Arkport Dairies, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1951

95 N.L.R.B. 1342 (N.L.R.B. 1951)

1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Petitioner would exclude, and the Employer and Intervenor
include, the installation foremen. This individual oversees the work
of all branch employees engaged in installation and cleaning work.
He has the power effectively to recommend a change in the status of
his subordinates. We find that he is a supervisor within the mean-
ing of the Act. We shall therefore exclude him from each unit.
We find that the following units at the Philadelphia, Pennsylvania,
branches of the Employer, excluding from each unit the branch man-
ager, office assistants, salesmen, installation foreman and other super-
visors as defined in the Act, constitute units appropriate for the
purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
1. All installers and cleaners at Philadelphia Branch #1.
2. All installers and cleaning truck operators at Philadelphia
Branch +#2, excluding the part-time janitor .1
[Text of Direction of Elections omitted from publication in this
volume.]
6 All parties agreed to the exclusion of this part-time Janitor.
ARKPORT DAIRIES, INC. and CHAUFFEURS & TEAMSTERS LOCAL UNION
65, ITHACA , N. Y. & VICINITY, PETITIONER
ARKPORT DAIRIES, INC. and CHAUFFEURS , TEAMSTERS , WAREHOUSEMEN
& HELPERS' LOCAL UNION #65, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN , AND HELPERS OF AMER-
ICA, AFL. Cases Nos. 3-RC-298 and 3-CA-240. August .7, 1951
Decision and Order
On April 26, 1951, Trial Examiner Earl S. Bellman issued his Inter-
mediate Report in the above-entitled proceedings finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action; and finding further that the Respond-
ent had interfered with an election conducted by the Board among the
Respondent's employees and recommending that the election be set
aside, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also fund that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint, and recommended dismissal of these allegations. Thereafter,
the Respondent and the General Counsel filed exceptions to the Inter-
mediate Report, and supporting briefs.
95 NLRB No 176.
ARKPURT DAIRIES, INC. 1343 ,
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
,panel [Members Houston, Murdock, and Styles].
The Respondent's request for oral argument is hereby denied, as
the record and briefs, in our opinion, adequately present the issues and,
positions of the parties.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the exceptions, modifications, and
additions set forth below.
1. The. Trial Examiner found, and we agree, that the Respondent
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act. Our finding is based
upon the following acts'and statements of the Respondent, and upon
its interrogations of employees concerning union activities, all of
which are described in the Intermediate Report :
(b) Manager Schneider's interrogation of Francis Sheon;
(b) Manager Schneider's interrogation of George Waggoner;
(c) Manager Schneider's attendance at the union meeting. of Oc-
tober 24; 2 and
(d) Assistant Manager Holmes' surveillance of the union meeting
of October 24 s
2. The Trial Examiner found that Raymond Melious, Sr., and
Francis Sheon were discriminatorily discharged by the Respondent.
As fully set forth in the Intermediate Report,. Melious, Sr., and Sheon
were permanent employees who would -normally have been retainedin
the Respondent's employ during the slack season. The record indi-
cates that the Respondent learned of the union activity of both of these
2 The Respondent has excepted to the Trial Examiner 's denial of the Respondent's
motion to sever the consolidated cases and hold a separate hearing on the objections to,
the election held in Case No. 3--RC-298 . The Trial Examiner 's ruling is hereby affirmed
as it was in accord with the Board ' s order of consolidation . See N. L. R. B . v. American
Laundry Machinery Company, 152 F. 2d 400 (C. A. 2).
2 The Respondent contends that the meeting of October 24 was not a "formal meeting"
and that in any event no union business was discussed during the time that Schneider was
present . We and no merit in these contentions as this meeting , although not a formal
business meeting of the Union , was held the day prior to the election for the purpose of
answering questions of the employees in furtherance of the Union 's organizational activi-
ties, ard, under the circumstances of this case , the mere presence of the plant manager
at such it meeting constituted a violation of Section 8 (a) (1) of the Act.
8 We do not rely upon, and expressly reject , that portion of the Trial Examiner ' s- discus=
lion In which he stated : "And it is evident that the reason advanced by Holmes for his
action, to see if 'employees that were supposed to be working were attending the meeting,'
is not a personal reason but has meaning only because of Holmes ' supervisory position."
Holmes' surveillance of the union meeting would be no less violative of the A.(t if' it were
established that his attendance was motivated by a "personal reason."
1344 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
individuals prior to their discharge.4 We therefore find, as did the
Trial Examiner, that these discharges were in violation of Section 8
(a) (3) of the Act. _
3. The Trial Examiner found that Supervisor McCarthy's discussion
with Melious, Jr., was not interrogation in violation of Section 8 .(a)
(1) of the Act, and that Manager Schneider's conversation with Ebner
contained no threat of reprisal. Because no exceptions were taken to
these findings, we shall adopt them. In so doing, however, we do not,
pass upon the correctness of these findings or the reasoning used by the
Trial Examiner in making these findings.
4. The Respondent contends that because of the lapse of time be-
tween the filing of the charge herein on November 11, 1949, and the
issuance of the complaint on August 28, 1950, no back-pay award
should be made for that period. • The Respondent also contends that it
should not be held chargeable for back pay for a period of 6 weeks
during which issuance of the Intermediate Report was delayed due to
injuries received by the Trial Examiner. The delays present in the
case have been on the part of the Board rather than on the part of the
discriminatorily discharged employees. In'accord with the Board's
normal practice in such cases, we shall place the burden of the delay
upon the Respondent who committed the unfair labor practices rather
than upon the employees who were the objects thereof.5 Accordingly,
we shall adopt the back-pay provisions in the Trial Examiner's recom-
mendations.
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, Arkport Dairies, Inc., Arkport,
New York, its officers, agents, successors, and assigns shall :
1, Cease and desist from :
(a) Discouraging membership in Chauffeurs, Teamsters, Ware-
housemen & Helpers' Local Union #65, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL,
or any other labor organization, by discriminatorily discharging any of
its employees, or by discriminating in any other manner in regard to
their hire or tenure of employment, or any term or condition of
employment.
4 Sheon was the subject of Schneider's interrogation on July 23. It appears from the
testimony of Melious , Sr., that Supervisor McCarthy learned in the latter part of June
that Mel`.ous , Sr., had joined the Union . It is therefore unnecessary in this case to rely /
upon the smallness of the community . and of the plant in order to impute to the Respondent.
knowledge of the union activity of these discriminatees.
6 Agar Packing ci Provision Corporation, 81 NLRB 1262 ; cf. N. L. R. B. v. Wilson Line,
Inc., 122 F . 2d 809 ( C. A. 3).
ARKPORT DAIRIES, INC.. 1345
(b) Interfering with, restraining, or coercing its employees, by
means of. interrogation or surveillance, or in any other manner, in the
exercise of the right to self-organization, to 'form labor organizations,
to join or assist Chauffeurs, Teamsters, Warehousemen & Helpers'
Local Union #65, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen, and Helpers of America, AFL, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities- for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities, except to the extent that such
right may be affected by an agreement requiringmembership in a labor
organization as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Raymond Melious, Sr., and Francis Sheon immediate
and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or any other rights and
privileges.
(b) Make whole said Raymond Melious, Sr., and Francis Sheon, in
the manner set forth in the section of the Intermediate Report entitled
"The Remedy," for any loss of pay they may have suffered by reason
of the Respondent's discrimination against them.
(c) Upon request, make available to the Board or its agei}ts, for
examination and copying, all payroll records, 'social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay and the right of
reinstatement under the terms of this Order.
(d) Post at its plant in Arkport, New York, copies of the notice
attached to the. Intermediate Report and marked "Appendix A." e
Copies of said notice, to be furnished by the Regional Director for the
Third Region, shall, after being duly signed by the Respondent's repre-
sentative, be posted by the Respondent, immediately upon receipt
thereof, and .maintained by it for a period of at least sixty (60)
consecutive days thereafter, in conspicuous places, including all places
where notices are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
E This notice , however , shall be and it hereby is amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner " and substituting
in lieu thereof the ` words "A Decision and Order." In the event that - this - Order is
enforced by a decree of it United states Court of Appeals , there shall be inserted before
the words "A Decision and order" the words "A Decree of the United States Court of
Appeals Enforcing."
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for the Third Region in writing
.within ten (10) days from the date of this Order what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent (a) violated Section
8, (a) (1) of the Act by threatening employees with discharge or
discipline for'engaging in union or concerted activities; and (b) dis-
charged Raymond Melious, Jr., and Francis Mess, Eugene Parmelee,
and Samuel Pierson in violation of Section 8 (a) (3) of the Act.
IT IS FURTHER ORDERED that the election. held on October 25; 1949,
among the employees of Arkport Dairies, Inc., Arkport, New York,
be, and. it hereby is, set aside.?
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
On June 1, 1949, Chauffeurs & Teamsters Local Union 65, Ithaca, N.' Y. &
Vicinity, herein called the Union,` filed with the National Labor Relations Board,
herein called the Board, a. petition in Case No. 3-RC-298 for certification of
representative pursuant to the National Labor Relations Act, 61 Stat. 136,
herein called the Act. A hearing was held at Hornell, New York, on August 4,
1949, in which the Union and Arkport Dairies, Inc., herein called the Respondent,
both participated? On September 29, 1949, the Board issued a Decision and
Direction of Election,' in which the Regional Director for the Third Region
(Buffalo, New York) was directed to conduct an election among employees found
to constitute an appropriate unit at the Respondent's Arkport, New York, plant.
On October 25, this election was held. The certification on conduct of election and
the tally of ballots were signed by a representative of the Regional Director and
a representative of the Respondent' The tally shows that of the 38 ballots cast;
6 were for the Union and 32 were against it.
On October 26, 1949, the Union filed objections, in which it set out four al-
leged acts of the Respondent as its basis for protesting the election. By a
letter dated November 1, the Respondent detailed its. position as to why each of
the objections was without foundation. While the objections were still 'pending,
the Union filed its charge in Case No. 3-CA-240 on November 14; 1949, alleging
violations of Section 8 (a) (1) and (3) of the Act. On March 16, 1950, the
Regional Director issued his report on objections, in which he found no merit
in the Union's first and third objections.' The Regional Director did not pass
7 when the Regional Director advises the Board that circumstances permit a free choice
of representatives, we shall direct that a new election be held among the Respondent's
employees.
A Although the names used vary, the Petitioner in Case No . 3-RC-298 is the sane
party as the charging Union in Case No. 3-CA-240.
2 In this representation hearing and also in the subsequent hearing before the undersigned,
the Respo"dent and the Union were represented by the individuals named above.
3 86 NLRB 319.
* The U nion did not have a representative present at the election.
6 The S at objection was that the Respondent had refused to agree to permit Samuel
Pierson, whose discharge prior to the election was one of the 8 (a) (3) allegations in
the l nion ' s charge, to serve as an observer at the election, thus leaving the Union without
an observer. The third objection pertained to wage increases given by the Respondent
shortly before the election.
ARKPORT DAIRIES, INC. 1347
on the fourth objection, to the effect that prior to the election the employment
of several employees who had signed applications for the Union had been ter-
minated, pointing out that this allegation was embraced in the Union's charge
which was then under investigation. As to the Union's second objection, the
Regional Director found that the Respondent, through its "general foreman,"
had engaged in surveillance of a meeting of the Union on October 24, 1949,6 and
recommended that the Board sustain the objections and set aside the election.
On March 22, 1950, exceptions to the Regional Director's finding of surveillance
and to his recommendation that the election be set aside were filed by the Re-
spondent.
On June 15, 1950, the Board issued its order consolidating cases and directing
hearing on objections and exceptions. On August 20, 1950, the Regional Director
issued a consolidated notice of hearing and a complaint in Case No. 3-RC-240,
alleging that the Respondent had engaged in unfair labor practices, within the
meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act.
The complaint and notice of hearing, accompanied by copies of the charge' and
the Board's order of consolidation, were duly served on the Respondent and the
Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that : (1) The Respondent, about May 30, 1949, discharged Sam Pierson and
thereafter refused to reinstate him; (2) the Respondent discharged 'or laid
off Francis Mess,' Raymond Melious, Sr., and Eugene Parmelee about July 30,
1949, and Raymond Melious, Jr., and Francis Sheon about August 6, 1949, and
thereafter refused to reinstate them; and, (3) the Respondent, from about
May 1, 1949, warned its employees that they would be discharged or disciplined
if they became -members of the Union or engaged in union or concerted activities,
interrogated employees concerning their own union membership and activities
and that of their fellow employees, and kept under surveillance the meeting
places, the meetings, and activities of the Union.
O'n September 5, 1950, the Respondent filed its answer which admitted some
of the allegations concerning its. operations and denied others, and generally
denied all of'the allegations concerning unfair labor practices. On the same
day, the Respondent also filed a motion "for an order severing the hearings"
in the two cases here involved, stating as grounds that a consolidated hearing
was contrary to the Board's order and that such a consolidated hearing would
prejudice the Respondent; Under date of September 14, the above-named at-
torn'ey representing the General Counsel, who will hereafter be referred to as
the General Counsel, filed a memorandum addressed to the Trial Examiner in
opposition to the Respondent's motion to sever.
Pursuant to an order-by the Regional Director rescheduling the hearing, a
hearing was held at Hornell, New York, on October 10, 11, 12, and 13, 1950,
before Earl S. Bellman, the undersigned duly designated Trial Examiner. The
General Counsel and the Respondent were represented by counsel and the Union
by its president: Full opportunity to be heard, to 'examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded all
parties. At the opening of the hearing, the transcript and exhibits in the hearing
in Case No. 3-RC-29S were incorporated by reference in the instant matter by
6 With respect to surveillance of this same meeting by two other individuals, the
Regional Director found that, although there was "room for suspicion," there was
"insufficient" evidence of "improper surveillance."
The evidence shows that previously, on November 16, 1949, the Respondent had received
a copy of the charge by registered mail.
8 Amended without objection at the hearing to read Mess rather than Ness.
961974-52-vol. 95--86
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement of all parties. Oral argument was heard on the Respondent's motion
for severance and said motion was denied. By way of clarifying positions, the
General Counsel and the Union stated that evidence would be adduced as to only
the second and fourth of the Union's objections to the election, thus abandoning
the first and the third objections which the Regional Director had found without
merit. With respect to the alleged 8 (a) (3) violations, the Respondent stated
that, except for Pierson, its position was that the individuals named in the
complaint had been laid off because of lack of work resulting from reduction
in the receipt of products at the plant.
At the close of the General Counsel's case, the undersigned' granted one motion
by the Respondent to strike certain testimony and denied two other motions to
strike testimony. One of said denials is now modified to the extent that certain
testimony of Raymond Melious, Jr., specified in the margin, is hereby stricken.'
At the close of the hearing, the undersigned granted motions, by the General
Counsel as to the complaint and by the Respondent as to its answer, to conform
to the proof as to minor formal matters. The parties were afforded, but waived,
opportunity to argue orally before the undersigned. Pursuant to extension of
time by the Chief Trial Examiner to November 17, 1950, briefs which have been
duly considered were filed by the General Counsel and the Respondent.
Upon the entire record in the case, including the record in the R-case hearing,
and from his observation of the witnesses, the undersigned makes the following : 10
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Arkport Dairies, Inc., the Respondent, is a New York corporation which main-
tains its principal office in Ridgewood, New York, and operates a plant at Ark-
port, New York, where it is engaged in purchasing, processing, selling, and dis-
tributing milk and milk products. The Respondent is, and for many years has
been, a wholly owned subsidiary of Grandview Dairy, Inc., herein called Grand-
view, a New York corporation with its principal place of business in Ridgewood,
New York. At all material times, Grandview has operated plants in Brooklyn,
Gorham, and Wallace, New York, and, in addition to owning the Respondent,
has also owned the stock of Cohocton Creameries, Inc., a New York corporation,
which operates plants in Cohocton and Wayland, New York, and the stock of
Roselake Dairies, Inc., a Pennsylvania corporation, which operates plants at
Bear Lake and Akeley, Pennsylvania. At all material times, the officers and
directors of Grandview have also held like positions in the Respondent, Cohocton,
and Roselake and the principal offices of all of these corporations have been lo-
cated at the principal office of Grandview in Ridgewood, New York. Like the Re-
spondent, Grandview, Cohocton, and Roselake are also engaged in purchasing,
.processing, selling, and distributing milk and milk products.
During the calendar year 1949, the Respondent, in the course and conduct of
its business, purchased or received approximately 85 million pounds of raw
milk, approximately 25 percent of which was received from Roselake in Pennsyl-
vania. During the same period, the Respondent processed approximately 85
The stricken testimony appears at page 252 In the transcript . It begins with the tenth
word in line 16 and runs through line 21 . An examination of the record shows that this
testimony was taken subject to a motion to strike and that the employee , to whom the
matter was attributed by Melious was not called as a witness. .
10 The transcript at page 549 is*hereby corrected by placing a period after the sixth word
in line 8 and' starting the seventh word , "as" with a capital letter ; also by inserting the
word , "case," after the fifth word in line 12.
ARKPORT DAIRIES, INC. 1349
million pounds of raw milk, of which approximately 20 percent was sold and
shipped to customers located outside of New York and approximately 70 percent
was shipped to Grandview in Brooklyn. During the.calendar year 1949, Grand-
view and its wholly owned subsidiaries, Cohocton and Roselake, purchased not
in excess of 300 million pounds of raw milk, of which approximately 60 percent
was shipped to them in interstate commerce. During the same year, Grandview,
Cohocton, and Roselake processed not to exceed 300 million pounds of raw milk;
of which approximately 50 percent was sold and shipped in interstate commerce
to customers located in States other than the State in which the raw milk was
processed.
The foregoing findings are based upon a stipulation entered into by all parties.
The Respondent concedes that it is engaged in commerce within the meaning of
the Act and the Board so found in its decision of September 29, 1949, in Case
No. 3-RC-298.
II. THE ORGANIZATION INVOLVED
Chauffeurs, Teamsters, Warehousemen, and Helpers' Local #65, sometimes
also called Chauffeurs & Teamsters Local Union 65, Ithaca, N. Y. & Vicinity, is
a labor organization admitting to, membership employees of the Respondent.
The Union is affiliated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL.
III. THE UNFAIR LABOR PRACTICES
A. Some general considerations
A substantial part of the evidence in this case is contradictory in nature;
the matter of the credibility of witnesses is a very complicated one; and many
close questions, some of fact and some of law, are involved. As to credibility,
it was obvious during the hearing that a number of witnesses on both sides were
very partisan in their testimony. Yet, while the undersigned is convinced that
several witnesses are not worthy of belief as to some parts of their testimony,
he does credit the testimony of some of them in other respects."
It would greatly protract this Report to set out in detail all of the conflicting
evidence, credibility problems, and opposing contentions which have been fully
considered in making the findings and conclusions which follow. Hence the
undersigned's evaluations of such matters are spelled out as to what are believed
to be relatively major questions. Other findings are based, without detailed
discussion, on the weight of the credible evidence in the record considered as a
whole. In any event, the Trial Examiner has carefully weighed all of the
evidence and the detailed contentions which have been briefed in reaching his
determinations in this case.
It should be noted also that the General Counsel's brief seeks to show an anti-
union attitude on the part of the Respondent stemming from a former complaint
case before the Board. The General Counsel contends that, because of its past
experience in that case, the Respondent realized that "in order to avoid suspicion
11It would be much easier to determine facts if witnesses were either fully truthful or
totally unworthy of belief. But that the judicial process is less . simple than the maxim,
"falaus in uno, falaus in omnibus," quoted in the Respondent's brief, is attested by the
following language in N. L. R. B. v. Universal Camera Corp., 179 F. 2d 749 (C. A. 2),
January 10 , 1950, 25 LRRM 2256, 2260:
It is no reason for refusing to accept everything that a witness says, because you
do not believe all of it; nothing is more common in all kinds of judicial decisions than
to believe some and not all.
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of its true motives" it had "to surreptitiously infiltrate into the ranks of its"
employees and ferret out" those desiring to organize. That former matter,
Case No. 3-CA-35, joined as respondents Grandview, Arkport, and Cohocton,
three of the interrelated corporations discussed above in Section I. After a
hearing in that case, Trial Examiner Henry J. Kent issued his Intermediate
Report on March 8, 1949, finding that the respondents therein had interrogated
and threatened employees concerning the union,'2 and had also discharged three
truck drivers during July 1947 who were engaged in the "so-called Cohocton or
upstate trucking operations" which operated out of Cohocton's garage. Trial
Examiner Kent also recommended that the respondents cease their unfair labor
practices and reinstate the three truck drivers with back pay.
This former matter did not go to the Board for decision,.since there was
compliance with the Intermediate Report. Counsel for the Respondent in the
present case stated on the record that it was Cohocton which had complied
with the Intermediate Report, as the discharged drivers were employees of
Cohocton, and that Arkport had been joined as a respondent in that case only
because of the commerce "angle."'3 There is no showing to the contrary in the
record in the instant matter. Further , an 'examination of the Intermediate
Report issued in the former case does not reveal that any supervisor.of Arkport
took any part in any of the activities during July 1947 found therein to be unfair
labor practices.14 Whatever the Respondent in the instant matter may have
learned from this former case in which the Intermediate' Report issued not long
before the Union's organizational activities began at the Arkport plant, the
undersigned believes, everything considered, that he is not warranted in drawing
the kind of background inferences adverse to the Respondent which are urged
in the General Counsel's brief."
B.. The, advent of the Union
Pursuant to a • letter from employee Sam Pierson to the Union's president,
George Hart, asking for an appointment, a meeting was arranged at the Hotel
Sherwood in Hornell, New York, a city some 5 miles from the. Respondent's
plant in the village of,Arkport.18 This;-first meeting was held on May 7, 1949.
Aside from preliminary discussion among the Respondent's employees which
had led to it, this meeting constituted the first step. in what appears to have.
been the initial effort to organize the Respondent's employees. In addition to
Pierson, who had taken the initiative in securing the meeting, two other em-
ployees of the Respondent, Salvatore Fal5oi and Gaylord Dodge, met with Hart.
Ralph Burrows, apparently one of the truck drivers involved in the former
case, was also present. At this meeting, Pierson told Hart that numerous
employees were interested in organizing and that he thought that he could get
-12 The union involved in the instant matter was also the charging party in this former
case. . Its president, George Hart, who the Intermediate Report in that case shows was
active in organizing the truck drivers who were then involved , also represented the union
in the former case.
13 The atto ' ney for the Respondent in the instant matter also represented all three
respo dents in that former case.
14 The nearest approach to any such connection would appear to be James J. Finn, a
son-in-law of the Respondent ' s president,' Charles Cacioppo . Finn, a major figure in the
activities in the former case, apparently was in charge of all transportation equipment and
operators thereof. But there is no contention that he was a supervisor at the Arkport
plant . Nor is there any evidence that Finn has had anything to do with the employees
in the appropriate unit at Arkport , which is essentially a plant-wide production and
maintenance unit, excluding specifically truck 'drivers.
15 Cf. Salant & Salant, Incorporated, 92 NLRB 343.
"The Encyclopedia Britannica World Atlas lists the population of Hornell as 15,649
and of Arkport as 618.
ARKPORT DAIRIES, INC. 1351
a majority to sign up for the Union. A meeting to be attended by any interested
employees was then set for the following week.
The above-arranged second meeting with Hart was held at the Hotel Sherwood
on May 14. It lasted about 2 hours and was attended by employees Pierson,
Falzoi, Dodge, Ray Melious, Sr., Ray Melious, Jr., Francis Mess, and Francis
Sheon. After a discussion about organizing, Hart appointed Pierson to "carry
the cards" in signing up employees for the Union. At that meeting cards apply-
ing for membership in the Union were signed by Pierson, Falzoi, Melious, Sr.,
Melious, Jr., Mess, and Sheon."
Subsequent to the above meeting, additional applications were secured from
employees. Under circumstances later discussed, Pierson secured an appli-
cation from Charles Ebner on the evening of May 14, and from William Baird
on May 19. The application of Eugene Parmelee, the only complainant in this
matter who had not signed a card at the meeting of May 14, was secured by
Falzoi on May 16. While several employees, including Melious, Sr., Melious,
Jr., and Parmelee, took part on behalf of the Union in this organizing campaign,
Pierson was the most effective individual in securing signed applications. He
secured about half of the approximately 26 applications which were signed by
employees of the Respondent.
Before detailing the activities of the Respondent which are alleged to consti-
tute unfair labor practices, a brief chronological grouping of events will assist
in orientation. On May 30, the leader in organizational activity , Pierson, was
discharged. Several matters prior to and in connection with his discharge are
alleged to establish that the Respondent opposed the Union and knew of Pier-
son's union activities. Some 2 months later, the other five complainants were
laid off, three of them on July 30, and two of them on August 6. Simultaneously
several other employees were also laid off in connection with what the Re-
spondent contends was a seasonal decline in its business.
On August 18 and on October 24, 1949, the Union held meetings in Arkport.
Several matters in connection with these two meetings are alleged to consti-
tute surveillance. In addition, a number of other matters, ranging over the
period from May 30 to shortly before the election on October 25, are specifically
advanced as exanples of interrogation and of threats. All of these examples
of surveillance, interrogation, and threats specifically advanced in the General
Counsel's brief are attributed to four individuals. Two of these are admitted
supervisors of the Respondent, Manager Schneider and Assistant Manager
Roger Holmes. The two other individuals, both of whom voted without chal-
lenge in the election and whose supervisory status is in issue, are Waldo
McCarthy and Harold Jones. We turn first to a consideration of whether or
not the Respondent is chargeable with interference, restraint, and coercion, in
violation of Section 8 (a) (1) of the Act, by reason of the various activities of each
of these four, individuals.
C. Interference, restraint , and coercion
1. Harold Jones
The General Counsel contends that Harold Jones (1) engaged in surveillance
by attending the Union's meeting of October 24, 1949, (2) threatened employee
Charles Ebner, and (3) interrogated employee Spencer Zeh. The Respondent
11 Cards captioned, APPLICATION FOR MEMBERSHIP, dated May 14, 1949, and signed
by Pierson, Sheon, Mess, Falzoi, and Melious, Jr., were introduced into evidence. The
finding that Melious, Sr ., also signed a card at this meeting is made upon credited testimony
of Melious , Sr., and Pierson, The undersigned is unable to determine from the record
whether or not Dodge signed a card.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
contends that it cannot be held responsible for any statements or actions of
Jones because he was not a supervisor.
Admittedly Jones attended the meeting on October 24 to which all employees
had been invited by handbills distributed at the plant entrance . The under-
signed is also satisfied , from Zeh's uncontradicted testimony , that Jones came
up to Zeh in a tavern the evening of August 18, after the union meeting on that
day, and asked him whether he had been "over to that damn union meeting," and
that Ebner said that he had been. The undersigned also believes, on the basis
of his appraisal of the testimony of Ebner and Jones , that shortly before the
election at a time when "everybody seemed to be talking about it," Jones told
Ebner that a union just would not work in a milk plant ; that he knew of.
creameries that had closed because of unions; and that if the Union ever got in,
at Arkport, the plant would close.
At the R-case hearing on August 4, 1949, President Hart, on behalf of the
Union, agreed with the Respondent that there was only one supervisor as defined
by the Act at the Arkport plant. It is clear from that record, including the
salary figure stated for Roger Holmes in giving the range for employees included
within the unit, that this single agreed supervisor was Manager Schneider.
Thus what transpired at the August 4 hearing constituted an agreement by the
Union that Holmes, McCarthy , and Jones were all three in the appropriate
unit, and were not supervisors within the meaning of the Act. On October 12,
1949, the parties held a conference with a Board agent at which they agreed on
a list of employees who would be eligible to vote in the election on October 25.
That conference was attended by Maltinsky and Schneider for the Respondent
and by Hart and Pierson for the Union. At that meeting, the name of Holmes
was stricken from the payroll .. However, the list of the certified eligible voters
included McCarthy, who was shown on the payroll as "N" foreman, and Jones,
who was listed as mechanic.
The testimony as to the supervisory status of 'Jones, who works on the day
shift, is contradictory . Schneider , Holmes, and Jones all testified that Jones
had no power to hire or fire. Holmes and Jones testified that Jones' job was
that of a mechanic . Jones also testified that he had no authority to change
employees' jobs, lay them off, or to promote , suspend, or discipline employees,
and that he and other men received their instructions from Schneider and
Holmes. It is apparent from credited testimony of Jones that , while he may
work anywhere in the-plant on maintenance work, he is particularly respon-
sible for the maintenance of the pumps and controls in the boiler room. Jones
receives the same weekly wage as that received by two other mechanics, each
of whom also has primary responsibility for the general maintenance of certain
specific operations . Any of these three equally paid mechanics may help one
of the others in maintenance work when the occasion arises.
The General Counsel, based upon the testimony of several witnesses, contends
that Jones had authority to. hire, assign , transfer , and responsibly direct
other employees and effectively to recommend such action . Jones' alleged
authority to hire and effectively to recommend hire rests on a single incident
when Zeh , who had previously worked for the Respondent for several years and
was known to be a good fireman, was rehired . While there are some minor
variations in the testimony of Jones and Zeh as to this incident , the undersigned
believes from his consideration of their testimony that substantially the follow-
ing took place. About the end of July 1949, when Zeh happened to be at the
plant to make a purchase , he and Jones discussed the fact that the Respondent
needed a fireman on days, and Jones asked Zeh if he wanted the job. . Zeh
replied that he would rather work nights. Jones said that he would go to the
ARKPORT DAIRIES, INC. 1353 -
office to see either Schneider or Holmes about the matter. He then went to the
office, explained the situation to either Schneider or Holmes, and recommended
that Zeh be given the position as fireman . Jones was thereupon authorized to
tell Zeh that he could have the job as day fireman, and he, returned and told
Zeh to come to work the next morning. Everything considered, the undersigned
is not persuaded that the role of Jones in this isolated instance as to hiring
establishes authority on his part to effectively recommend hire, especially since
the qualifications of Zeh presumably were already known to Schneider and
Holmes.
That Jones had authority to "assign" employees is urged on the basis of an
incident involving George Waggoner, who was changed from firing to wheeling
coal sometime during the spring of 1949 because Jones claimed that Waggoner
had been changing the controls on the boilers. The testimony of Jones and
Waggoner is flatly contradictory, among other things as to whether Waggoner
had, in fact, changed the controls. Waggoner. was not sufficiently objective in
testifying on this matter to warrant accepting' his version of this boiler room
incident in preference to that of Jones and the undersigned is not satisfied that
the evidence warrants finding that Jones had power to assign employees, or
effectively to recommend such action.
As to authority responsibly to direct employees, the undersigned doubts if
Jones had any authority to direct the work of the several other mechanics.
As to the four, or five boiler room employees, it does appear from testimony
of Zeh; Ebner, and Waggoner that at least some of those employees, including
firemen , considered Jones to be their immediate superior and that Jones gave
them directions, at least to the extent of telling them when to light boilers
and when to shut them down. But instructions also were given to boiler-room
employees by Schneider and Holmes, and there is some evidence that firemen
would increase or decrease power upon receiving word from almost anyone in
the plant who was operating equipment . In the undersigned's considered opin-
ion, such instructions as Jones gave to ,boiler-room employees would not warrant
finding that he had power responsibly to direct those employees within the
meaning of the Act as interpreted, by and large, in Board decisions.
In view of all of the foregoing, the undersigned is not, persuaded that the
Respondent is chargeable with any unfair labor practices because of the activi
ties of Jones . In the first place, the weight of the, evidence. does not establish
that Jones was a supervisor within the meaning of the Act. In -addition, it does
not appear that the above-found activities of Jones, which occurred at a time
when the parties themselves were in agreement that Jones was 'within the ap-
propriate unit," were such as to warrant inferring that Jones was acting at the
Respondent's behest, rather than that he was pursuing his own interests.
2. Waldo McCarthy
Certain background facts which pertain to McCarthy as well as to Jones
are set out in the foregoing section of this Report. The only activity by
McCarthy which appears to be in issue evidently occurred about the middle of
June. According to Raymond Melious, Jr., who fixed the time as about a month
after the May 14 meeting at the Hotel Sherwood, McCarthy asked Melious
"a couple of different times" what he thought about unions. Melious testified
18 The undersigned deems it unnecessary to pass upon the Respondent's contention that
because , of that agreement, the General Counsel and the Union are, as a matter of law,
precluded from raising now any contention as to Jones and McCarthy, in view of the
holding in N. L. R. B. v. Scullin Steel Co., 161 F. 2d 143 (C. A. 8).
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he told McCarthy that it would be a good thing to have a union and that
McCarthy wanted to know whether he, a foreman , would be covered by the
Union.'° It is not clear from Melious' testimony how these conversations started
or just where they took place, and there is nothing in Melious' testimony to
indicate that McCarthy ever expressed any opinion adverse to the Union or
asked who the members of the Union were. When questioned about Melious'
testimony as to these talks about the Union, McCarthy testified that there had.
been a lot of talk about the Union and that he could not say wheher he had had
such talks with Melious. He also testified that he had never "asked anybody
directly" what he thought about a union.
.
It is reasonable to believe that McCarthy , who testified that he was the night
foreman and who was so listed on the payroll , but whose supervisory powers
were so limited that the parties agreed to include him in the unit , should have
been interested in determining what his status would be if the Union got in
the plant. The undersigned believes, everything considered , that McCarthy
and Melious , Jr., did discuss the Union substantially along the lines testified
to by Melious. In addition , the undersigned is satisfied , upon his detailed study
of the extensive testimony as to McCarthy 's supervisory status, some of which
evidence is substantially in conflict , that the weight of the credible evidence
warrants finding that McCarthy was, contrary to the Respondent 's contention,
a supervisor within the meaning of the Act 2° However, under all of the cir-
cumstances of this case , the undersigned does not believe that McCarthy's dis-
cussions of the Union with Melious , Jr., can fairly be said to constitute inter -
rogation in violation of the Act , as contended by the General Counsel. Although
the undersigned finds that McCarthy was, in fact, a supervisor , his status as
such was so ambiguous that the Union 's organizational campaign may well
have afforded him reason for a genuine desire to clarify his own position with
respect to the Union . Under such circumstances , especially since the Union
itself later agreed to include him in the unit , it would seem unreasonable to
hold that the discussions here in question , the only activities ascribed to Mc-
Carthy, constitute a basis for finding that the Respondent thereby engaged in
unfair labor practices.
3. Roger Holmes
Assistant Manager Holmes, who, like Manager Schneider, has authority to hire
and fire, is now conceded to be a supervisor. It is contended that Holmes en-
gaged in surveillance by attending the Union's meeting of August 18 and also
19 The gist of Melious' testimony on this matter is fairly well summed up in his final
answer on cross-examination which reads :
He [McCarthy] asked me how I felt about unions. I'd tell him about unions.
He asked me questions, tell me how he felt about it. He was worried about his
position as foreman, what would happen, whether he'd have any rights with the
union or not. That is about all.
20 The undersigned is of this opinion principally because McCarthy was, during most of
the night shift, the only supervisor at the plant ; he was considered by himself and by
the employees under him to be the night foreman ; and he had authority responsibly to
direct the work of at least part of the employees on the night shift: It is not deemed
necessary to consider in detail the evidence as to the foregoing or as to several other aspects
of McCarthy's supervisory authority discussed in the General Counsel's brief. Some of
that evidence does tend to support the finding that McCarthy was a supervisor. On the
other hand, the undersigned does not rely on certain criteria advanced , notably the alleged
authority to hire which it is contended is shown by the circumstances surrounding the
employment of Melious, Jr. Nor was the evidence purporting to show McCarthy's
authority effectively to recommend rewards for employees particularly persuasive.
ARKPORT DAIRIES, INC. 1355
by watching, the meeting place of the Union from his parked car while the Oc-
tober 24 meeting was in progress. As is noted above, the Union had agreed,
at the R-case hearing on August 4, that Holmes was, in the unit by agreeing
that. the. Respondent had only one supervisor. However, over 2 months there-
after, in determining eligibility of voters at the conference on October 12, the
parties agreed that Holmes' name be stricken from the list of such eligibles.
Thus, Holmes' attendance at the August 18 meeting took place 2 weeks 'after
he was conceded by the Union to be in the unit and almost 2 months before it
was agreed that he be excluded from the list of eligible voters. However, it is
clear that almost 2 weeks before the October 24 meeting, it had been agreed
that Holmes was not eligible to vote.
Admittedly Holmes attended the August 18 meeting, which appears to have
been the first open meeting of the Union. This meeting was scheduled from
7 p. in. to 8 p. in. in the, hose rooms in Arkport, and "all employees" were urged
to attend by a handbill distributed at the plant entrance by the Union. - Holmes
arrived before the meeting was scheduled to start. He met Hart and Pierson
near the stairs leading to the hose rooms which were on the second floor, and
talked with them there for a few minutes. After they were joined by others
coming to the meeting, Holmes went upstairs with the group, stayed for the
entire meeting which lasted approximately an hour, and left when the several
employees of the Respondent who attended the meeting also left. While Holmes
took part in the general discussion at the meeting, he said nothing derogatory
about the Union. It appears that Holmes' participation consisted of inquiries,
similar to those being made by others present, concerning how the Union operated
and what benefits the employees would derive from it. Sometime during that
evening, possibly before the meeting opened, Holmes, according to credited testi-
mony of Hart, asked Hart whether or not he would be eligible for the Union and
Hart replied that he did not know Holmes' status. Whatever other conversation
may have taken place, particularly between Hart and Pierson concerning Holmes'
status, the undersigned is satisfied that no one told Holmes that he was not
welcome at that meeting.'
From all of the evidence, it appears that Holmes' attendance at the August 18
meeting, an incident which is not mentioned in the Regional Director's report'
on objections, occurred when Holmes could have entertained an honest belief
that the notice to "all employees" urging attendance warranted his going to find
more about the situation in order to clarify his own position. It cannot be said
that Holmes then had any reason to know that he would later be excluded from
the list of eligible voters. Nor is there anything in the record to indicate that
prior to or contemporaneously with Holmes' attending this meeting, he was
engaging in any activities- repugnant to the Act. While Holmes' attendance at
this meeting is not free from doubt, especially in view of his presently admitted
supervisory status, the undersigned is not persuaded that, under all of the
circumstances, it constituted surveillance by the Respondent of the August
18 meeting 22
We turn now to Holmes' conduct with respect to the meeting of October 24.
This incident, upon which the Regional Director relied exclusively in finding
surveillance, occurred 12 days after Holmes had been excluded by agreement
from the employees eligible to vote. The meeting, which took place the day
s
a The above findings are based on the undersigned 's analysis of the testimony of Hart.
Pierson , and Holmes . Their testimony is, for the most part , supplementary in nature.
As to variations between the versions of Hart and Pierson , the testimony of Hart is
credited as more reliable.
= Mellin-Quincy Mfg. Co., Inc., 53 NLRB 366, 371.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before the election, was scheduled for the hose rooms in Arkport from 1 p. m. to
7 p. in. While the "Notice to All Employees," urging attendance at this meeting,
was very similar to that issued for the August 18 meeting, and included, in
addition, the announcement of free refreshments, Holmes did not attend this
October 24 meeting. Instead, he parked his car for a period of time at each of
two different places which were in full view of the entrance to the hose rooms.
On the first occasion, apparently sometime between 1 and 2 that afternoon, Holmes
parked in front of the church located diagonally across the corner from the hose
rooms and remained there for some 10 or 15 minutes from the time Hart and
Pierson first observed him at that place. A little later, Holmes parked for
another period of perhaps 10 or 15 minutes by the bank which was located
across the street from the entrance to the hose rooms ze
The evidence shows that during this period when Holmes was parked as
above described, there were probably only two men in addition to Pierson
and Hart at the meeting, an informal affair which consisted of casual discus-
sions between Hart and employees as they dropped in from time to time to
have some beer and sandwiches. The evidence does not warrant finding that
Holmes actually observed any employee entering or leaving the meeting or
that anyone at the meeting other than Hart and Pierson was aware that Holmes
was watching the entrance. Holmes, after testifying that he was parked
by the church for about 5 minutes, gave the following answer when asked why
he had parked there :
They were having this meeting up there then and I wanted to see if
any of the employees that were supposed to be working were attending
that meeting. For my own personal reasons I wanted to know myself.
The Respondent contends in its brief that there could have been no coercion
or intimidation by virtue of Holmes' action on October 24, because no employee
of the Respondent knew that he was being watched. The undersigned does
not believe that any showing of knowledge by any employee that surveillance
is being engaged in is necessary to establish surveillance?' It is clear that
the Union's president, Hart, and one of its members, Pierson, observed Holmes
while he was watching the hall. And it is evident that the reason advanced
by Holmes for his action, to see if "employees that were supposed to be work-
ing were attending the meeting," is not a personal reason but has meaning only
'because of Holmes' supervisory position. On all. the'evidence, the undersigned
finds that, by Holmes' surveillance of the Union's meeting on October 24, 1949,
the Respondent engaged in unfair labor practices in violation of Section 8 (a) (1)
of the Act.
4. Kilian Schneider .
As to Manager Schneider, whose supervisory status has been unquestioned,
the General Counsel's brief advances five acts in violation of Section 8 (a) (1),
two of which are urged as interrogation, two as threats of reprisal, and one
as surveillance. These incidents will now be considered.
About July 23, 1949, some 2 weeks before he was laid off, Francis Sheon went
into the office "for 'something or other" and there met Schneider 25 At that
28 The undersigned credits Hart's testimony, corroborated by Pierson' s, as to Holmes'
activities in parking at the two different places above indicated . Holmes testified that he
parked only one place, by the church, although he had previously been to the bank. Even
if Holmes' testimony on that matter were accepted, the ultimate conclusion would not
be changed.
s' Lewis-Shepard Co., 74 NLRB 534.
sa There is nothing in the evidence to indicate that Schneider had sent for Sheon on
this occasion.
ARKPORT DAIRIES, INC. 1357
time Schneider told Sheon that he had-a list of the men who had signed cards with
the Union, and that Sheon's name was among, them. :Schneider asked Sheon
if he had joined the Union.' Sheon, uncertain as to'whether he was -"going
to get fired" for joining the Union, "kind of hemmed and hawed." However,
"Sheon, who had signed a card on May 14, finally, did tell Schneider that he had
Joined. Schneider said that Sheon had a right to join if he wanted to and that
he did not need to be scared or.nervous about it 28
On August 19, the day following the union meeting of August 18 which George
Waggoner had attended, Schneider engaged Waggoner in a conversation at the
plant about the meeting. The undersigned credits the following uncontradicted
version from Waggoner's testimony as to what transpired on that occasion : 24
Well, he [Schneider] sat down in a chair beside me, was talking about the
meeting up there. He said, "You went to that meeting, didn't you?" I said,
"Yes, I did." He says to me, he says, "Well, I think you are a stinker for
going up there to that meeting."- And, I says, "Why, no harm in it. My
day is done and I have a right to go where I want to." Then, finally, he
got up and went out and, of course, he called me a little name I didn't like.
• I let it go at that.
As to the foregoing two incidents involving Sheon and Waggoner, the under-
-signed concludes that they clearly established interrogation by Manager Schnei-
der of employees concerning their union activities in violation of Section 8 (a) (1)
-of the Act. That Section 8 (c) of the Act cannot serve as a defense, as the
Respondent contends in its brief, is patent from the Board's decision in Stand-
ard-Coosa-Thatcher Company, 85 NLRB 1358, 1363.
The charge of surveillance by Schneider stems from his presence at the
Union's meeting of October 24. The informal nature of this 6-hour meeting
is evident from what has previously been said. Schneider admitted that he
went up to the hose rooms that afternoon about 4 o'clock and named four
employees who were there then. He gave the following explanation of his
presence at the meeting:
One of the men that had been at the Hose house 'came down into the
office and in the presence of witnesses said that Mr. Hart wanted to see
me and wanted to have some beer and sandwiches with me. When I came
up to the Hose house Mr. Hart was not there, but I just had reached over
26 The above findings are made on credited testimony of Sheon , who impressed the
undersigned as a forthright witness. Schneider , when called by the Respondent, was
not questioned as to the above conversation with Sheba. Schneider did deny, however,
that anyone at any time had told him that Sheon had signed an application in the Union.
He also testified generally that he had not at any time mentioned unions to any of the
men he had hired or at any time asked any of the men he had hired whether they were
members of a union . Schneider estimated that he had hired over 50 employees and it
is clear that Sheon was hired by Schneider . To the extent that general denials such as
the foregoing on Schneider 's part conflict with the credited testimony of Sheon as to
the above conversation , Schneider 's general denials are not credited.
st Schneider did not testify specifically as to this conversation with Waggoner. It
cannot be said that his general testimony, cited in the preceding footnote, constitutes an
indirect denial because Schneider , who became the Respondent's manager in January 1946,
did not hire Waggoner , who started to work on the occasion of his last employment in
the fall of 1944 . The Respondent contends in its brief that Waggoner' s testimony was so
discredited that it must be entirely disregarded . The undersigned does not agree. It
is true that certain testimony of Waggoner pertaining particularly to the adjustment of
valves has not hereinabove been credited in the face of flatly contradictory testimony by
Jones. But in that situation it was obvious that Waggoner had a strong personal feeling
of animosity toward Jones, who he evidently believed had unfairly caused his demotion.
No such strong personal feeling was evident by Waggoner in his testimony about Schneider,
and Schneider did not deny that testimony.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to get a sandwich from the table when Mr. Hart walked' in, and when,
Mr. Hart came in, Mr. Hart shook my hand; we talked about the football
game, and when I, wanted to leave Mr. Hart said, "Why don't you stay
a little while longer and have another sandwich and beer?" I had another-
beer and another sandwich.
The foregoing testimony of Schneider as to the alleged invitation was not elabo-
rated or corroborated in any way. Schneider did not name the man who he-
testified had said that Hart wanted to see him, and there is nothing in the
record indicating that Schneider said anything that day to Hart about having
received an invitation.
Schneider evidently stayed approximately 25 minutes in the meeting room.
Hart was in the men's room when Schneider arrived. When Hart came into.
the meeting room, he found Schneider there having a sandwich and a bottle of
beer. The undersigned is satisfied, from the following testimony of Hart as.
to what then happened, that Hart had not extended Schneider an invitation to.
be there.
Q. Did you talk to Mr. Schneider then?
A. Yes. I knew at that time Mr. Schneider was out of order. I didn't
want to seem to be rude, so I didn't say anything about it. We talked about
the Cornell football game and so forth. Whether Mr. Schneider talked to-
anybody before that I don't know, because I was in the Men's Room.
The testimony of both Schneider and Hart is in agreement that they did not
discuss union matters. Hart admitted that he did not ask Schneider to leave- -
and that he might have asked him "to have another beer and sandwich."
Whether Schneider's presence at the October 24 meeting constituted surveil-
lance Doses a question which is not free from doubt.2e If, contrary to the facts-
found above as to Schneider's prior interrogation of two employees, the sur-
rounding circumstances revealed no indication that Schneider had been probing:
into the union affiliation and activities of employees, and if the undersigned.
were satisfied by more specific and persuasive testimony on Schneider's part that
he actually had had reason to believe that Hart had extended him a valid invi-
tation, through word conveyed by an individual named in Schneider's testimony,
these doubts would be strong, indeed 29 But the failure of the Respondent's top,
management representative -at the Arkport plant to give any indication when he-
saw Hart that day that he was at the meeting in response to Hart's invitation
is a further reason for the undersigned's doubt that Schneider really believed
that he had received a valid invitation from Hart to attend.
Certainly the right of employees to engage in union activities free from the'
scrutiny of management would be seriously undermined. if it were to be held,
that a top management official were free, upon the suggestion of just any em-
ployee, to attend a meeting known to be sponsored by a union. On the other
hand, the presence of a management official at a union meeting, in response to,
an officially extended invitation, is a different matter.' However, the under-
"This incident was one of the two as to which the Regional Director found that the,
evidence disclosed by his Investigation , which included "evidence that Schneider may
have been invited to attend the meeting," was insufficient to satisfy him of "improper
surveillance." The other Incident concerned Jones' presence at the October 24 meeting ;
It has been considered hereinabove.
it Is noteworthy that the above-found surveillance by Holmes of the meeting place,
just an hour or two earlier that day, apparently had not yielded any information as
to what employees were In attendance.
80 Cf. Strathmore Packinghouse Company , 68 NLRB 214.
ARKPORT' DAIRIES, INC. 1359
signed is convinced that, absent a valid official invitation to attend, such attend-
=ance constitutes surveillance, unless it clearly appears that management was
warranted in believing that the invitation was an' official one, after exercising
due diligence in that respect before conning to the meeting.
Not only was there no valid official invitation in the instant matter, but there
is no showing that the Respondent exercised such diligence as would have war-
ranted it in believing, before coming to the meeting, that any such invitation as
it may have received was actually an official one. Certainly Hart's failure,
when he saw Schneider at the meeting, to ask him to leave did not constitute an
invitation to come to the meeting. Nor does the probability that Hart suggested
that Schneider have another beer and sandwich, after Schneider had made him-
self at home by helping himself to a first serving, render innocuous Schneider's
presence at the meeting. The damage had been done when Schneider entered
the meeting room where employees of the Respondent were engaged in union
activities. Everything considered, the undersigned concludes and finds that, by
Schneider's attending the meeting of the Union on October 24, 1949, the Respond-
ent engaged in surveillance in violation of Section 8 (if) (1) of the Act.
We turn now to the two incidents involving the alleged threats of reprisal by
Schneider. Ebner testified credibly that about a month before the election,
Schneider discussed the Union briefly.with him. It is apparent that this inci-
dent took place approximately the latter part of September 1949.31 While the
record lacks details as to where the conversation took place and how it came
about, the gist thereof appears from the following testimony of Ebner on direct
examination, testimony which was confirmed but not elaborated on cross-
examination :
Q. What did he say to you at that time?,
A. Didn't say anything in particular. Just said that if this Union went
through things would be a lot different around there. You could take it one
way or the other.
Q. Did he say anything further there?
A. No, just said we might get more pay and less hours.
Schneider did not deny the foregoing testimony of Ebner. The Respondent's
brief contends, in essence, that no threat of reprisal or force or promise of
benefit is evidenced by the foregoing testimony and that any such discussion was
therefore within the permissible limits of Section 8 (c) of the Act. While sur-
rounding circumstances discussed elsewhere, in this Report cast suspicion on
the meaning and intent of Schneider's statements to Ebner, the undersigned is
not prepared to say that, on the showing in the record, that this conversation
exceeded 'the protection afforded by Section 8 (c) to. the expression of views,
argument, or opinion.
The remaining alleged threat arises from a statement attributed to Schneider
in connection with Pierson's discharge. While the testimony is contradictory,
the undersigned is persuaded that the evidence,. warrants finding that, about
May 30 in connection with Pierson's discharge, Schneider told Pierson something
31 The undersigned accepts Ebner' s consistent testimony that this discussion occurred
about a month before the election rather than the inference which the General Counsel's
brief advances that Ebner was mistaken in the date , and that this conversation , in fact,
took place about May 14, the date on which, according to Pierson 's testimony, Ebner
told him about having a conversation, with Schneider. For reasons which appear more
fully below in discussing Pierson's discharge , the undersigned is not convinced that Ebner
ever had such a conversation with Schneider as Pierson testified that Ebner reported
to him on May 14.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the effect that "anything could happen to anybody that fooled around wins
Charlie." " It is apparent that the individual referred to by Schneider was the
Respondent's president, Charles Cacioppo, who holds the position of president ill
each of the several corporations set out in Section I, above, and who had been
present the, preceding day when, according to the Respondent's version, it had
been decided 'to discharge Pierson for failing to show up for work on Sunday
evening. In view of all of the circumstances surrounding Pierson's discharge,.
to which consideration is given in the next section of this Report, the undersigned
is not convinced that whatever Schneider actually said at that time constituted.
a threat of reprisal for union activity, inasmuch as Schneider's remark of May
30 was made in a context involving a discussion of Pierson's having failed to.
show up for work the night before.
D.'The discharge of Samuel Pierson,
1. Facts and contentions in general
Pierson was hired by Schneider during the latter part of March 1949 as a
general clean-up man at 85 cents an hour on the night shift. During the latter
part of April 1949, Pierson's rate was advanced to 90 cents an hour. About a
month later, on Sunday, May 22, Night.Foreman McCarthy, who testified that
Pierson was "a good worker," told Pierson that Schneider wanted to see him
if he was interested in changing to a job in the powder room, where powdered
milk is manufactured. The next day, Pierson saw Schneider, who explained that,
as a replacement for an unsatisfactory worker, Pierson could have a job in the
powder room at night barreling powdered milk. Pierson decided to try the job,
which carried a 5-cent per hour increase and could lead to further advancement
when Pierson learned to operate the evaporating pans.
On Tuesday, May 24, Pierson started to work at 6 p. in. on the night shift in the,
powder room. His regular day off had been Thursday, and while Schneider was
planning to change it, Pierson had not been informed of the change. Pierson
worked Tuesday and Wednesday in the powder room. After finishing his
Wednesday night shift, which ended at 6 a. in. Thursday, May 26, Pierson had
breakfast at a restaurant in Hornell with employee Falzoi. Falzoi asked Pierson
if he was going to work that night. Pierson said that Thursday was his day off
but that he was not feeling well and probably would not go in anyway. Whatever
may have been the fact as to the seriousness and actual duration of Pierson's
illness," it is undisputed that Pierson did not again show up at the plant until
about 9 o'clock Monday morning, May 30, which is not his usual reporting time,
and that he did not see a doctor in the meantime. It is also undisputed that
while, under circumstances discussed below, it was reported to the Respondent
on Friday and again on Saturday that Pierson would not be in on those re-
spective nights because of illness, there was no report as to why Pierson did not
show up on Sunday night. Pierson first officially learned from Schneider on
the afternoon of Monday, May 30, that it had been decided the night before to
discharge him.
sa The quoted material is from the testimony of Mellous, Jr., who testified that he over-
heard the above remark. For reasons which appear more fully below, the undersigned
considers Mellous' testimony to be more reliable on this point than either the more
damaging version of Pierson or the denial of Schneider that any such remark was ever made.
as The undersigned makes no finding on this point . Falzol testified that' Pierson "wasn't
looking too well" and that he "looked very pale" on the morning of May 26. Pierson
testified that he "had an upset stomach, diarrhea, whatever you want to call it"
ARKPORT DAIRIES, INC. 1361
Before developing further the facts surrounding Pierson's discharge , it will be
of assistance in focusing attention to slate briefly the general contentions of the
parties. The Respondent contends that there is no evidence that it knew of
Pierson's union activities before discharging him, and that Pierson was dis-
charged "because of his failure to report for work, his failure to notify the office
that he would not report for work and' his untruthful statements to the manager
regarding treatment by a doctor." The General Counsel contends that several
specific incidents before . Pierson's discharge establish the Respondent 's prior
knowledge of Pierson 's union activities . The General Counsel further contends
that the timing , the surrounding circumstances , and various specific incidents
and statements demonstrate that . the Respondent is advancing "a mere pretext"
to conceal its real reason for discharging the leader in organizing its employees.
2. The issue of the Respondent 's prior knowledge of Pierson 's union activity
In turning now to the several specific instances advanced in the General Coun-
sel's brief to show prior knowledge , it should first be noted that none of the unfair
labor practices found in the preceding section of this Report constitute "back-
•ground" on this question , since 'the first of those activities , Schneider's interroga-
tion of Sheon about July 23, did not occur until almost 2 months after Pierson's
discharge.
In the General Counsel's view, the evidence establishes that the Respondent
knew, as early as May 14, the day the first applications were signed , about the
union membership and activity of Pierson . Pierson testified that when he asked
Ebner at the plant on the night of May 14 to sign a union card that Ebner said
that be would not dare to sign it in the plant because Schneider had told him
that "anyone found talking union or discussing union or signing up for a union
would be discharged immediately ." Schneider denied that he ever told any-
employees that they would be fired for joining a union . The testimony which
Ebner gave has been set out in an earlier section of this Report and does not, in
the undersigned 's opinion , corroborate the foregoing testimony of Pierson. Hence
the uncorroborated hearsay testimony of Pierson cannot bottom a finding that
Schneider made any such statement to Ebner.
It is urged that on May 19, the Respondent learned that Pierson was organiz-
ing for the Union because McCarthy was present when Pierson handed an appli-
cation to employee William Baird . Baird, who did not testify , did sign an
application which is dated May 19. However , Pierson's testimony does not con-
vince the undersigned that McCarthy actually saw an application pass between
Pierson and Baird in the laboratory on the night of May 19. McCarthy , on direct
examination , denied knowing that Pierson was a member of the Union while still
employed at the plant . On cross-examination , McCarthy ' admitted that after
Pierson had been discharged , Baird told him "that he thought Sam was a union
man, but previous to that I couldn't say he did ." In his none-too-convincing
answer to a prior question as to whether Baird had told him about 3 days before
Pierson 's discharge of Pierson 's membership , McCarthy replied, "I don 't remem-
ber that . I am not saying he didn't , but I can't remember his saying it."
While the matter is not without doubt, the undersigned is not persuaded that
McCarthy learned on the night of May 19, or at any time prior to Pierson's dis-
charge, of the union membership or leadership of Pierson.
Two additional instances , both allegedly occurring on the evening of May 21,
are advanced to establish knowledge on the Respondent 's part. The first is.
based solely on Pierson 's testimony that Baird , in the presence of Falzoi, said
1362 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
that he had "pulled an awful blunder" during a-conversation with Schneider at
the Arkport Inn by` telling Schneider that he thought, after working 18 hours,
that it would be a good thing to have a union and that he thought he would "have
to see Sam to get an application blank." - Although Baird was not called as a
witness, Falzoi was called by the General Counsel, but was not asked about the
above conversation, which allegedly took place in his presence. Schneider denied
that he had ever had any such a conversation with Baird. Under the circum-
stances, the undersigned deems Pierson's uncorroborated testimony insufficient
to support any finding that Schneider learned from Baird of Pierson' s connection
with union activities.
Whatever Baird may have told Pierson earlier on^ May 21;' it is clear from
the testimony of Schneider, Pierson, and Melious, Sr., that there was some dis-
cussion of unions at the plant on the night of May 21 when those three individuals
were present.. According to Pierson, Schneider came up to him and Melious and
"started a conversation with the two of us concerning unions." Pierson's version
of this conversation was as follows :
Well, I couldn't recall word for word what he said, but he did discuss
union and that unions were no good ; that he had worked in Horse Heads-
where they have a union, and the take-home pay was much smaller than it
was at the Arkport Dairies. He also told me his father belonged to a union
over in Germany, and that all the trouble that unions caused, and if anybody
was smart they wouldn't have anything to do With a union. I mean, that
was the end. There was a lot more conversation. That was the
conversation.
When asked to state the substance of the conversation, Melious gave the fol-
lowing answer :
We talked about various things, some about unions in the old country,
about his father joining the union and being fired. Unions was no good, in
general. Some place where he worked he got less wages than he would
without the union. ' Various things he talked about. I don't recall them all.
Schneider testified that the conversation was between him and Pierson, with-
out Melious saying a word. Schneider denied that the Horsehead plant was
mentioned and he testified credibly that he had worked at Horsehead in 1936,
years before that plant was organized in approximately 1947 or 1948. According
to Schneider, who could not recall who initiated it, the conversation started with
a discussion of his experiences with the Dairymen's League of New York City,
and wound up about unions. The tenor of the conversations was related by
Schneider as follows :
That I worked for the Dairymen's League in New. York City and after
having completed four years at Cornell University, and acquiring a Bachelor's
degree in Science I was offered $22.50 a week, where the man who was janitor
in the place had a union card and got $37.50 a week. I brought out. the
fact that I didn't think it was fair treatment because I consider myself a
worker. And Mr. Pierson said, "Yes, Unions are good things in some places,"
and I agreed with him.
Assuming that Schneider started the conversation of May 21, the undersigned
believes that what was said falls somewhere between the above-quoted versions
14 According to Pierson, his conversation with Baird took place 30 to 45 minutes earlier
than the one now to be considered.
ARKPORT DAIRIES, INC. 1363
of three highly interested witnesses 85 It cannot be said that any of these three.
witnesses was so candid that credibility factors tip the scales in this situation.
Under the circumstances,' the undersigned does not believe that the evidence war-
rants finding that Schneider made any statement to the effect that "if anybody
was smart they wouldn't have anything to do with a union,", a statement which
appears only in Pierson's testimony. And while it would appear from Schheider's
version that Schneider learned during that conversation that Pierson thought
unions were a good thing in some places, the evidence does not warrant finding
from this conversation, an attitude of actual hostility on Schneider's part toward
unions or knowledge on his part of Pierson's leadership with respect to union
activities at the Arkport plant. It is noteworthy that within 3 days, Pierson was
working in the powder room on a more promising job. There is no contention
that Pierson was given an opportunity for advancement in order to deter him
from leadership in the Union, and the record does not warrant such an inference.
From all of the foregoing, it is evident that none of these specific instances
advanced by the General Counsel establishes that the Respondent had knowledge
of Pierson's union activities prior to his discharge. Nor does the undersigned
believe that it can be inferred, merely from the smallness of the plant $e and
of the two communities in which organizational activities took place, Hornell
and Arkport, that the Respondent must have learned by the end of May of this
organizational activity and its leadership, although it is quite possible that it
may have done so. Thus, if there were no additional elements to be considered,
Pierson's case would appear to fall for lack of knowledge on the part of the
Respondent, even though Pierson was actually the leader in organizing, and in
spite of the fact that the Respondent subsequently engaged in interrogation of its
employees and in surveillance of union activities 37
But it is undisputed that on May 31, 1949, the Respondent did learn from
Hart of Pierson's union leadership and that it thereafter affirmed its decision
as to Pierson's discharge. It thus becomes necessary to examine the highly con-
flicting evidence as to the events immediately surrounding Pierson's discharge
to determine whether the Respondent's actions were so unreasonable as to
warrant the inference that its real motive in affirming Pierson's discharge after
it clearly had knowledge of his union leadership must have been to rid itself of
the leader of the Union.
3. The decision to discharge Pierson
There is no dispute that on Friday, May 27, Piefson's mother, at Pierson's
request, telephoned Holmes that Pierson would not be in to work that night
because he wa's sick, and that Holmes in turn informed Schneider, whose prac-
tice it was to come down to the plant at night several times during the course
of the week. It is also clear that, at Pierson's request, Falzoi told Schneider
at the plant on Saturday evening, May 28, that Pierson was sick and would not
be in to work that night. According to Schneider, Falzoi also told him, when
reporting Pierson off for Saturday night, that Pierson would be in to work
ss It should be noted that Melious, Sr ., admitted that "last spring" he had threatened
Schneider that he "would get him out of the plant as manager ." Further, the record
contains a Christmas card which, Pierson sent Schneider in December 1949 on which
Pierson, who had formerly been a paid union organizer and clearly understood back-pay
awards, wrote, "To date you owe me $2182.40. What a present."
66 The largest payroll week in May 1949 was for May 29, when 59 people, aside, from
Schneider , were working . Of these 59 , at least 6 were supervisory , office, and laboratory
employees not in the unit.
3' Carolina Mills, Inc., 92 NLRB 1141.
961974-52-vol. 95-87
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"tomorrow night for sure." Falzoi testified that when he had visited Pierson's
home Saturday morning, that Pierson had asked him "to tell Schneider he
wouldn't be in until he felt better," and that he did tell Schneider that
Pierson similarly testified that he told Falzoi to tell Schneider that he would
not -be in until he felt better. However, in a letter dated "May 31-June 1," which
Pierson wrote to Hart,38 explaining why he believed he had been "fired for being
the one that carried the cards," Pierson stated that on the Saturday in question
he had asked Falzoi to tell Schneider that he would be in as soon as he felt
better, "Sunday, if possible," and if not Sunday, as soon after as he could.
While Pierson's letter to Hart, apparently written sometime within a week of
the. events discussed therein, is clearly a self-serving document, it was written
some 16 months before he testified at the hearing. In the undersigned's opinion,
this letter is less tinged, in some respects, with rationalizations and distortions,
than some of Pierson's testimony. Everything considered, the undersigned be-
lieves that Pierson's letter more nearly reflects what Pierson asked Falzoi to
report than the testimony of either of them does, and that Schneider honestly
got the impression from what Falzoi did report Saturday night that he could
expect, absent word to the contrary, that Pierson would return to work the fol-
lowing night, Sunday, May 29.
About 6 o'clock Sunday evening," Falzoi reported for work and found that
his time card was not in the rack. He went to the office where he found Schneider
"very upset."' Falzoi saw his time card, along with that of Pierson, and pos-
sibly Melious, Jr's.. on Schneider's desk. Schneider told Falzoi that he was late
and asked who was supposed to be there at 5 o'clock to take care of the tank
trucks. Falzoi said that he was supposed to come at 6 o'clock that night and
that he believed that there was some misunderstanding, as he and Melious alter-
nated coming in at 5 o'clock on Sundays, and it was Melious who was supposed
to come in at 5 o'clock that afternoon. McCarthy, the night foreman, who had
come into the office about the same time as Falzoi, explained to Schneider that
there had been a misunderstanding as to' whether Falzoi or Melious was to be
in at 5 o'clock that Sunday, and indicated that he probably had been at fault
for not instructing Falzoi to come in at 5 o'clock that day." At some point before
Falzoi left Schneider's office, possibly early in the discussion, Schneider asked.
Falzoi where Pierson was. Falzoi, who had not seen Pierson that Sunday before
coming to the plant, replied that he had thought that Pierson was there and
that he did not know where Pierson was.
Schneider testified that- he had decided about 6: 30 that Sunday evening to
discharge Pierson because he was "very mad" about being shorthanded that
Sunday. It is noteworthy that the Respondent's president, Cacioppo, spent
38 It appears likely that this three-page longhand letter was not completed by Pierson
until several days after its date, as Hart wrote the Regional Director that it had been
postmarked June 7, 1949.
30 The precise time and the exact sequence of some of the discussion now to be considered
is not clear from the record.'
4o The quoted characterization is from Falzoi's testimony.
41 While it is not clear just who actually had been at fault, there is no doubt from, the
testimony of Schneider, Falzoi, and McCarthy, upon his analysis of which the undersigned
has based the above findings without discussing variations therein, that it was the explana-
tion of McCarthy that Falzoi and Melious "got crossed up somewhere," and McCarthy's
apparent assumption of at least part of the responsibility for the misunderstanding, which
eventually satisfied Schneider as to T+alzoi and Melious, Jr.
42 The testimony of Schneider and McCarthy to the effect that Falzoi made such a reply'
was more persuasive than Falzoi's testimony, "No, I don't believe he [Schneider] questioned
me about him [Pierson]" and is more consistent with all of the probabilities inherent in
the surrounding circumstances.
ARKPORT DAIRIES, INC. 1365
most of that Sunday at the Arkport plant. According to Schneider, he told
Cacioppo about 6 o'clock that evening that he was short two men, without men-
tioning their names," and that Cacioppo said that. if there was no reason for
their absence, he might' as well get rid of them and get someone who would
get in on Sunday night.
It is possible that the two men Schneider had in mind at the time he made
his remark to Cacioppo were Pierson and Falzoi, two of the three employees
of the Respondent who had first met with Hart on May 7." And it is a fact
that in the above-discussed former case, Trial Examiner Kent found in his
Intermediate Report that the son-in-law of Cacioppo, Finn, had gone to Cohocton
and intervened in the local situation thereby discharging three union drivers
when the foreman over those drivers refused to do so 45 It does not appear
whether Finn's action was motivated by a personal dislike of unions, by pressure
arising from interunion rivalry in organizing the drivers, or by an antiunion policy
on the part of the respondents in the former case, but the question of whether
the discharge of Pierson may have involved connivance between Cacioppo and
Schneider is suggested. Yet no. way is apparent whereby Schneider and Cacioppo
could have had foreknowledge that these two union leaders would simultaneously
place themselves in jeopardy on the very Sunday that Cacioppo was visiting the
plant; even though the less active of the two was cleared -by McCarthy.in such a
way as to leave only Pierson to be actually discharged. Upon careful consideration
of all the possibilities, the undersigned deems it more likely that Cacioppo's
presence at the plant this crucial Sunday was a mere coincidence, and that
Schneider's anger at being shorthanded was genuine and was aggravated by
Cacioppo's presence. In any event, the undersigned is not satisfied that the
evidence warrants an inference that Schneider and Cacioppo discussed discharg-
ing any particular employee, including Pierson, by name on Sunday 46
• 4. The events of Monday, May 30, 1949
On Monday morning, May 30, at about 9 o'clock,'an hour at which Pierson had
never before reported for work, Pierson went to the plant4° Pierson looked
for Schneider and could not find him. He saw Holmes, the assistant manager,
and told Holmes that he was reporting for work. Holmes told Pierson that
431t is not clear which two of the three, Pierson, Falzoi, and Melious, Jr., Schneider
had in mind when he made this remark, which presumably preceded his conversation
with Falzol and McCarthy.
44 Falzoi, whose failure to show up when Schneider thought that he should that Sunday
night was ironed out by McCarthy, voluntarily terminated his employment with the
Respondent very shortly thereafter when he was recalled to work by the Erie Railroad..
The third, employee at the May 7 meeting, Gaylord Dodge, continued in the Respondent's
employ, but'it is not clear whether Dodge ever joined the Union.
46 The following language from that Intermediate Report summarizes what happened
on that occasion
Not only did Foreman Wagner warn Donald Hoag and Burrows that they would
be discharged if they failed to desist from engaging in union activities, but Wagner
also admitted that a day or two before Superintendent Finn discharged the three
employees, Finn had requested Wagner to name the employees responsible for the
union activities at Cohocton and when Wagner named Carl Hoag, Donald Hoag, and
Burrows, Finn ordered Wagner to discharge all three of them. Thereafter, when
Wagner refused to do so, Finn went to Cohocton on July 19, 1947, and summarily
discharged all three.
46 Schneider testified persuasively that Cacioppo did not tell him to fire Pierson, or
,anybody else, specifically, and that Cacioppo did not "know Pierson from the man in
the moon."
47 The undersigned believes it likely that Pierson had received word in the meantime
as to what had transpired the night before between Falzol and Schneider, even if Pierson,
as lie testified, had not actually seen Falzoi that Monday morning.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schneider had said that he was not going to come back to work and that Pierson
would have to see Schneider . Holmes , to whom Pierson 's mother had first re-
ported Pierson as being ill , asked Pierson how he was and received the reply
"pretty good ." Then , according to testimony of Holmes which the undersigned
credits as plausible in the light of the entire record , substantially the following
additional conversation took place : ye
And I said, "What's the trouble?" "My heart is had, got a bad heart."
And I said, "Did you go to see a doctor?" And he said, "Yes." I said,
"What doctor did you see?" He said, "That German doctor." I said, "Herz?"
He said, "Yes, that is the man."
When Pierson first went to Schneider's house, Schneider was not there.
Pierson then drove over to see McCarthy who told him that he did not know
anything about it and that Pierson would have to see Schneider. About 3: 30
p. in. that Monday, which was Memorial Day, Pierson saw Schneider at his
home. Their versions of that conversation differ in several significant ways.
According to Pierson's version of what transpired, Pierson told Schneider
he was reporting for work. Schneider said that he was "all through" and
Pierson asked him why. Schneider said, "Well, you were off," and Pierson
replied that he "was reported off."" Schneider then said that Cacioppo was-
up, from New York on Sunday ; that Melious, Jr., did not show up for work
Sunday night; and that "Cacioppo got mad and' fired you because you wasn't
here and we were shorthanded." Pierson replied that it did not make sense
to fire him because Melious had not shown up. Schneider replied that there
was nothing he could do about it and that Pierson should go home, and come
in Tuesday morning and that Pierson would be "in a better position to bargain
for myself." 60 Pierson testified that Schneider did not ask him and that he
did not tell Schneider what had been the "matter" with him during his absence.
Schneider's version agrees with Pierson's in that Schneider testified that he
did not ask and that Pierson tjid not say anything about "being sick." 61 Accord-
ing to Schneider, Pierson explained that he had been unable to find him previously
that day but had seen Holmes and McCarthy who had both'said that he would
have to see Schneider. Pierson then asked why he could not "get his job back."
Schneider said that Pierson had.been needed at the plant very badly on Sunday
night, a night everybody likes to take off ; that at that time of year they had
so much milk they did not know what to do with it ; that Melious, Jr., and
Pierson were not there and he was "shorthanded all around" ; that it "made
things tough in the plant all around for everybody" ; that "the boss," Cacioppo,
was up from New York ; that he told him he was short two' men who did not
show up for work ; and that Cacioppo said that if there was no reason for
their not showing up, he "might as well get rid of them" and get someone who
would come in Sunday night. According to Schneider, Pierson said that he
.48 Except as to the latter part of the conversation concerning Pierson's illness, there
was no material difference in Pierson's and Holmes' versions of their conversation.
Pierson was under Dr. Herz' care because of a heart condition, and Pierson later admittedly
did give Herz' name to Schneider as the name of his doctor.
4e There is no dispute that the last time Pierson was reported off was when Falzoi
reported him off Saturday evening.
50 The version of this conversation in Pierson 's letter, which includes the identical above-
quoted phrase, is similar to that of his testimony, except that in the letter the words
"for my check" appear also in connection with coming in Tuesday.
11 The evidence does not establish whether Schneider had yet learned of Pierson's
explanation some 6 hours earlier to Holmes.
ARKPORT DAIRIES, INC. 1367'
"needed his job more than his right arm," but the conversation ended without
Pierson making any explanation of why he had not "shown up for work."
While it;would be futile to attempt to reconstruct from the testimony of two
such interested and • clearly biased witnesses, what actually was said in detail
during this conversation, the undersigned believes that, on the whole, Schneider's
version more nearly reflects what actually transpired. It is likely that, upon
finding Schneider, Pierson did relate how he had already seen Holmes and
McCarthy, as Schneider testified. And if Pierson did make any statement to
the effect that he was "reported off," it is clear that Pierson did not follow it
up at any time during that conversation with any explanation of why he had
been off. It would appear reasonable for an employer to expect that an employee,
in asking that a decision to discharge him be reconsidered, would make whatever
explanation he might have. Yet, on either version of this conversation, such
an explanation, which was timely although Schneider never specifically asked
for, it, was not made.
In any event, Pierson knew at the time of this conversation that he had not
been to see a doctor during his absence, although he had at least intimated as
much to Holmes that morning. Pierson also knew that he had not reported
that he would be absent Sunday, although he had sent word by Falzoi on Saturday
to the effect that he hoped to be able to report by Sunday. It should be noted
that on both versions of the Monday afternoon conversation, Schneider failed
to make any explanation to Pierson as to why Melious, Jr., had not also been.
discharged and the undersigned therefore believes that Pierson did protest the
unfairness of singling him out when Melious had also been absent. In addition,
the undersigned believes that, contrary to the import of Pierson's version,
Schneider did not protest his impotence in the matter or ascribe the decision
to discharge Pierson entirely to Cacioppo, but rather made the explanation
along lines given in his above-summarized testimony. Finally, while the under-
signed does not believe that Schneider said anything which specifically closed
the door to further consideration of the matter, the undersigned is equally
satisfied that he did not use any phrase to the effect that Pierson would later
be in a better position to "bargain" for himself.
As to whether they .had an additional conversation at the plant on Monday
night, the testimony of Schneider and Pierson is flatly contradictory. Schneider
testified that he was at the plant that night around 8 o'clock for about half
an hour but he unequivocally denied seeing Pierson that night at the plant.
Pierson testified on direct examination that he met Schneider at the plant about
10 o'clock Memorial Day evening and that the substance of their conversation
was as follows :
A. Mr. Schneider was discussing union and its bad points, and he said,
"You know, Sam, anybody tries to pull anything on Charlie, don't get along
here very well." He says, "They always get caught up with."
Q. Did you say anything in response to that?
A. No. I said-I asked him for my money as long as I, was fired, and
he said, "Well, if I was you, I wouldn't take your money. Why don't
you wait until payday and get your check. In that way you'd be laid off
and you'd have a good record with the Company." I informed -him -as
long as I was fired I would like to have my money. We went up into
the office. Mr. Schneider opened the safe and the money wasn't there.
One of the employees-one of the other employees, according to Mr. Schneider,
had taken it home with him by mistake or forgot to put it back in the safe.
He told me to come back the next morning for my pay.
1368 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
On cross-examination, Pierson testified that it might have been 9'o'clock when
he was at the plant, and that he told Schneider that he had been sick when
Schneider asked him that evening what had been the matter with him. It is
significant that the version of what transpired at the plant that night which
Pierson related in, his letter to Hart differs in several significant respects from
his testimony at the hearing. The full text of the letter as it pertains to this
matter reads :
That night May 30 I again went to the plant and Mr. Schneider was there.
I again ask him why I was fired and he said at that time that Charlie
said fire him, meaning me. And that the fellows around there including
me would find out that anyone who tried to pull anything over on Charlie
did not last long around there. I ask Schneider what he meant by that
statement. But he wouldn't answer me.
In addition to the foregoing evidence, Melious, Jr., testified that one night
at the plant he overhead Schneider say to Pierson that "anything could happen
to anybody that fooled around with Charlie," while Schneider testified that
he never told any employees that "Cacioppo would have a man fired if he joined
a union."
In the undersigned's view, upon considering the foregoing evidence in its total
context, a brief conversation between Pierson and Schneider did take place
at the plant Monday evening. However this conversation did not involve any
discussion of unions or of Pierson's final pay. It revolved around Pierson's
questioning of Schneider as to why he had been singled out for discharge. Dur-
ing this brief discussion, Pierson protested what he believed to be an arbitrary
action ordered by Cacioppo, while Schneider made a statement which, in con-
text, essentially meant that Cacioppo was severe in his attitude toward em-
ployees who did not take their responsibilities to the Company seriously. It
appears that the nearest approximation in the evidence to what Schneider said
on that occasion is the above quotation from the tesimony of Melious, Jr.
5. The developments on Tuesday, May 31
While there is no question that a number of telephone and face-to-face conver-
sations, pertaining to Pierson's discharge, occurred during the next 2 days,
the sequence of some of them is difficult to. determine and the testimony as to
conversations between Pierson and Schneider is flatly contradictory in many
respects. However, the undersigned has no doubt that the first thing. which
occurred on Tuesday, May 31, was that Pierson sent a telegram from Hornell
at 7: 47 a. in. It was addressed to Hart, was received at 8 a. in. in Ithaca,
and read : 68
I WAS FIRED YESTERDAY PLEASE ADVISE WHAT TO DO
It is also evident from the testimony of both Pierson and Schneider that they
saw each other at the plant around 9 o'clock Tuesday morning. As to what
transpired then, Pierson testified that "Mr. Schneider paid me off in. cash" ;
that 'he bad always previously been paid by check; and that there was no dis-
52 This is the testimony quoted in an earlier section of this Report.
"s The date and time of sending and receiving appear on, the telegram ..whichl is. in-.-
evidence. On the face of this telegram, it appears that Pierson was in error in his
testimony that he sent this telegram after he returned from seeing Schneider at 9 o'clock
that morning at the plant . Moreover, Pierson 's letter lists the sending of. his telegram
as the first occurrence on this Tuesday morning.
ARKPORT DAIRIES, INC. 1369
cussion on that occasion of'his having been sick. According to Pierson, it was
Monday night that he first told Schneider that he had been sick, and it was
not until a conversation on Wednesday morning that he gave Schneider the.
name of his doctor. It should be noted that there is not a word in Pierson's
letter to Hart as to when or whether he ever mentioned to Schneider either his
having been sick or the name of his doctor. That letter is equally silent as to
when, and in what form, Pierson received his final pay.
Schneider testified that Tuesday morning Pierson asked him whether he "would
reconsider and take him back." According to Schneider he told Pierson that
in the past they had reconsidered "some employees that had a reasonable ex-
cuse" and asked him if he had "been sick for four days." Pierson said that
that was right and Schneider asked him if he had seen "any doctor during those
four days." Pierson said that he had seen Dr. Herz in Hornell. Schneider asked
when he had seen the doctor and Pierson said that "he saw him on Thursday
afternoon of that week." Schneider did not indicate just how their Tuesday
morning conversation ended, but did testify that he asked about the doctor
because he wanted to check up on the matter. Schneider did not deny paying
Pierson in cash at that time. And Schneider did not deny that he had ever
suggested that Pierson wait until payday and get his check in order to have
his record show a layoff, a suggestion which Pierson testified was made on
Monday night.
The undersigned finds, everything considered, that when Pierson went to the
plant :Tuesday morning, substantially the conversation which Schneider testified
to, as set out above, took place, including Pierson's telling Schneider that he had
seen Dr. Herz on Thursday afternoon.'° It may well be that at the close of their .
conversation, Schneider, who was, planning to investigate the matter further,
suggested that Pierson wait for his check. And if Pierson did insist on being
paid in cash that morning, it was Pierson who knew that his representation
about seeing Dr. Herz would not stand up under investigation. As to why
Schneider, who then considered that Pierson had already been discharged, was
willing at that point to check up on the explanation which 'Pierson had given,
Schneider gave the following spontaneous and convincing answer on cross-exami-
nation by the General Counsel:
If a man has a reasonable excuse when on Sunday night you are short-
handed, one man is already out that should have been there, another fellow
comes in an hour late, and one doesn't show up, you get very mad, and that
is just how Ifelt-plenty mad, and I didn't feel-better about it until Tues-
day morning, and I wanted to give the man a break. If the man had seen
Dr. Herz and Dr. Herz said the man was down and was a sick man and he
told him to stay away, I would have taken that man back „ 66
It was about noon that Tuesday when Hart went to his office in Ithaca and
found Pierson's telegram awaiting him. He immediately telephoned Cacioppo,
w Pierson testified that he gave Schneider the name of his doctor in a conversation on
Wednesday morning, June 1. The undersigned is convinced that it happened rather on
Tuesday morning , as Schneider testified . Pierson's testimony, set out below, relative to
what he, told Schneider on Wednesday regarding the doctor, was far from persuasive.,
The undersigned does not credit Pierson's testimony that he merely told Schneider that
he was under the doctor 's care without indicating when or whether he had seen his
doctor during the 4 days in question . Furthermore , Schneider 's testimony that Pierson
told him I that,he had seen Dr Hera Thursday afternoon - is..,consistent with subsequent
developments , is plausible , and was convincing when given.
66 The remainder of the answer , which is quoted below , pertains to how Schneider felt
after making his investigation.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who was apparently at that time in Brooklyn , and, calling him by his first^name,
said that . his dairy at Arkport had just discharged an employee named Pierson,
who was a member of the Union and signing up the employees at Arkport.
Cacioppo said that he did not know anything about it. Hart said that it seemed
"very funny" to him, since Pierson "happened to be the fellow who was carry-
ing our union applications ." Hart also told Cacioppo that the Union had a
majority of the Arkport employees signed up and requested recognition as bar-
gaining agent . Cacioppo said that if the Union was certified by the .Board after
an election they would sit down "and do business . Cacioppo then told Hart
that as to Pierson he should call Schneider and "check up on why he was dis-
charged." Be
A few minutes after his conversation with Cacioppo , Hart talked with Schnei-
der at Arkport by telephone . He told Schneider that he understood that Pierson
had been discharged ; that he had already talked to Cacioppo about the matter;
that Cacioppo had suggested that he get in touch with Schneider concerning
Pierson 's discharge ; and that he wanted to inform Schneider that Pierson was
carrying union applications and signing up Arkport employees . Schneider said
that he did not know that Pierson was carrying any application cards and
informed Hart that Pierson had not been at work for several days. Schneider also
apparently made reference to Cacioppo having been present at the plant when
it had been decided to discharge Pierson and indicated that unless Cacioppo
personally directed that Pierson be reinstated , Pierson would not get his job
back.67
About 2 o'clock Tuesday afternoon , Pierson telephoned Hart. During this
.conversation , Hart told ' Pierson that he did not know why he had been dis-
charged ; that he had talked with Cacioppo ; and that Pierson was to return to
the plant and "ask for his job back ." Pierson told Hart that he had been sick
and had reported his illness to the plant . No mention was made of his having
seen a doctor.
Pierson testified that he saw Schneider at the plant about 3: 30 or 4 o'clock
Tuesday afternoon and told him that he had been instructed to come back and
ask for his job ; that Schneider said that his answer would depend on the con-
yersation he would have when he received a telephone call from New York which
he was awaiting ; and that he and Schneider agreed that he would come back
the next morning .68 Believing that Pierson would normally have returned to the
plant, shortly after receiving instruction to do so from Hart under the circum-
stances narrated above, and being satisfied that Schneider was in the process
of reconsidering Pierson's . discharge , and may have well been awaiting a call
from Cacioppo before being ready to give his final answer, the undersigned finds
that a conversation took place on Tuesday afternoon substantially as set out
above.
Be These findings are based on testimony of Hart given In both the R-case hearing and
In the hearing before the undersigned. The quotations are from the R-case record.
Cacioppo did not testify, and Hart's testimony in the two records is consistent as to the
substance of what was said.
57 These findings are based upon the undersigned's evaluation of the testiinony`of Hart
and Schneider which, upon careful consideration, impresses the undersigned as essentially
more supplementary than- contradictory in nature. The undersigned believes, in line with
Hart's testimony, that this conversation took place so soon after Hart had talked with
Cacioppo that there was not time enough for an intervening conversation between Cacioppo
and Schneider. However, it Is likely, although not certain, that Schneider had'already
telephoned Dr. Herz, with the result set out below, before holding the above conversation-
with Hart.
68 Such a conversation Is shown in Pierson's letter as occurring on Tuesday without
the time being specified.
ARKPORT DAIRIES, INC. 1371
On all of the evidence, the undersigned is convinced that on Tuesday, May 31,
Schneider had a telephone conversation with Dr. Herz and at least one telephone
conversation with Cacioppo, although the exact times of those conversations are
uncertain. Whatever may actually have happened between Schneider and
Cacioppo, the only conversation with Cacioppo about which Schneider testified
was placed by him as having been held before Hart had called Schneider. Be
that as it may, it is possible that more transpired between Cacioppo and Schneider
that'day than would appear from the following testimony of Schneider as to that
one conversation with Cacioppo :
He [Cacioppo] wanted to know what it was all about, what was going on.
He said he received a call from Mr. Hart, and Mr. -Hart was all excited. I
fired a man that was carrying Union cards and he told me exactly what he
told Mr. Hart, that it was up to me, he would take no part in it. If the man
didn't show up for work, I am running the plant in Arkport. I hire and
fire people up there.
As to Schneider's telephone conversation that Tuesday with Dr. Herz, who
was not called as a witness, the undersigned finds, on credited testimony of
Schneider, that he telephoned Herz and asked him if he had seen Pierson on
Thursday afternoon, May 26,.and Herz replied that he had not seen Pierson for
the last 6 months. Schneider asked Herz if he would be willing to give him a
written statement that Pierson was not at his office on the afternoon of May 26.
Herz said he would and Schneider indicated that he would be down sometime
the next day to get the statement. The next day, when Schneider went to Hertz'
office, Herz said that he did not even have office hours that Thursday and was out
of town. Dr. Herz then gave Schneider a signed statement on his letterhead,
dated June 1, 1949, which reads :
Thursday afternoon, May 26, 1949, I had no office hours and did not see
any patients in my office.
There is some ambiguity as to whether Schneider phoned Herz on Tuesday, May
31, and picked up the statement on Wednesday, June 1, or whether it was not
until June 1 that he telephoned and June 2 that he got the statement. On direct
examination , Schneider's testimony about telephoning Herz follows, in im-
mediate sequence, but without any specification as to time, his testimony that`
Pierson told him on Tuesday morning that he had seen Herz. Schneider further
testified, on direct examination that, after he had gone to Herz' office, he then
saw Pierson for the last time on Wednesday afternoon. Thus, Schneider's
direct examination fixed the phone call as Tuesday, and the office visit as Wed-
nesday. On cross-examination, Schneider first testified that it was around noon
on Wednesday that he went to see Herz. After Herz' above-quoted note had
been introduced into evidence, Schneider was uncertain as to whether he had
gone to see Herz on June 1 or June 2. After the date on the statement was
pointed out to him on cross-examination, Schneider testified that he called Herz
"the day before and arranged to pick it up the next day" and agreed that he "got
the statement on June 2." However, in answer to the very next question,
Schneider testified that he had talked to Hart on Wednesday about 11 o'clock.
Yet it is quite clear that that conversation, as is found above, actually took place
about noon Tuesday.
The. undersigned is convinced that, during his cross-examination, Schneider
became confused and placed the events in question a day later than they actually
occurred and that Schneider -actually telephoned Herz on May 31 and picked
up the statement on June 1, the date which it bears. Ju the undersigned's opinion,
1372 DECISIONS OF NATIONAL "LABOR RELATIONS BOARD
it is very unlikely that Schneider would have delayed a day in contacting Herz
to check the statement Schneider made on Tuesday morning, especially in view
of what was transpiring that Tuesday. In any event, there is no doubt in the
undersigned 's mind that Schneider - had-consulted Herz before he gave Pierson
his final decision on Wednesday, June 1. And there is also no doubt that
Schneider, an exacting, scientifically trained, relatively young man,68 who evi-
denced none of that mellowness which sometimes compromises with human
frailty, actually revealed his state of mind, after checking with Herz, when he
testified : 80
But, under the circumstances, when I found out that he [Pierson] had not
seen the doctor, he was finished for all time. That answers your question,
I hope.
6. The final discussion on Wednesday, June 1
As to the final discussion between Pierson and Schneider, the testimony is
contradictory in practically every respect. Pierson testified that this June 1
conversation occurred approximately at 9 or 9: 30 o'clock at the plant and that
their conversation was as follows :
Well, to the best of my knowledge and recollection the conversation-Mr.
Schneider asked me while I was off sick, "If you was off sick," he says, "who
is your doctor when you are off sick?" I told him Dr. Herz at Hornell, New
York. And he didn't ask me and I didn't tell him whether I went to a doctor.
He asked me if I was under a doctor's care. I said, "Yes, I was under a
doctor's care...." 01 In the conversation that morning Mr. Schneider told
me, he says, "You will do no more organizing in this plant. Any more
organizing you do, you do out in the street." I informed Mr. Schneider that
I didn't have to do any more organizing ; that Mr. Hart had already filed
with the Labor Board, we had enough applications . . . . Mr. Schneider
said to me that applications didn't mean a damn thing to him because every-
body who had signed an application would be out of there before they could
have an election.
Pierson's letter to Hart about his discharge closes with the following account
of what happened when he "returned on Wed June 1st at 9 a. m." "
Mr. Schneider called me in his office and stated that I was finished at that
plant. And that any more organizing I would do that I would do in the street.
That what I had done by organizing the union was dirty and underhanded
and that everyone that had signed cards would be out of there; meaning
the Arkport Dairies, before they ever got a chance to pay their dues. There
were a few more words, but what was said gives me to believe that I was
fired for being the one that carried the cards and was the leader in. the
movement to organize.
w Schneider received his Bachelor of Science Degree in 1939.
w This is the remainder-, of'a long, spontaneous answer, most of which has been quoted
above.
61 At
this point the examination digressed from the conversation itself and Pierson
testified that he had been under Herz ' care for "heart condition" since June 21, 1948;
that he consulted Herz "off and on because of this heart condition "; and that he kept
getting a prescription which Herz had given him filled and was still taking Herz' medicine
at that time. There is no contention that Pierson told Schneider any of the foregoing
about Herz treating his heart condition , or that it was because of his heart condition
that Pierson did not report for work during the period in question.
ARKPORT DAIRIES, INC. 1373
Schneider -testified that he believed that this last conversation in his office
with Pierson was "on a Wednesday afternoon." As to what transpired, Schneider
testified as follows :
Q. What did he [Pierson] say?
A. He came up to the office and said: "I am coming up here on the orders
of the president of the Union, Mr. Hart, who said I would get my job back."
Q. What. did you tell him?
A. I told him that he would not get his job back.
Q. Did you tell him-did you say to him that he would do no more organ-
izing and everybody who signed an application would be out?
A. I did not.
As to the version in Pierson's testimony, the undersigned has already indicated
that that portion which pertains to Pierson's illness and his doctor is distorted
and that the discussion about Dr. Herz actually took place Tuesday morning
rather than Wednesday. On its face, Pierson's testimony involves the non-
sequitur of Schneider asking about Pierson's illness and his doctor, and then
simply chiding and threatening Pierson with respect to his union activities. And
while the version in Pierson's letter, written within a few days of the conversation,
corroborates Pierson's testimony as to the latter part of the conversation, it is
noteworthy that, according to the version in the letter, the conversation that
morning opened by Schneider stating that Pierson "was finished at the plant."
In effect, that is the gist of Schneider's version of what happened that morning,
and that quoted phrase attributed to Schneider is quite consistent with what
had already transpired.
.There is no doubt in the undersigned's mind that when Pierson entered the
office, Schneider had already decided that he was through with Pierson. There
appears no particular reason ,why Schneider should then have done more than
to say so, especially if he did not choose to give vent to his strong feelings about
Pierson having deceived him. Schneider's denial that he said. certain things. to
Pierson, while compactly phrased, as is much of this record, covers the salient
points involved, and is consistent with the probabilities in these situations.
Schneider had recently had at least one telephone conversation with Cacioppo
concerning the matter and both men were by then certainly aware of the delicacy
of the situation. If it be conceded that Cacioppo had learned anything at all
from his experience in the earlier Board case, he surely would have learned
enough to warn Schneider against making any gratuitous, damaging statements,
especially if there had been the slightest tinge of conspiracy between Cacioppo
and Schneider to get rid of Pierson "because of his union leadership.82 Under all
of the circumstances, the undersigned believes that the . evidence as to this
conversation on June 1, which probably took place in the morning, does not
warrant finding that it consisted essentially of anything material other than
of Schneider telling Pierson that he would not be reinstated, although the
matter is not free from doubt "
ea A contrary inference, to the effect that Cacloppo may not have been averse to reinstat-
ing Pierson , but that Schneider was adamant about doing so unless Cacioppo flatly ordered
him to , Is suggested by several phrases used In the testimony about the various telephone
conversations.
63 The undersigned has carefully weighed , In this connection , the possibility that
Schneider , upon some such provocation as Pierson's Insisting that Schneider would have
to take him back in the long run because the Union would have to be recognized, may
have made some retort to the effect that the Union was not going to get in the plant.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11
7. Conclusions. as to Pierson's discharge
The foregoing findings and discussion of contentions, commingled in the hope
of. avoiding repetition, cover what the undersigned believes 'to be the salient
facts and contentions of the parties as to Pierson's case. It is true that there
are several matters of evidence and of argument which, although carefully con-
sidered, have not been discussed .14 However, the undersigned believes that the
bearing of all such matters becomes apparent when viewed in the light of the
pattern which emerges from what has already been said.
The nub of the matter as to Pierson's discharge appears to reduce itself to
substantially this. Schneider, who was not particularly against unions to begin
with, got very angry because he was shorthanded on a Sunday evening during
the busy season when his "boss" happened to be at the plant. As things turned
out, the one individual contributing to Schneider's embarrassment, whose failure
to show up that Sunday was not satisfactorily explained, was Pierson. Unbe-
knownst to Schneider, Pierson was then -carrying the Union's cards. While
Schneider was still quite angry that Sunday evening, he decided to discharge
Pierson. No real attempt was made by Pierson to explain his absence to Schneider
until Tuesday morning, when he found Schneider in a more receptive mood.
After Pierson's explanation, Schneider decided to reconsider, in view of Pierson's
claim that he had been ill and had been to see a doctor. Shortly thereafter,
Schneider learned both that Pierson had not seen the doctor, as.he had claimed,
And that Pierson was the organizer for the Union at the Arkport plant.' From
his observation of Schneider, the undersigned is satisfied that, under the circum-
stances, learning that Pierson had not seen Dr. Herz was a sufficient stimulus,
without any reference to the Union, to produce Schneider's reaction that Pierson
"was finished for all time." And the evidence will not support an inference that
that was not the real reason for Schneider's decision, but was rather merely
a pretext R6
In sum, it appears that no initial hostility toward the Union was a factor in
the decision to discharge Pierson, or in the further decision to reaffirm that
discharge after reconsideration. Yet it is evident that Schneider's ultimate
attitude toward the Union, which was undoubtedly a factor in subsequent hap-
penings, was conditioned by Schneider's strong anger at Pierson, aroused at the
time of Pierson's discharge. In the light of all the foregoing, the undersigned
finds that the. evidence does not sustain the allegation of the complaint as to
Pierson's discharge, and it will be recommended below that said allegation be
dismissed.
E. The separations of Francis Sheon, Raymond Melious, Sr., Raymond Melious,
Jr., Francis Mess, and Eugene Parmelee
1. Contentions and facts in general
In brief, the General Counsel contends that the Respondent discharged the
above-named five employees because of their membership in or activity on behalf
of the Union. The Respondent, on the contrary, contends that it laid off those
04 For instance, none of the testimony as to how Schneider treated several other employees
who were absent because of illness has been mentioned because the undersigned , is satisfied,
upon analysis thereof, that none of those varied situations has enough in common with
the facts in Pierson 's case to have any material bearing thereon . Similarly, in view of
the findings and conclusions reached herein , it is not particularly material that a discussion
at a later date which took place among Dr. Herz, Manager Schneider , and a field examiner
of the hoard , confirmed Schneider 's feelings about Pierson.
65 Cf. Marathon Rubber Products Co., 10 NLRB 704, 713.
ARKPORT DAIRIES, INC. 1375
five employees ; along with various other employees , because of lack of work
occasioned by a seasonal decrease in the receipt of milk at its Arkport plant.
There are some facts concerning the termination of these five employees about
which there appears to , be no particular dispute. Melious , Sr., Mess, and
Parmelee last worked for the Respondent on July 30 , 1949, ' and Sheon and
Melious; Jr., last worked on August 6, 1949. Each of these five employees had
been hired in 1949, and their length of service varied from less than 8 months to
a little under 3 months. Sheon was hired in January ; Melious, Sr ., in February ;
Melious, Jr ., in March, Mess in April ; and Parmelee in May." Melious, Sr., was
paid a weekly salary, while the other four were paid on an hourly basis. At
about the time of his separation , each of the five employees appears to have
found attached to his time card a letter on the stationary of the Respondent.
Except for variations in the dates , said letters read substantially as follows :
JULY 28, 1949.
NoTICE
Due to the fact that Milk Production has fallen off sharply , and we are losing.
the milk from some of the Dairymen ' s League Feeder Plants, we find it
necessary to terminate your employment as of the week ending Saturday,:
night, JULY 30, 1949.
THE MANAGEMENT,
(Signed ) K. SCHNEIDER.;
The facts as to the organization of the Union are set out above in Section
III, B. As to the five employees here under consideration , the following should
be noted. Four of these employees , all except Parmelee, were present at the
organizational meeting held with Hart in Hornell on May.14, 1949, and all of
those four , Sheon, Melious, Sr ., Melious, Jr ., and Mess, signed union-application
cards at that meeting. Parmelee signed his union application 2 days later. In
addition , Melious, Sr ., Melious, Jr., and Parmelee took some part in the cam-
paign to sign up members.
It should also be noted that. although the record does not specifically show
that the Respondent learned of the May 14 meeting, the evidence does establish.
as is more fully set forth in the findings made above in Section III, C, 4, that
about July 23, 1949, shortly before the separations here in issue occurred, Man-
ager Schneider told one of these five complainants , Francis Sheon , that he had
a listof the men who had signed union cards and that Sheon 's name was among
them. It will be remembered that on that occasion Schneider also asked Sheon
if he had joined the Union and that Sheon admitted that he had done so.
It is thus clear from the foregoing that, as to Sheon , Schneider had a specific
admission.,from the employee himself that he had joined the Union. And it is also
significant that, shortly before making what the Respondent contends were
economically necessitated layoffs, its manager saw fit to verify through Sheon.
whether or not Sheon 's name was properly included in a list of employees who
bad signed union cards . However, any consideration of whether certain infer-
ences, urged by the General Counsel, are warranted from the record as a whole,
must be reserved until a number of matters in dispute have been analyzed. We
now turn to these matters , which will be considered without attempting to detail
all of the factors which have entered into the conclusions hereinafter reached."
°° The week during which each was hired is set out below in Table III, along with,
certain data concerning other employees during the first 8 months of 1949.
61 See Section III, A , above, particularly the second paragraph thereof.
1376 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
2. Seasonal fluctuations and economic considerations
As to the general seasonal fluctuations in milk production and the reasons
therefor, Schneider testified credibly as follows :
The beginning of March of every year milk products, not only in this area
but in all areas, rises. Not only our own patrons bring in more milk but
patrons in other receiving stations bring in more milk. This usually
reaches a peak around June 15th, but varies from year to year, depending on
the dryness of the season, or whether we had a wet Spring or a dry Spring.
From June 15th on it usually levels out and begins to drop off. In July,
depending on the weather, it drops off, especially toward the end of July.
In August there is usually very little rain and flies begin to bother cows to
the extent that milk production drops some more, and it is usually a great
deal less in August than it is in July. This seasonal drop occurs every year.
The lowest part is usually reached around November and December, also
depending on several conditions, but the highest peak is usually in June,
the end of May, beginning of June, and the lowest period is usually around
November and December.
Schneider also testified that the number of employees at the Arkport plant
fluctuated "to a certain extent" in the same manner as this seasonal cycle.
His testimony in that respect is corroborated by a graph entered as an exhibit
in the R-case, showing that the number of employees by months from January
1948 through July 1949 actually followed the pattern described in the above
testimony of Schneider. This graph shows a low of 36 employees in December
1948 and a high of 62 in June 1949.
The fact that there is seasonal variation, including a "flush" or accelerated
period of milk production during the late spring and early summer, was ac-
knowledged by some of the General Counsel's witnesses. That employment
actually increased from January through June 1949, and began to fall off slightly
in July of that year, is evidenced from the variation in the number of employees,
shown on a week-by-week basis, in Company Exhibit 1, introduced in the R-case
on August 4, 1949. This exhibit contains the name of each employee, except
Manager Schneider, who worked from the last week in December 1948 through
the payroll week indicated as "7/24" in 1949. Each week in which each indi-
vidual employee worked is shown by an X placed in the column for that payroll
week 68 The sample figures set out below in Table I have been compiled by the
undersigned by making an actual count of the names of the individuals shown
by X marks as working during the last payroll week in each month during
the first 7 months of 1949.
TABLE I.-Monthly variations in employment from January through July 1949
Date of last payroll Total number of employees
week in each month working during that week "
Jan. 30-------------------------------------------------------------- 38
Feb. 27-------------------------------------------------------------- 39
Mar. 27------------------------------------------------------- -------- 49
Apr. 24-------------------------------------------------------------- 52
May 29 -------------------------------------------------------------- 59
June 26-------------------------------------------------------------- 65
July 24-------------------------------------------------------------- 60
W It is not clear whether the date heading each column in Company Exhibit 1,designatee
the beginning or the end of a payroll week. However, it is not particularly material,
and in references herein, the date is simply given as such and such a payroll week.
69 While these figures include all employees, substantially all of the variations shown
are within the unit of production and maintenance employees.
ARKPORT DAIRIES, INC. 1377
In the hearing before the undersigned, the Respondent introduced into evi-
dence as Respondent's Exhibit 2 a list of 22 names of employees and the respec-
tive dates , ranging from June 25 through September 3, 1949, upon which
Schneider testified that those employees were laid off. Two of the employees
named on that list apparently were not in the unit 40 The General Counsel
challenges the validity of this list, principally on the ground that it probably
includes employees' who quit as well as those who were laid off, in view of
the Respondent's high labor turnover. However, Schneider's testimony that
the employees on the list were laid off was not discredited. It appears from
the list that some 20 employees in the appropriate unit, or 15 employees in addi-
tion to the 5 complainants now in issue, were laid off between June 25 and Sep-
tember 3, 1949.41 The distribution of these 20. employees, by the dates of their
respective layoffs, is shown in Table II.
TABLE II.Distribution of laid-off employees by dates
Number
laid
Dates during 1949 Off.
June 25-------------------------------------------------------------- 1
July 2---------------------------------------------------------=------ 1
July 9---------------------------------------------------------------- 2
July 23--------------------------------------------------------------- 2
July 30 -------------------------------------------------------------- 427
Aug. 6 -------------------------- ---------- - --------------------- 724
Aug. 13 -------------------------------------------------------------- 1
Aug. 20 -------------------------------------------------------------- 1
Sept. 3--------------------------------------------------------------- 1
In order to get a picture of the relationship of the five complainants to the
numerous other employees hired during 1949 and to the various employees who
were separated simultaneously with or after the first of those complainants were
laid off on July 30, the undersigned has compiled Table III from the data con-
tained in Company Exhibit 1 in the R-case and from the above-discussed Re-
spondent's Exhibit 2. Only separations beginning with July 30, 1949, are shown
in Table III, because the layoffs in question began on that date, and because the
evidence as a whole shows that the end of July was the time when the Respondent
began making the seasonal layoffs which are here involved.74 The order of list-
ing in Table III is taken from Company Exhibit 1. The date of employment is
the payroll week shown at the head of the column in which the first X appears
for each employee ; there is no way to determine from the record the precise date
upon which each of these employees first actually worked. .
70 R. Level (laboratory) and M. Lusk (office).
n As to the lack of other evidence concerning these 15 employees, see footnote 77, below.
79 This figure includes three complainants, Melious, Sr., Mess, and Parmelee.
72 This figure includes two complainants, Sheon and Melious, Jr.
74 The Respondent's high rate of labor turnover before the end of July is evidenced
by the fact that about 30 employees in the unit , other than those shown in Table III,
entered and left the Respondent's employ between January 2 and July 24, 1949 . Several
of those employees worked for only a week or-two.
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TABLE III.Date of employment and separation for a _ 1 employees in the unit
who were on the Respondent's payroll of July 211, 19119, and who first appeared
on said payroll daring 1919. Complainants are designated by an asterisk.
Name Dateemployed
Date
separated Name
Date
employed
Date
separated
F. Sheon `----------------- Jan. 23 ------ Aug. 6 R . Sandford --------------- May 8-____-
M. Cannella--------------- Jan. 30 ------ R. Feenaughty ------------ May 8 ------ July 30
R. Melious, Sr .* ----------- Feb. 27 ------ July 30 P . Loree--.._--------------- May 8-_____
C. Amidon ------ _--------- Mar. 13 ----- J. Page ------------ -------- May 15-___-
K. Harvey ---------------- Mar. 20 ----- W. Pryor----------------- May22-----
D. Mayo ------------------ Mar. 20 ----- It. Maury----------------- May 22-----
R. Melious, Jr .* ----------- Mar. 27 ----- Aug. 6 G . Ames __________________ May 29_---_
E. Norton ----------------- Mar. 27----- J. Rawlings --------------- June 5------- Aug. 20
N. Ciacioso ---------------- Mar. 27 ----- Sept . 3 L. Predmore -------------- June 5-____--
F. Mess •____ Apr. 24------ July 30 It . Turner----------------- June 19--___-
G. Dodge ------------------ Apr. 24------ D. Savey ------------------ June 19 ------ July 30
C. Linder ----------------- Apr. 24 ------ Aug. 6 It. Butler------------------ June 26.----_
P. Taylor ----------------- May 8------ W. Hathaway------------- July 3 .------
E. Parmelee '------------- May 8 ------ July 30 A . Gardella-------- -------- July 17-__---
C. Weber------------------ May 8 ------ July 30 A . Valentino -------------- July 24 ------
At the hearing, Schneider testified specifically that the five complainants were
laid off for the reason "stated to them in a letter attached to their time -cards."
He restated that reason as "the shortening of milk in August, 1949 " when the
Respondent had "just a little more than half" of its July milk supply . Schneider's
generalization as to the diminution in the milk supply in August is buttressed
by testimony in considerable detail by Schneider as to losses from various of.
the Respondent 's sources of supply. As to two sources of supply , Andover
and Groveland , the August receipts were less than one fourth of the July re-
ceipts. However , the total receipts of milk dropped less than half , from 10,511,304
pounds in July to 6,727 ,100 pounds in August . That by about the end of July
1949, the Respondent could reasonably have anticipated , and was apparently
beginning to feel, the drop in milk production which actually did materialize
during August , is apparent from the evidence in the record as to the seasonal
nature of the milk business , Schneider 's testimony as to the termination at the
end of July 1949 of a contractual obligation on the part of the Dairymen's
League to ship milk to the.Arkport plant, and the forthright testimony of com-
plainant Sheon which shows that he had become aware , before he was laid off
on August 6, of a decrease in the receipt of milk at the Arkport plant.
Contrary to the contentions of the General Counsel , all of which have been
carefully considered , the undersigned is convinced , on the weight of the evidence,
that the Respondent 's normal business operations warranted a reduction in
force at approximately the time it laid off the five. complainants . It also appears
that the number of employees laid off during the period from July 30 to Sep-
tember 3, 1949 , cannot be said to be disproportionate to the decrease in opera-
tions. Hence, the question remaining for determination becomes whether or not
the evidence establishes that the Respondent discriminated against any of the
five complainants because 'of his union membership or activity by including him
among those laid off at a time when business conditions warranted the approx-
imate number of layoffs which were made.
3. Employment practices
Before turning to the complicated problem which has just been stated, there
remains for consideration the question of what constituted the Respdnndent's
employment policy. Upon careful consideration of all of the evidence , including
the R -case record where the major issue was the status of the seasonal or tem.-
ARKPORT DAIRIES, INC. 1379
porary employees ," the undersigned believes that the findings made in the fol-
lowing three paragraphs essentially epitomize what the record warrants finding
to be the pertinent aspects of the Respondent's employment practices.
Generally speaking, at the peak of the flush season, about half of the approx-
imately 60 employees in the unit are permanent or regular employees and the
other half are temporary or seasonal employees. The permanent employees
who evidently are more skilled and experienced in such work as operating and
maintaining equipment are paid by.the week and are employed on a year-around
basis. Although there may not be full-time employment for them during part
of the slack season, the regular employees continue to receive their weekly sal-
ary. By contrast, temporary employees are paid on an hourly basis and do
less skilled work, such as cleaning up, handling cans, and helping. Temporary
employees are hired, as needed, when the flush season commences about March,
and are released as production declines toward the end of the flush season in
July or August, although some may be retained until October or November. More
temporary employees than usual were retained after the flush period in 1949,
and some who otherwise would have been let go were carried on through into
1950 because the Respondent was expecting to receive more milk in 1950 than
it had received during 1949.
In determining what temporary employees to lay off first and which to retain
longer, the Respondent does not follow a policy of strict seniority, although,
other things being equal, the last employee hired would normally be the first
employee to be laid off. However, such factors as how satisfactory his work
has been, whether there is a continuing need for the type of work which he
has been performing, and the extent to which he has displayed ability to per-
form operations requiring skill, may govern in deciding to retain a temporary
employee with less service than other temporary employees, at the time of reduc-
tion in force following the flush season. Thus an outstanding temporary em-
ployge, regardless of when he was hired, will be retained until there is no longer
any work available for him.
It should be noted that most of the regular employees work on the day shift,
which is essentially the operating shift, in contrast to the night shift; which is
devoted to a considerable extent'to cleanup work. During the flush season, 3
regular and 5 or 6 temporary employees are engaged in night shift operations
consisting largely of cleanup work. . During the slack season, there is still
some night cleanup work to do, but it is performed by permanent employees.
The night shift drops from about 15 employees at the peak of operations to about
8 employees when work is slack.'"
4. Conclusions as to the separations
We turn now specifically to a consideration of whether or not the terminations
of the five complainants were discriminatory. These complainants fall logically
into two groups, the two older men, Melious, Sr. and Sheon, who entered the
Respondent's employ prior to the flush season of 1949, and the three younger
men, Melious, Jr., Mess, and Parmelee, who entered the Respondent's employ
when the 1949 flush season was under way. The relative positions of these five
45 In its Decision and Direction of Election of September 29, 1949, the Board found
that there wete 30 regular employees and 30 additional employees during the busy
season "which extends from March to August." The Board included the seasonal employees
in the, unit.
T" These figures include the boiler room where the range is from as high as three to
as low as one.
901974-52-vol. 95--88
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complainants, as shown in Table III, should be kept in mind during the discussion
which follows."
Raymond Melious, Sr., admittedly was paid on a salary basis. He started
working as a night cleanup man on separators and pasteurizers for $50 a week
and a gallon of milk a day. When Schneider hired Melious, he told Melious
that he would be a "steady, year-round man," doing such jobs in the winter when
work was slack as cleaning and painting machinery and pipes.78 The evidence as
a whole shows and the undersigned finds that Melious, Sr., was hired as a per-
manent employee and that it was contrary to the Respondent's established em-
ployment practice to let out permanent employees in reducing force at the end
of the flush period. It is also clear that Melious' work was considered very sat-
isfactory,79 and that his work was needed and continuing, since even in slack
times cleanup work on the night shift is,performed by permanent employees.
It is clear from Schneider's interrogation of Sheon on July 23 that Schneider
was actively seeking information on employee membership in the Union just
a few days prior to Melious' separation. In the undersigned's opinion, it is
highly unlikely, especially in view of the smallness of the community and of
the plant involved and of. Schneider's active interest in getting such informa-
tion, that the Respondent would not have learned that Melious was a member of
and active on behalf of the Union. Hence, the undersigned infers and finds,
under all of the circumstances, that prior to its termination of Melious' employ-
ment, the Respondent learned of Melious' activity on behalf of the Union and
his membership therein. Further, the undersigned is convinced, on 'all of the
evidence, that in terminating the employment on July 30 of Melious, Sr., a satis-
factory permanent employee not subject to seasonal layoffs under its employ-
ment policy, the Respondent used its curtailment of employment as a convenient
pretext for ridding itself of.Melious because of his membership in and activity
on behalf of the Union 80
Francis Sheon 81 was hired on an hourly basis by Schneider in January 1949
during the slack period. Sheon first performed the work, of an employee who
was on vacation. After he had worked about a month, Sheon asked Schneider
for a raise. The undersigned is satisfied from Sheon's testimony that the im-
port of Schneider's remarks during that conversation was that Sheon was going
77 It should also be noted , in connection with Table III, that 5 of the employees, other
than the complainants , named on Respondent 's Exhibit 2, appear from Company Exhibit 1
to have entered the Respondent 's employ prior to Sheon, . the first employee listed on
Table III. However, as to the 15 employees in the unit shown on Respondent 's Exhibit 2,
other than the 5 complainants , the record does not reveal any details as to the jobs which
they were performing , the basis upon which they were paid, their respective abilities,
how satisfactory or unsatisfactory the work of each may have been considered, or how
and when each was informed as to whatever reason may have been given him for his
separation.
78 Melious ' testimony as to what Schneider told him is credited . Neither. Schneider's
testimony that he told Melious that the steadiness of the job depended on the amount
of milk , nor his testimony that Melious was a temporary employee , was convincing,
especially since Schneider admitted that he could not name any other temporary employee
who was paid on a weekly basis.
79 Night Foreman McCarthy, under whom Melious worked , not only testified that Melious
was "a pretty good man" but also that he had told Schneider that he would appreciate
having Melious transferred back to his night shift if Schneider should decide not to use
Melious permanently on a day shift job to which Melious had been transferred for a
short period . Melious testified credibly that McCarthy told him that he was very satisfied
with his work and ' that Schneider was satisfied.
80 It should be noted that Melious' threat to get Schneider out of the creamery was
not made until many months after the termination of Melious ' employment.
81 Sheon is the father -in-law of Complainant Mesa.
ARKPORT DAIRIES, INC. 1381
to be given steady work, be kept on the year around, and eventually be put on a
weekly basis . While Sheon was not thereafter put on a weekly basis, he served
as a utility man throughout the plant and did, some work in the powder room as
a relief man . Except for a few nights' work in the powder room, all of Sheon's
work was during the day shift. Sheon's work was never criticized by Schneider,
Holmes, or McCarthy and all three praised his work at different times. In fact,
when_Sheon went to see Schneider the day after receiving the notice terminating
his employment, Schneider told Sheon that he was "a very satisfactory worker"
.and that he was sorry to have to let him go. -
It has been found above that the Respondent customarily pays permanent em-
ployees by the week. However, Schneider testified that while most permanent
-employees in 1949 were paid by the week, some of them were paid by the hour.
In the light of the Respondent's employment policies detailed above, Sheon's em-
ployment during the slack season, Schneider's conversation with Sheon about a
month after he started work to the effect that his work would be steady, the
kind of work which Sheon was performing, and the fact that he was considered
a very satisfactory employee, the undersigned concludes that Sheon would nor-
mally have been retained in the Respondent's employ as a permanent employee,
even though he was being paid on an hourly basis.
That Schneider was reluctant to terminate the services of such a satisfactory
-employee is apparent from the fact that Schneider chose to verify his infor-
mation that Sheon was a member of the Union by asking Sheon himself about
the matter. Schneider's interrogation was "not motivated by idle curiosity.1112
Two weeks after Sheon furnished that verification of his union membership,
his services were terminated on August 6. Yet at the time of Sheon's termination,
it is, evident from Table III that 21 employees who were hired after Sheon were
retained on the payroll. Even if the separations through September 3 are counted,
the Respondent kept 19 employees hired after Sheon, and that number is greater
than the number of union applicants who remain unidentified in the record.'
Thus it would appear that several nonunion employees with less seniority than
Sheon were retained. Everything considered, the undersigned finds that, absent
Sheon's known membership in the Union, the Respondent would have retained
Sheon as a permanent employee. Accordingly, the undersigned finds that Sheon's
employment was terminated August 6, 1949, because of his membership in the
Union.
Raymond Melious, Jr., Hess, and Parmelee were all hired during the 1949 flush
period and were hourly paid temporary employees. While their performance
as employees apparently ranged from fair to good,' in the undersigned's judg-
ment, the evidence does not warrant finding that any one of them was considered
to be an outstanding temporary employee, although Melious was apparently the
most satisfactory employee of the three.
Mess worked all told just a little over 3 months at the unskilled job of barrel-
ing powdered milk, Except for about 2 weeks on the day shift when he first
started, his work was on the night shift. The powdered milk manufactured dur-
ing August 1949 was about 50 percent of what it had been during the previous
s' Standard -Coosa-Thatcher Company, 85 NLRB 1358, 1362.
9' The names of 10 employees out of 26 who signed union applications are revealed
by the evidence, the 6 complainants and 4 additional employees, Falzoi, Ebner, Baird, and
Phil Taylor, the last 3 of whom continued in the Respondent's employ. This leaves 16
unidentified union applicants , and there is no way of determining how many of those 16
are included in Table III.
McCarthy testified that Parmelee was a "fair" worker and that Melious was a "good"
one. Mess 'testified ithat his work had never been either'praised or criticized.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
•
month of July. As to Melious and Parmelee, at the time of their respective
.layoffs, Parmelee, whose total employment had been less than 3 months, was
working on the night shift as a cleanup man, and Melious, Jr., who had been
employed more than 4 months, was unloading tank trucks on, the night shift.
As appears from facts set out above, after the flush season the night crew is
.usually substantially reduced. From his appraisal of all of the evidence, the
undersigned believes that night work of the types being performed by.these three
-complainants was necessarily being curtailed . at the time these three men were
terminated.
It is obvious from a study of Table III that many employees who had been
hired after them were retained when Melious, Mess, and Parmelee were-termi-
nated. There is nothing in the record to indicate that these numerous employees
with less seniority who were- retained were not also temporary employees, and.
from the date of their hiring it is presumed that they were temporary employees
in competition with the 3 complainants for retention of employment. However,
it cannot be said the Respondent was governed by a strict seniority policy in
laying off temporary employees at the end of the flush season, and the record is
silent as to any of the other factors which may have entered into the retention
of temporary employees with less seniority than the 3 -complainants. In ad-
dition, since 16 union applicants remain unidentified in the record, it is im-
possible, save for a single exception, to tell how many or which of the employees
with less seniority who were retained were also members of the Union;, In any
event, at least 1 of the retained employees, Phil Taylor, who was hired the same
week as Parmelee, signed a union card, according to Parmelee's testimony, on
May 16 at the same time that Parmelee signed his card 8 However, it is probable
that a good many other retained employees had also signed union cards, since
there is nothing in the evidence which would warrant any assumption to the
contrary.
While the matter is not without doubt, especially since so many very recently
hired employees were retained,86 in view of the many variables here involved,
and the record 's silence on several points, the undersigned is of the opinion
that the General Counsel has not sustained the burden of proving, even if it be
assumed that the Respondent knew of their respective memberships in the
Union, that the terminations of Melious, Jr., Mess, and Parmelee were dis-
criminatory because of their union membership or activity 87
F. Complaint case conclusions
In accordance with the foregoing findings of fact, the undersigned concludes
that the Respondent, by Manager Schneider's interrogation of employees Sheon
and Waggoner, and by Manager Schneider's and Assistant ManagerF Holmes'
surveillance of the Union 's meeting on October 24, 1949, has interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act, and has thereby violated Section S (a) (1) of the Act.
s: The two other union applicants revealed by the evidence , who also continued in the
Respondent 's employ, Ebner and Baird , were both hired prior to any of the employees
shown in Table III. It should be noted that Dodge , who appears on Table III and who
attended the Union 's meetings of May 7 and 14, was also retained.
86 The Union 's petition, claiming 26 employees in support thereof , was filed on June 1,
1949, but the record does not establish that the Union stopped signing applicants after
filing its petition.
. 87 Cf . New, Idea, Inc., 5 NLRB 381, 388 ; Sheba Ann Frocks, Inc., 5 NLRB 12, 17 ;
Chicago Apparatus Company, 12 NLRB 1002, 1023 ; The Caafmaa Lumber Company, Inc.,
82 NLRB 290 ,. 297 ; and . Carolina Mills, Inc., 92 NLRB 1141. -
ARKPORT DAIRIES, INC. 1383
The undersigned further concludes that the Respondent, by discriminating in
regard to the hire, and tenure of employment of Raymond Melious, Sr., and
Francis Sheon, has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) of the Act.
The undersigned also concludes that the Respondent has not engaged in unfair
labor practices by threatening its employees, or by terminating the employment
of Raymond Melious, Jr., Francis Mess, Eugene Parmelee,.and Samuel Pierson.
G. Representation case conclusions
As to the objections to the election in Case No. 3-RC-298, in view of the con-
clusions in the immediately preceding section of this Report which establish that
the Respondent, between the date of the filing of the petition in the R-case and
the date of the election therein, engaged in unfair labor practices which are de-
tailed more fully in earlier sections of the Report, it is hereby found that said
election of October 25, 1949, did not represent the free and untrammeled desires of
the employees in the appropriate unit at the Respondent's Arkport plant. There-
fore, the undersigned recommends that the Union's objections to the election be
sustained and that the election be set aside 88 It is further recommended, in
keeping with usual procedure, that the Board direct a new election to be held
when the Regional Director advises that the time therefor is appropriate.
IV..- THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection. with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade,. traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce, and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in the unfair labor practices
set forth above, the undersigned will recommend that it cease and desist there-
from and take certain affirmative, action designed to effectuate the policies of
the Act.
The. undersigned will recommend that the Respondent remedy its discrimina-
tion against Raymond Melious, Sr., and Francis Sheon, by offering to each
immediate and full reinstatement to his former or substantially equivalent
position," without prejudice to his seniority or other rights and privileges.
It will be recommended further that the Respondent make them whole for any
88This recommendation would not be modified in any way if Manager Schneider's
interrogation of employees Sheon and waggoner, matters not specifically covered by the
two remaining items in the Union's objections, were to be completely ignored for the
purposes of the R-case, since the surveillance and the discriminatory discharges, both
covered by the two items remaining in the Union's objections, afford ample basis for the
recommendations made. It should also be noted that, in the undersigned's considered
judgment, the testimony of Matthew. Dungan and the "PROTEST" contained in evidence,
to which he secured signatures of employees of the Respondent, cannot serve to establish
that the election was an expression of employee. free will, as the Respondent contends
in, its- brief:
es In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" Is intended to mean "former- position
wherever possible and if such position is no longer in existence then to a substantially
equivalent position." See The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 NLRB 827.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loss of pay that they may have suffered by reason of its discrimination against
them. In accordance with the Board's policy,90 the undersigned will recommend
that the loss of pay be computed on the basis of each separate calendar quarter,
or portion thereof, during the period from the respective discriminations to the
date of proper offers of reinstatement. The quarterly periods, hereinafter called
"quarters," shall begin with the first day of January, April, July, and October.
Loss of pay shall be determined by deducting from a sum equal to that which
each of the employees discriminated against would normally have earned for
each quarter, or portion thereof, his net earnings," if any, in other employment
during that period. Earnings in one particular quarter shall have no effect upon
the back-pay liability for any other quarter. It will also be recommended that
the Respondent make available to the Board, upon request, payroll and other
records to facilitate the checking of the amount of back pay due "
The Respondent's violations of the Act are persuasively related to other unfair
labor practices proscribed thereby, and the danger of the commission in the
future of other unfair labor practices is to be anticipated from the Respondent's
conduct in the past. The preventive purposes of the Act will be thwarted unless
the order is coextensive with the threat. In order, therefore, to make more
effective the interdependent guarantees of Section 7, to prevent a recurrence of
unfair labor practices, and thereby minimize industrial strife which, burdens
and obstructs commerce, and thus effectuate the policies of the Act, it will be
recommended that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record of the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The operations of Arkport Dairies, Inc., occur in commerce, within the
meaning of Section 2 (6) of the Act.
2. Chauffeurs, Teamsters, Warehousemen & Helpers' Local Union No. 65, In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers
of America, AFL, is a labor organization, within the meaning of Section. 2 (5)
of the Act.
3. By discriminating in regard to the hire and tenure of employment of
Raymond Melious, Sr., and Francis Sheon, the Respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section 8 (a) (3)
of the Act.
4. By such discrimination, and by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
0° F. W. Woolworth Company, 90 NLRB 289.
91 By "net earnings" is meant earnings less expenses , such as for transportation, room,
-and board incurred--•by an -enployee in connection -with -obtaining work and working
elsewhere than for the Respondent , which would not have been incurred but for this,
unlawful discrimination, and the consequent necessity of his seeking employment else-
where. Crossett Lumber Company, 8 NLRB 440 . Monies received for work performed
upon Federal , State, county , municipal, or other work -relief projects shall be considered
earnings. Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
02 F. W. Woolworth Company, supra.
ARKPORT DAIRIES, INC. 1385
6."The Respondent has not engaged in unfair labor practices by threatening
employees , or by terminating the employment of Raymond Melious , Jr., Francis
Mess, Eugene Parmelee , or Samuel Pierson.
[Recommended Order omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner 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 of our employees in CHAUFFEURS,
TEAMSTERS , WAREHOUSEMEN & HELPERS' LOCAL UNION #65, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF
AMERICA, AFL, or in any other labor organization, by discriminating in re-
gard to their hire and tenure of employment, or in any other manner dis-
criminating in regard to any other terms or conditions of employment.
WE WILL offer Raymond Melious, Sr., and Francis Sheon immediate and
full reinstatement to their former or substantially equivalent positions.
without prejudice to any seniority or other rights and privileges previously
enjoyed , and make each of them whole for any loss of pay. he may have suf-
fered as a result of the discrimination against him.
WE WILL NOT interrogate our employees concerning their union affiliation,
or engage in surveillance of their union meetings or activities, or in any
other manner interfere with, restrain, or coerce our employees in the exer-
cise of the right to self-organization, to form labor organizations, to join
or assist CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN & HELPERS' LOCAL UNION
#65, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN, AND HELPERS OF AMERICA, AFL, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection; or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agreement con-
forming to the provisions of Section 8 (a) (3) of the Act.
All 'our employees are free to become , remain, or refrain from becoming or
remaining, members of the, above-named union or any other labor organization,
except to the extent affected by the provisions of Section 8 (a) (3) of the Act.
We will not discriminate in regard to hire or tenure of employment, or any term
or condition of employment, against any employees because of membership in
or activity on behalf of any such labor organization.
ARKPORT DAIRIES, INC.,
Employer.
By --------------------------
(Representative ) (Title)
I
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.