Vita Foods

National Labor Relations Board - Board Decisions

Feb 28, 1962

135 N.L.R.B. 1357 (N.L.R.B. 1962)

VITA FOODS 1357
Thomas J. Aycock, Jr., an individual , d/b/a Vita Foods and
Truckdrivers , Warehousemen & Helpers Local Union No. 512,,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America . Case No. 12-CA-2001.
February 28, 1962
DECISION AND ORDER
On November 13, 1961, Trial Examiner A. Bruce Hunt issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. He further found that the Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint
and recommended that such allegations be dismissed. Thereafter the
Respondent filed exceptions to the Intermediate Report and a support-
ing brief.
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following addition.
In adopting the Trial Examiner's finding that Respondent violated
Section 8(a) (4), (3), and (1) by transferring John Mathis to a less
desirable job, we rely on the fact that Mathis was transferred because
he attended a representation case hearing before the Board for the
purpose of giving testimony as a union witness, even though he did not
in fact give testimony.'
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Thomas J. Aycock, Jr., an
individual, d/b/a Vita Foods, Jacksonville, Florida, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Truckdrivers, Warehousemen
&' Helpers Local Union No. 512, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, or in any
other labor organization of his employees, by transferring any of his
employees from one job to another because of their concerted or union
1 See Dal-Tex Optical Company , Inc., 131 NLRB 715.
135 NLRB No. 133.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities, or in any other manner discriminating in regard to their hire
or tenure of employment or any term or condition of employment.
(b) Transferring or otherwise discriminating against any employee
because he has attended a hearing before the Board for the purpose
of giving testimony under the Act.
(c) Interrogating and threatening employees concerning union
activities in a manner constituting interference, restraint, or coercion
in violation of Section 8 (a) (1) of the Act.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer John Mathis immediate and full reinstatement to his job?
as capping machine operator, or to a substantially equivalent position,
without prejudice to his seniority or other rights or privileges, and
make him whole for any loss of pay he may have suffered as a result
of the Respondent's discrimination against him, in the manner set
forth in "The Remedy" section of the Intermediate Report.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination 'and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records, as set forth in "The Remedy" section of the Inter-
mediate Report.
(c) Post at his place of business copies of the notice attached
hereto marked "Appendix" 2 Copies of said notice, to be furnished
by the Regional Director for the Twelfth Region, shall, after being
duly signed by the Respondent, be posted by him immediately upon
receipt thereof, and be maintained by him for at least 60 consecutive
days thereafter in conspicuous places, including all places where
notices to employees customarily are posted. Reasonable steps shall
be taken by the Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT is FURTHER ORDERED that the complaint be dismissed insofar as it
alleges that the Respondent (1) discriminated against John Mathis
other than by the transfer to the job of cook's helper, (2) discrimi-
nated against Steve Barner in any manner, (3) threatened to dis-
charge Barner because of Barner's appearance at the hearing in Case
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
VITA FOODS 1359'
No. 12-RC-1200 (not published in NLRB volumes), and (4) threat-
ened to discharge Lonnie Mitchell because of Mitchell's refusal to
indicate whether he had signed a union card.
CHAIRMAN MCCULLOCH and MEMBER LEEDOM took no part in the.
consideration of the above Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
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, we hereby notify our employees that :
WE WILL NOT discourage membership in Truckdrivers, Ware-
housemen & Helpers Local Union No. 512, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or in any other labor organization of our employees, by-
transferring any of our employees from one job to another be-
cause of their concerted or union activities, or in any other manner
discriminate in regard to their hire or tenure of employment or-
any term or condition of employment.
WE WILL NOT transfer or otherwise discriminate against any-
employee because he has attended a hearing before the Board_
for the purpose of giving testimony under the Act.
WE WILL NOT interrogate or threaten our employees concerning-
union activities in a manner constituting interference, restraint,,
or coercion in violation of the Act.
WE WILL NOT in any other manner interfere with, restrain,.
or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Truck--
drivers, Warehousemen & Helpers Local Union No. 512, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, or to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities.
WE WILL offer John Mathis immediate and full reinstatement
to his job as capping machine operator, or to a substantially-
equivalent position, without prejudice to his seniority or other-
rights or privileges.
WE WILL make whole John Mathis for any loss of pay he may
have suffered as a result of our discrimination against him.
All our employees,are free to become or remain, or to refrain from-
becoming or remaining, members in good standing of Truckdrivers,,
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehousemen & Helpers Local Union No. 512, or any other labor
organization.
THOMAS J. AYcocK, JR., D/B/A VITA FooDs,
Employer.
Dated---------------- By-------------------------------------
THOMAS J. AYCOCK, Jr.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional
Office (112 East Cass Street, Tampa 2, Florida; Telephone Number,
Central 6-9660), if they have any question concerning this notice or
compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding involves allegations that the Respondent , Thomas J. Aycock, Jr.,
an individual , d/b/a Vita Foods , violated Section 8(a)(1), (3 ), and (4) of the
National Labor Relations Act, as amended , 61 Stat. 136, 73 Stat . 519. On July 26,
27, and 28, 1961 , I conducted a hearing at Jacksonville , Florida, at which all parties
were represented . The Respondent's motions to dismiss the complaint are disposed
of in accordance with the determinations below.
Upon the entire record , and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE RESPONDENT
The Respondent Aycock is engaged at his plant in Jacksonville , Florida, in proc-
essing and selling jellies, preserves, juices , salad dressings , and other food products.
During 1960, the Respondent purchased goods and materials valued in excess of
$50,000 which were shipped to him directly from points outside the State of
Florida. I find that the Respondent is engaged in commerce within the meaning of
the Act.
II. THE UNION
Truckdrivers , Warehousemen & Helpers Local Union No. 512, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, is
a labor organization which admits to membership employees of the Respondent.
HI. THE UNFAIR LABOR PRACTICES
A. The issues
The complaint alleges, and the Respondent denies, that during March and April
1961 the Respondent (1) interrogated and threatened employees concerning whether
they had designated the Union to represent them; (2) transferred two employees,
John Mathis and Steve Barrier, to more arduous and less desirable tasks than they
had been performing because they appeared under subpena at a representation hear-
ing in Case No. 12-RC-1200; (3) threatened Barner with discharge because of his
appearance at that hearing; and (4) failed to assign Mathis and Barner to work on
a Saturday because of their appearance thereat.
B. Interrogation of employees
The Respondent has about 25 employees . During February 1961 organizational
activities began . Some of the employees signed union cards . On March 29, William
E. Fowler, a representative of the Union , telephoned Respondent Aycock and said
that a majority of the employees had designated the Union to represent them..
Fowler outlined the Board 's procedure in representation cases, and Aycock sug-
gested that such procedure be followed. Fowler asked if Aycock would like to
have copies of Fowler 's communications to the Board , and Aycock replied in the
VITA FOODS 1361
affirmative.' On the same day, Fowler wrote to Aycock, saying inter alia that the
Union possessed majority status and asking for a conference on March 31. Fowler
enclosed a copy of a letter which he had written that day to the Board's Regional
Office concerning a petition for an election.
On March 30, Aycock received Fowler's letter and showed it to John Chancellor,
the plant superintendent. Chancellor, as he testified, suggested to Aycock that they
"find out for" themselves whether the Union had majority status. Chancellor pre-
pared a typewritten interrogatory for each employee to answer. It read:
I, [name] an employee of Vita Foods, ---------------- partitioned [sic]
(have or have not)
the [Union] to represent me as my bargaining agent with this company.
--------------------------
(Signature)
On March 31 Chancellor attached the interrogatories to the timecards of the em-
ployees. Most employees responded negatively and, insofar as appears, none re-
sponded affirmatively. Several declined to answer, and reattached the interrogatories
to the timecards. Thereafter Chancellor talked with those employees individually
and insisted that they answer. In talking with Mathis, Chancellor asked why`he"had
not answered, and Mathis, who had signed a union card, replied: "No "reason."
Chancellor gave the interrogatory to Mathis and said that it had to be answered.
Later Mathis returned it, still unanswered, and said to Chancellor that it was "unfair
the way that" management was "going at it." Chancellor wrote on the interrogatory;
"Refused to sign." He wrote like words on the interrogatories of Barrier and Lonnie
Mitchell who had designated the Union to represent them and who had adhered to
their refusals to answer the interrogatories.
Whit Marcus, an employee, cannot read or write. His union card was signed for
him by his daughter. When Chancellor spoke to him about his not having answered
the interrogatory, he explained that he could not write. Chancellor said to him,
"We don't want [the] Union." When Chancellor spoke with Elijah Riley, who had
signed a union card, Riley said that he had not answered the interrogatory because
he did not know its meaning. Chancellor wrote on it, "Refused to sign," but then
erased the words when Riley said that he would answer the interrogatory in order to
avoid getting "into trouble." Riley answered the interrogatory in the negative?
The Respondent, in defending the allegation that Chancellor's interrogatories and
oral questions of employees violated Section 8(a) (1), asserts in his brief that the
interrogatories were prompted by the Union's demand for recognition and were
unaccompanied by coercion. The Respondent relies upon Blue Flash Express,
Inc., 109 NLRB 591. For several reasons, however, I believe that the de-
fense is not meritorious. First, Blue Flash is inapposite because Chancellor did not
assure any employees, with the possible exception of Riley, that they would not be
subjected to reprisals for engaging in union activities. Frank Sullivan and Company,
133 NLRB 726. Second, Blue Flash is inapposite also because Chancellor's in-
quiries of employees were "not solely undertaken for the purpose of informing the
Respondent with respect to whether or not he should deal with the Union." Frank
Sullivan, supra. When Chancellor and Aycock decided to submit interrogatories to
the employees, Aycock knew that the Union's claim of majority status would not be
resolved by the interrogatories but, instead, in a representation proceeding initiated
by the Union's petition to the Board. Cf. Lincoln Bearing Company, 133 NLRB
1069. Third, an employer's right under Blue Flash to inquire, in limited cir-
cumstances, whether employees have designated a labor organization to represent
them is not an unrestricted right to press the inquiry upon employees who prefer
to maintain silence. Here Chancellor's insistence that some employees answer the
' These findings are based upon Fowler 's uncontradicted testimony . Aycock was not a
witness
2 The findings concerning the remarks between Chancellor and employees when Chancellor
spoke with them individually are based upon ' the employees ' testimony Chancellor
acknowledged having, talked with ' them , having written "Refused to sign " on inter-
rogatories , and hating erased those words on Riley ' s interrogatory . Chancellor testified,
however , that -'he merely asked 'the employees to sign the interrogatories and that he did
not threaten them With respect to whether Chancellor assured Riley that there would
be no reprisal , Riley testified that Chancellor did not tell him that his job would-not-lid
affected "one way or another" but that Chancellor did say "something like that " It does
not appear from Chancellor ' s testimony that he'gave such assurance to Riley or anyone
else. ' 1,
634449-62--vol 135-87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrogatories, after those employees already had refused, constituted repeated in-
valid interrogation. The employees upon whom Chancellor pressed the inquiry
constituted only a minority. Other employees, a majority, had answered the inter-
rogatories in the negative and, therefore, there could have been no legitimate reason
for Chancellor to inquire further of anyone. In summary, I find that Chancellor's
conduct was violative of Section 8(a)(1).
C. Barner's and Mathis' attendance at the hearing in Case No. 12-RC-1200
As recited, on March 29 Fowler wrote to Aycock and to the Board's Regional Office.
Fowler's petition for an election was docketed in that office on March 31 and the
conference which he had requested with Aycock for the same day was not held.
The hearing in the representation case was set for the afternoon of April 27.
Two days or so earlier, Barner and Mathis were subpenaed as witnesses for the Union.
Mathis, upon receipt of his subpena, asked Chancellor for permission to be absent
from work during the afternoon of April 27, saying that he had "some business
to take care of." Chancellor granted the request. With respect to Barner, there
is a conflict in the testimony concerning whether he also asked Chancellor for per-
mission to be absent and whether Chancellor refused the request. Earner so testified,
but Chancellor denied that Barner had asked for such permission. In any event, it
is clear that Barner did not tell Chancellor that he had been subpenaed or that he
wished to attend the hearing and, insofar as appears, Chancellor was unaware of the
reason why Barner and Mathis wished to be absent from work.
On April 27, about noon, Mathis punched his timecard and left the plant. Barner
left too, without punching his card and without telling any superior that he was leav-
ing. Both Barrier and Mathis were seen at the hearing by Aycock. After the hearing,
Barner did not return to the plant, remaining away for the balance of the day, and
Chancellor did not know of his absence until Aycock returned to the plant and
informed Chancellor.
D. Mathis' assignment to new duties on April 28
Prior to the hearing in the representation case, Mathis' principal work was to operate
the capping machine which automatically puts caps or tops on jars of food as the
jars reach the machine on a conveyor belt. Mathis performed that work well and, as
Wesley Matthews, the Respondent's general maintenance man, testified for the Re-
spondent, Mathis "is a very good man on" the capping machine. That machine
and other devices are powered by steam, and Mathis' additional duties were to fire
a boiler in the mornings and to keep it in proper operating condition. On April 28,
Chancellor transferred Mathis to a job as cook's helper which required more physical
exertion and was performed in less pleasant surroundings than the job of capping
machine operator 3 The issue is whether Mathis was transferred because he attended
the representation hearing or, as the Respondent contends, because he did not
properly perform his duties in connection with the boiler. About 2 months after
the transfer, Chancellor offered Mathis a job as a truckdriver, saying that the regular
driver had quit and that Chancellor was aware that Mathis did not like the job of
cook's helper. Mathis accepted the transfer. There is no issue concerning it.
Moreover, at all times material to the date of the hearing herein , Mathis earned $1
hourly and it does not appear that he suffered a loss of earnings as a result of any
change in his duties.
One function which Mathis performed in connection with the boiler was to "blow"
it each day, that is, to cause the sediment which had accumulated in the bottom to be
blown out of an opening . The heating unit is in the center of the boiler, and the
water boils first from the center upward. Usually the boiler is blown each morning
after the water in it has been heated sufficiently to build up the necessary pressure
of steam but before the water in the bottom has begun to boil and to disturb the
sediment. When the pressure has reached the correct point , valves at the bottom
of the boiler are opened momentarily to permit the sediment and some water to be
discharged.
During early March 1961, according to the Respondent , a practice was begun of
having Mathis blow the boiler each morning rather than in the late afternoons.
Matthews, the maintenance man, thereafter observed that Mathis was blowing the
boiler properly and, upon two or three occasions when Chancellor inquired, Mat-
thews told him that Mathis was doing so. Mathis testified that he performed the
3 The capping machine is located in a relatively clean area on the floor beneath the
cooking apparatus. A cook's helper handles heavy drums of juices and bags of sugar,
and he works in high temperatures which are attributable partly to the cooking apparatus
and steam.
VITA FOODS 1363
function daily except on April 28 and that he was transferred that morning before
there was sufficient steam for the blow operation. The Respondent asserts, how-
ever, that during late April Mathis twice neglected to blow the boiler, as a conse-
quence of which Mathis was transferred to the job of cook's helper on April 28. The
weakness of this assertion is that the Respondent's two witnesses on the matter,
Chancellor and Matthews, gave substantially dissimilar testimony. According to
Chancellor, on April 27 he asked Matthews about Mathis' attention to the boiler, to
which Matthews replied that Mathis had not blown it on April 26, and Chancellor
told Matthews to check again the following morning and report to Chancellor.
Chancellor testified further that on April 28 Matthews reported that the boiler had
not been blown that morning, that Chancellor in turn told Aycock, that Aycock
directed Chancellor to put someone else in Mathis' job, and that Chancellor told
Mathis and Monroe Johnson to exchange jobs. Thus, according to Chancellor,
Matthews reported to him that Mathis had neglected to blow the boiler on April 26
and 28. Matthews' testimony differs. He testified that on April 27 Chancellor asked
him whether the boiler had been blown on that day, that he answered in the nega-
tive, that on April 28 Chancellor inquired again , and that he answered that Mathis
had not blown the boiler on that day either. With respect to Mathis' alleged failure
to perform the operation on April 27, Mathews testified that upon his observing that
the boiler had not been blown, he inquired of employees concerning Mathis' where-
abouts and was informed that Mathis had not come to work that day and that another
employee, Henry Martin, had lit the burners. When, however, it was pointed out
to Matthews that Mathis had worked that morning and was off work that afternoon,
Matthews testified that his inquiry concerning Mathis' whereabouts was answered
by Johnson who had said "something about a pipe leaking in the kitchen." During
Mathis' absence that afternoon to attend the representation hearing, Matthews oper-
ated the capping machine and, according to his testimony, he blew the boiler at the
end of the working day. Matthews did not testify whether, in telling Chancellor that
Mathis had not blown the boiler on April 28, he also told Chancellor that he, Mat-
thews, had blown it the evening before.
I cannot credit the Respondent's explanation for having transferred Mathis on
April 28. First, Mathis' time was spent mainly in operating the capping machine at
which he was quite capable. He spent considerably less time in attending the boiler,
and his work in this respect was satisfactory until April 26 by the Respondent's own
testimony. Second, the Respondent's testimony concerning Mathis' alleged failure
to blow the boiler on April 26 or 27 is conflicting and unpersuasive. It also is con-
tradicted by Mathis who had not neglected the task earlier and who testified credibly
that he did not neglect it on either of those days Third, Mathis' failure to blow
the boiler on April 28 is advanced by the Respondent as the incident which precipi-
tated Mathis' transfer to other tasks, but such failure constituted an implausible
reason for transferring a man who knew his duties and performed them well. This
is so even if one should disregard Mathis' testimony that he was transferred that
morning before he had time to blow the boiler. Fourth, Chancellor, upon assigning
Mathis to a job as cook's helper, did not say that the reason was an alleged neglect
to blow the boiler, and thus Chancellor did not notify Mathis of his alleged
shortcoming.
Chancellor's hostility toward the Union is reflected by his use of the interroga-
tories, his insistence that employees answer them , and his remark to Whit Marcus
during such insistence that "we don't want [the ] Union." Chancellor knew of
Mathis' adherence to the Union because Mathis had refused to answer an interroga-
tory, had criticized Chancellor's use of the interrogatories as "unfair," and had at-
tended the representation hearing . In view of the factors recited, particularly the
abrupt transfer of Mathis on the morning after the representation hearing and the
absence of any reliable evidence that Mathis was not a capable employee , I find that
his transfer to the less desirable job of cook's helper was violative of Section 8(a) (3),
(4), and (1).
E. The threats to Barner and Mitchell
Shortly before Mathis' transfer on April 28, Barner went to Chancellor's office as
usual to be assigned work for the day. Barner stood in the doorway where he and
Chancellor saw each other, but Chancellor did not tell him what work to perform,
so he went into the plant and used his own judgment in selecting work . In about
a half hour , Aycock and Chancellor went to Barner . Aycock , holding Barner's
timecard , and aware that Barner had attended the hearing without having been
excused from work, asked Barner why he had not clocked out upon leaving the
plant the day before. Burner produced the subpena. Aycock examined it and
then reprimanded Barner for having left work without notice to the Respondent
and without clocking out . Barner replied untruthfully that he had expected to
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be back at work "in time," and Aycock pointed out that this could not have been so
because lunch hour ended at 12:45 p.m. whereas the subpena had been returnable
at 1 p.m. Aycock then said, "If you do this again, I'll fire you." Barner said
nothing.4 Aycock and Chancellor walked away. In about a half hour, Chancellor
returned to Barner who then was standing alongside Mitchell. Addressing Barner,
Chancellor said that he understood, or that he had -a feeling, that Barner would
not be employed much longer. Turning to Mitchell, Chancellor said impulsively:
"You either . . . [a vulgar phrase)." 5
The General Counsel contends that Chancellor's remark to Barner was a threat
to discharge Barner because he had appeared at the representation hearing in re-
sponse to the subpena. I disagree. Chancellor testified that, in saying to Barner
that the latter might be discharged, he was motivated by Barner's having left
work the day before without Chancellor's knowledge or permission. This ex-
planation is reasonable. The fact that Barner had been served with a subpena did
not excuse his having left work under the circumstances mentioned, and he was
properly subject to disciplinary action or the threat thereof. The record will not
support a finding that Chancellor's threat was prompted by Barner's having obeyed
the subpena, as distinguished from Barner's having left work without permission
and without clocking out, and thus it cannot be found that the threat was violative
of the Act.
The General Counsel also contends that Chancellor's remark to Mitchell, "You
either . . ," was a threat to discharge Mitchell because of Mitchell's refusal on
March 31, about a month earlier, to answer the interrogatory. The Respondent,
conceding that the remark was "a nonsensible, ill-chosen jibe," points to Chan-
cellor's testimony that he intended to jibe Mitchell and that he was not motivated
by Mitchell's having refused to answer the interrogatory. I do not believe that the
General Counsel has sustained his burden of proof. Although Chancellor's conduct
on March 31 in connection with the interrogatories and on April 28 in the transfer
of Mathis, was violative of the Act, there is no reason to suppose that Chancellor
would have spoken to Mitchell if Mitchell had not happened to be present when
Chancellor spoke to Barner. I cannot infer that Chancellor's impulsive remark to
Mitchell was motivated by Mitchell's refusal to answer the interrogatory nearly 1
month earlier.
F. The change in Barner's duties for 1 week
In the discussion above of the threats to Barner and Mitchell, we saw that when
Barner reported for work on April 28 he went to Chancellor's office as usual to
be given work assignments, but that Chancellor did not speak to him and that he
used his own judgment in selecting work to do. During the next workweek, ending
Friday, May 5, the same situation existed. Barner did not sustain any loss in pay,
however, and it is not alleged that there was discrimination against him after
May 5. The question is whether the Respondent, motivated by Barrier's appearance
at the representation hearing, transferred him for 1 workweek to more arduous and
less desirable tasks than he had been performing.
According to Barner, for some months before the representation hearing he
worked as shipping clerk and' packer, in which capacities he had the duties of op-
erating,a machine to label containers of food products, packing the containers into
cases or cartons, and transporting the cartons by tow motor. Barner testified also
that he performed such work "mostly regularly" upon assignment each day by
Chancellor, but that he understood that he should work as a cook's helper on days
when there was no work as shipping clerk or packer.
On Monday, May 1, when Barner reported for work, he went to the door to
Chancellor's office and stood there awaiting a work assignment. Chancellor did
not speak, to him, and after some minutes he looked around for work to do. He
went to a case sealing machine, then to a labeling machine, and then to a control
machine at which he had worked on the preceding Friday, but, as he testified, there
was no work,to be done at any of the machines. So, he went to the floor above
to work as a cook's helper, a job which entails more labor than he had performed
as shipping clerk and packer, and which he regarded as "harder and nastier" for
4 Aycock was not a witness and there is little inconsistency in the testimony of Barner
and Chancellor concerning what was said Barner acknowledged having said to Aycock
that he had expected to return to the plant "in tine" although he knew that the remark
was untrue. , He testified also that Aycock and Chancellor were "a little upset" with
the untrue explanation but that he could not recall that Aycock reprimanded him
6 There is no substantial dispute in the testimony of Barner, Mitchell, and Chancellor
concerning what was said ' I -
VITA FOODS 1365
that reason and because one gets "juices all over your clothes, sugar falling all
down your back, [and] just a lot of heat come out from the steam of the pots."
Barner continued to work as a cook's helper through Friday, May 5, because Chancel-
lor assigned no other work to him. On the other hand, Chancellor assigned no one
to take Barner's place as shipping clerk and packer , but himself performed any tasks
of a shipping clerk that needed to be done.
I conclude that the General Counsel has not sustained his burden of proof that
there was discrimination against Barner . In addition to Barner 's testimony that,
each day during the workweek beginning May 1, he unsuccessfuly looked for
work downstairs before going to work upstairs as a cook's helper, he testified that
during that workweek "There wasn't nothing downstairs to do" so he and "all the
boys went upstairs " to work. Thus, there was no work for Barner in his regular
job, and this situation is unlike the discrimination against Mathis where, as we
have seen, he was required to change jobs with Johnson. With respect to Chancel-
lor's having performed some of the functions of a shipping clerk during the work-
week ending May 1, Barner and Riley testified for the General Counsel that it was
not unusual for Chancellor to do so, and it is reasonable to conclude that Chancellor
did so during that workweek because there was insufficient work in that capacity
to keep Barner busy.
G. The Respondent's failure to offer Barner and Mathis the opportunity to work on
Saturday, April 29
The Respondent's plant operates on a 5-day week. On Saturdays, if there is
work to be done, employees load and unload trucks and do maintenance work. The
Respondent's practice is to notify an employee on a Friday if there will be work for
him the next day. On Friday, April 28, no one was told to come to work the next
day. On Saturday afternoon there was a truck to be loaded. Two employees other
than Barner and Mathis were called to the plant to load it. Our issue is whether
Barner and Mathis, having attended the representation hearing 2 days earlier, were
for that reason denied an opportunity to load the truck.
On Saturday morning, Chancellor asked Martin and John Smith to help load a
truck that afternoon and to bring a few other employees. Chancellor did not
specify anyone whom they should or should not bring. Neither Martin nor Smith
was successful in locating any employee, however, but Smith brought an acquaint-
ance named Bailey. Smith worked 41/4 hours that afternoon, Martin worked 31/4
hours, and Bailey worked an undisclosed period of time for which he was paid $5.
The General Counsel, in support of his contention that Mathis and Barner were
invalidly denied work on April 29, points out that they were accustomed to working
on Saturdays more frequently than other employees, that they had home tele-
phones, and that Chancellor did not telephone them. During the 13 Saturdays
immediately preceding April 29, Mathis and Barner worked 11 and 10 days,
respectively. The record discloses, however, that several other employees worked
nearly as often. Thus, of those 13 Saturdays, Martin and Smith, who worked
on April 29, had worked on 9 and 7 days, respectively, and several other employees
had worked on 8 or 9 of those days.
I conclude that the General Counsel has not sustained his burden of proof. First,
the loading of a single truck on a Saturday afternoon was the only work performed
on April 29, and Chancellor's decision to load the truck was made on that day.
Therefore, notice to several employees to come to work on Saturday could not have
been given before they left work on Friday. Second, although Chancellor did not
telephone Barney or Mathis to offer them work on April 29, I cannot conclude from
this fact that he sought to discriminate against them. Chancellor testified that Smith
came by the plant on Saturday to borrow money and that he asked Smith to return
that afternoon to load the truck.6 Chancellor testified also that he telephoned
Martin because Martin owned an automobile and could have transported to the plant
any fellow employees whom Martin might have located. Chancellor did not tell
Martin or Smith not to bring Mathis or Barner. Finally, Mathis and Barner had not
enjoyed an invariable preference in Saturday employment over other employees.
Thus, on March 4, Martin was the only employee who worked. On March 25,
Smith and certain other employees worked but Barner did not. For the reasons
given, the record will not support a finding that on April 29 the Respondent in-
validly discriminated against Mathis or Barner. -
6 Smith testified for the Respondent that Chancellor telephoned him at his home about
noon. Smith was not asked whether he had gone by the plant earlier that day. I believe
that Smith was mistaken.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, to the extent
found to have been invalid , occurring in connection with the operations of the
Respondent described in section I, above , have a close, intimate , and substantial rela-
tion 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 unfair labor practices , I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act. I have found that Mathis
was transferred to the job of cook's helper, that about 2 months later he was trans-
ferred to a job as a truckdriver, that only the first transfer was invalid, that his rate
of pay was not changed , and that, insofar as appears, he had not sustained a loss in
earnings. Thus, there may be no need for a recommendation that Mathis be made
whole. Moreover, the record indicates that Mathis, as a truckdriver, may have
received an increase in wages by now and, therefore, he may not desire reinstate-
ment in the job of capping machine operator.? Nevertheless, because I do not know
whether Mathis (1) sustained a loss in earnings after the hearing 8 and (2) prefers
to continue as a truckdriver, I shall recommend the usual reinstatement and backpay
order. Specifically, I shall recommend that the Respondent offer Mathis immediate
and full reinstatement to the job of capping machine operator, or a substantially
equivalent position (The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 NLRB 827), without prejudice to his seniority or other
rights or privileges, and that the Respondent make him whole for any loss of pay
he may have suffered as a result of the discrimination against him, by payment to
him of a sum of money equal to that which he normally would have earned from
the date of the discrimination, April 28, 1961, to the date of a proper offer of
reinstatement , less his net earnings (Crossett Lumber Company, 8 NLRB 440,
497-498) during said period, the payment to be computed on a quarterly basis in
the manner established in N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc.,
344 U.S. 344. I shall recommend also that the Respondent preserve and, upon
request, make available to the Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards, personnel records and
reports, and all other records necessary to analyze the amount of backpay and the
right to reinstatement under the terms of these recommendations.
In order to make effective the interdependent guarantees of Section 7 of the Act,
I shall recommend further that the Respondent cease and desist from infringing
in any manner upon the rights guaranteed in said section. N L.R.B. v. Express
Publishing Company, 312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d
532 (C.A.4).
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discriminating against an employee because he attended a representation
hearing before the Board, by discouraging membership in a labor organization
through discrimination in employment, and by interfering with, restraining, and
coercing employees in the exercise of their rights under the Act, the Respondent has
engaged in and is engaging in unfair labor practices affecting commerce within the
meaning of Section 8(a)^(4), (3), and (1) and Section 2(6) and (7).
3. The allegations of the complaint that the Respondent (1) discriminated against
John Mathis other than by transfer to the job of cook's helper, (2) discriminated
against Steve Barrier in any manner, (3) threatened to discharge Barner because of
his appearance at the hearing in Case No. 12-RC-1200, and (4) threatened to
discharge Lonnie Mitchell because of Mitchell's refusal to indicate whether he had
signed a union card , have not been sustained.
[Recommendations omitted from publication.]
7 The rate of pay for truckdrivers is more than $1 hourly
8 That Is, whether Mathis' quarterly earnings as a truckdriver have been less than he
would have earned as the capping machine operator