimination by
payment to each of them of a sum of money equal to that
which he or she would have earned as wages from the date
of the discrimination to the date of the reinstatement, less
his or her net earnings during such period in accordance
with the formula prescribed in F. W. Woolworth
Company, 90 NLRB 289, together with interest on such
sum, such interest to be computed in accordance with the
formula prescribed by the Board in Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the folllowing:
CONCLUSIONS OF LAW
1. Ventre Packing Co., Inc., is, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Truck Drivers & Helpers Local 317, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
3. By laying off and discharging George Monsour,
Charles Hildreth, Frank Smith, and Maxine Buchanan and
by discharging them and Georgianna Rosenberger,
Elizabeth Smorol, Estella Black, and Shirley McGregor,
the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
4. By granting to its employees increases in wages on
April 1, 1966, the Respondent engaged in an unfair labor
practice within the meaning of Section 8(a)(1) of the Act.
5. The Respondent, since the dates of the layoffs and
discharges described in section III, above, by failing and
refusing and continuing to fail and refuse to reinstate said
employees to their former or substantially equivalent
position of employment, has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
American River Constructors and K.W.
Sherrod . Case 20-CA-3795.
March 22,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND ZAGORIA
On August 26, 1966, Trial Examiner James R.
Webster issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in unfair labor practices as 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 General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Respondent
163 NLRB No. 67
551
filed an answering brief to the General Counsel's
exceptions to the Trial Examiner's Decision.
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.
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 briefs, and
the entire record in this case, and finds merit in the
General Counsel's exceptions. Accordingly, the
Board adopts the findings of the Trial Examiner only
to the extent that they are consistent with the
decision herein.
The complaint alleges that the Respondent
violated Section 8(a)(3) and (1) of the Act by refusing
to employ K.W. Sherrod on August 25, 1965,
because he had engaged in union and other
protected activities.
As described more fully in the Trial Examiner's
Decision, Sherrod, in June 1964, was working as a
driver at the Respondent's French Meadows jobsite.
At all relevant times Respondent, through a chapter
of Associated General Contractors, and Local 150,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, hereinafter referred to as the Union, were
parties to a collective-bargaining agreement
covering Respondent's employees in the area
involved in this case. As a result of protests from a
number of its drivers, Respondent on June 17
appointed Sherrod as working foreman. The drivers,
however, felt that a nonworking foreman would be
preferable and, at a union meeting on July 14, Union
Steward McAdams proposed that employees refuse
to work until a nonworking foreman was appointed.
Sherrod then addressed the drivers, reminding them
of the no-strike clause in the agreement and
suggesting that there would be less "trouble" if they
offered to quit if their demands were not met. The
drivers accepted Sherrod's advice and they
approached the Respondent's Superintendent Jiles.
Acting as the drivers' spokesman, Sherrod explained
to Jiles the nature of their complaint; he threatened
that the drivers would quit unless they received
orders only from their own foreman in the future.
Jiles agreed that from then on only he or their
foreman would give them orders, and the drivers
returned to work.
On July 25, the Respondent demoted Sherrod
from his position as working foreman and
transferred him from French Meadows to Oxbow, a
less desirable site. Sherrod continued to work for
Respondent at various jobsites between July and
December 22, at which time he was laid off because
of lack of work. Early in January 1965, Respondent
sent Sherrod a termination slip, indicating for the