Pine State Creamery Co., Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1961

134 N.L.R.B. 34 (N.L.R.B. 1961)

34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Layoff of Horton , Stevens, and Hardin
Employees Horton , Stevens, and Hardin were laid off at the direction of Super-
visor Kensinger . Kensinger discussed ' with Branscome on March 4 about laying
off some of the employees stating: "I told him the workload was pretty well accom-
plished and I could get back in line with the payroll again ." He stated that he
followed strict seniority in layoffs whenever possible, but that layoffs were matters
within his sole discretion . The evidence of record supports Kensinger 's reasons for
laying these three men off at this time. Subsequent rehiring of other laborers is
accounted for by the increased number of carloads of rice to be unloaded. The
Trial Examiner implicitly accepts Kensinger 's version and finds these layoffs not to
have been discriminatorily motivated.
The Union Button Incident
Considerable testimony was given with reference to the charge that management
interrogated employees on March 2 concerning the wearing of union buttons. These
actions were primarily attributed to Dorsey and are advanced by General Counsel as
being evidence of union animus which occasioned the discharges . This incident
,occurred in the forenoon following the union meeting of the previous evening.
Undoubtedly several of the employees who had attended the union meeting openly
wore their buttons. There is no doubt but that the wearing of these buttons came
,to the attention of supervisors , but the Trial Examiner finds that the wearing of the
buttons played no role in the decision of management to change the operation and
contract out the drayage as well as to curtail their personnel . In one incident Dorsey
is charged with having approached Johnson , inspected the button and asked him if
he did not know that the button was "hot." The Trial Examiner rejects Johnson's
version of this event and finds that remarks made by Dorsey, if any, were not in the
nature of threats of reprisal but rather would have been facetious . This incident is
found to be no violation of the Act.
Disposition of Challenged Ballots in Case No. 23-RC-1511
The Trial Examiner, having found that Johnson , Jones, Bush , Runnels, Williams,
Haywood, Horton , Mills, Stevens , and Hardin were not discharged for their union
activity, their challenged ballots need not be opened and counted nor a revised tally
of ballots be served upon the parties . The ballots are invalid.
Upon the basis of the foregoing findings of fact, and upon the record as a whole,
it will be recommended that the complaint be dismissed in its entirety and, further,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Union Transfer & Storage Company is engaged in and, during all times material,
was engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. General Drivers , Warehousemen and Helpers Local Union No. 968 is a labor
organization within the meaning of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act
has not been sustained by a preponderance of the substantial evidence.
[Recommendations omitted from publication.]
Pine State Creamery Company, Inc. and James Marshall
Hilliard and Howell L. Jones. Cases Nos. 11-CA-1710-2 and
11-CA-1730. November 7, 1961
DECISION AND ORDER
On July 12, 1961, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and is engaging in certain unfair labor
134 NLRB No 3.
PINE STATE CREAMERY COMPANY, INC. 35
practices and recommending that it. cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner also found that the Respond-
ent had not engaged in certain other unfair labor practices alleged in
the complaint, and recommended that these allegations be dismissed.
Thereafter, the Repondent and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs.
The Board 1 has reviewed the rulings of the-Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Pine State
Creamery Company, Inc., Raleigh, North Carolina, its officers , agents,
successors , and assigns shall :
1. Cease-and desist from :
(a) Discouraging membership in Teamsters Local Union No. 391,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization of its em-
ployees by discharging or in any other manner discriminating against
its employees in regard to their hire or tenure of employment or any
terms or conditions of employment.
(b) Interrogating any of its employees concerning their union
affiliation or organizational activities in a manner constituting inter-
ference, restraint, or coercion in violation of Section 8 (a) (1) of
the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Teamsters Local Union No. 391,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
'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 Rodgers , Fanning,
and Brown]
I The Trial Examiner incorrectly found that when employee Jones reported to Mann,
Respondent 's sales manager , that he was experiencing some difficulty in servicing the
Morgan account, Mann told him "that it was unnecessary to go back to their [Morgan's]
store in the afternoons on his way back to the plant " As disclosed by the record, Jones
testified that after discussing the matter with Mann, Jones decided, on his own initiative,
that it would be "unnecessary " to stop at the Morgan 's on his return trip In correcting
the Trial Examiner 's erroneous finding, we note that such correction does not affect our
-conclusion that in discharging Jones the Respondent violated Section 8 ( a)(1) and (3) of
the Act
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Helpers of America, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a con-
dition 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 Howell L. Jones immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole for
any loss of earnings he may have suffered by reason of the discharge
in the manner set forth in the section of the Intermediate Report en-
titled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its plant in Raleigh, North Carolina, copies of the notice
attached hereto marked "Appendix." I Copies of said notice, to be,
furnished by the Regional Director for the Eleventh Region shall,,
after being duly signed by the Respondent, be posted by Respondent
immediately upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter in conspicuous places, including all places
where notices are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Eleventh Region, in
writing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated the Act by discharging James Marshall
Hilliard, be, and it hereby is, dismissed.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
PINE STATE CREAMERY COMPANY, INC. 37
WE WILL NOT discourage membership in Teamsters Local Union
No. 391, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or in any other labor
organization of our employees, by discharging or- in any other
manner discriminating against our employees in regard to hire
or tenure of employment or any term or condition of employment.
WE WILL NOT interrogate our employees concerning their union
membership and activities.
WE WILL offer to Howell L. Jones immediate and full reinstate-
ment to his former or substantially equivalent position without
prejudice to any seniority or other rights previously enjoyed, and
make him whole for any loss of pay suffered as a result of the
discrimination against him.
AVE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist the
above-named Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized by Section
8 (a) (3) of the Act.
PINE STATE CREAMERY COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed by James Marshall Hilliard and Howell L . Jones, individuals,
on November 26, 1960, and January 30, 1961 , respectively, the Regional Director
for the Eleventh Region of the National Labor Relations Board, herein referred
to as the Board , issued a consolidated complaint and notice of hearing thereon on
February 14, 1961 , against Pine State Creamery Cmpany , Inc., the Respondent
herein , alleging violation of Section 8(a) (3) and ( 1) of the National Labor Rela-
tions Act, as amended ( 61 Stat. 136, 73 Stat. 519), herein called the Act. In its
duly filed answer, the Respondent admitted certain allegations of the complaint,
but denied the commission of any of the alleged unfair labor practices.
Pursuant to notice a hearing was held before the duly designated Trial Examiner
on February 28, and March 1, 1961 , at Raleigh , North Carolina. All parties were
afforded full opportunity to participate in the hearing, to be heard , to examine and
cross-examine witnesses , and to introduce relevant evidence . Though advised of
their rights to argue orally before the Trial Examiner , to file proposed findings of
fact and conclusions of law and briefs in support of their respective positions, the
parties did not choose to exercise their privilege.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon consideration of he entire record in the case , and from his observation of
the witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges and the answer admits certain facts regarding the Respond-
ent's business , but denies that it is engaged in commerce within the meaning of the
Act. By sheer coincidence the Board on the first day of the hearing herein , Febru-
ary 28, 1961, issued its Decision and Direction of Election in Case No. 11-RC-1401,
130 NLRB 892, wherein it found that the Respondent herein was - engaged in com-
merce within the meaning of the Act. In the circumstances the Trial Examiner
finds that the Respondent is a corporation duly organized under and existing by
virtue of the laws of the State of North Carolina, with office and principal place
of business at Raleigh , North Carolina, and branch plants at Dunn , Goldsboro,
Oxford, and Henderson , North Carolina. It is engaged in the business of processing
and selling dairy products .' During the past 12 months , which period is repre-
sentative of all times material herein, it purchased materials valued in excess of
$50,000 for its Raleigh plant , said materials coming directly from points outside
the State of North Carolina.
Upon all of the foregoing , the Trial Examiner finds that the Respondent is now
and at all times material herein , has been engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union No. 391, International Brotherhood of Teamster's,
Chauffeurs , Warehousemen , and Helpers of America , hereinafter called Union, is
a labor organization within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The events we are concerned with herein concern only the Raleigh plant of the
Respondent . From what the Trial Examiner gleans from the record, the Respond-
ent at all times material herein had approximately 200 employees at its Raleigh
plant . 2 All manufacturing and processing of dairy products is done at this plant.
In addition some distribution is handled at this plant.3 It is with the latter that we
are primarily concerned herein . The complaint lists the names of several of the
Respondent's officers and supervisory employees . Insofar as we are concerned
the following either testified at the hearing herein or were referred to in the record
by the witnesses in the course of their testimony ; (1) J. D. Kilgore, president; (2)
David C. Worth, personnel manager; (3) Grady Ferrell, sales manager, wholesale
milk department ; (4) E. R. Sweet, sales supervisor, ice cream ; ( 5) Sam N. Mann,
sales manager , ice cream ; (6) David G. Williams, route supervisor , wholesale milk;
and (7) Lynn E. Spivey, supervisor, wholesale milk.
A. The Union's organizational campaign
The record shows that sometime in the latter part of September 1960, a group of
the Respondent 's employees got together and discussed their working conditions.
The upshot of their discussion was that Howell L. Jones, one of the alleged discrimi-
natees herein , was designated by the group to contact the Union : Shortly there-
after, Jones called upon Leonard R. Cupp, a representative of the Union , and talked
with him about organizing the Respondent 's employees . During the course of their
conversation, Jones signed an application -for-membership card. Cupp promised
to assist in the organization campaign as soon as he completed a "job he was on."
He also gave Jones application -for-membership cards and requested that he pass
them out among the employees . According to Jones' credible testimony, he not
only passed out the cards , but along with Cupp called upon the employees and
secured the signatures of 130 employees . As a result of Jones' effort among the
employees , the Union filed a petition for certification representatives, with the
Board's Regional Office in Winston -Salem, North Carolina, on October 19, 1960.
Thereafter a representation hearing was held in Raleigh , North Carolina, on Novem-
1 Only employees of the Raleigh . North Carolina , plant are involved herein.
a See General Counsel's Exhibit No 1A
See the Board 's Decision and Direction of Election , 130 NLRB 892.
PINE STATE CREAMERY COMPANY, INC. 39
her 14, 1960. As indicated above, the Board's Decision and Direction of Election
130 NLRB 892 was issued on February 28, 1961.
It was stipulated at the hearing herein that Jones testified on behalf of the Union
at the representation hearing on November 14, 1960.
1. The alleged independent violation of Section 8(a)(1) of the Act
The complaint alleges in substance that the Respondent by Grady Ferrell, whom
the record shows was the sales manager of its wholesale milk department, "inter-
rogated its employees concerning their union membership, activities and desires,
on or about October 24, and November 10, 1960.114
From what the Trial Examiner is able to glean from the record, J. D. Kilgore,
the Respondent's president, sent each employee a letter sometime around the middle
of October 1960 in which he set forth the Respondent's opposition to the Union.
The letter was referred to by several witnesses in the course of their testimony;
however neither the General Counsel nor the Respondent chose to offer it in evi-
dence. One of the witnesses for the Respondent, Grady Ferrell, sales manager for
the wholesale milk department, testified that it was posted on the bulletin board
at the plant, at all times material herein. In the circumstances, the Trial Examiner
finds that Kilgore sent the letter referred to above to each employee, but makes no
finding as to its contents, except where reference thereto was made and litigated at
the hearing herein.
The record shows without contradiction that on or about October 18, 1960, that
all of the employees at the Respondent's Raleigh; North Carolina, plant were called
into the office of Ferrell for the ostensible purpose of soliciting their financial support
and pledges to the local United Fund drive. Each employee was privately inter-
viewed by Ferrell, not only concerning contributions to the United Fund, but also,
about his attitude toward the Union. Among those interviewed was James Marshall
Hilliard, one of the alleged discriminatees herein. According to his credible testi-
mony, Ferrell asked him "what his opinion" was regarding the Union, and he told
him in substance that ". . actually I don't know, I have never belonged to a
Union, and I don't know whether it would help us or it would be expensive to us,"
to which Ferrell replied, "Well, definitely, I oppose it, because the Company has
been nice to us all, and in particular me, I feel, . . . I don't think we need a
union." 5
In the considered opinion of the Trial Examiner the best account of what tran-
spired at the interviews is found in the testimony of Ferrell, himself. The following
excerpt therefrom is set forth below:
Q. What else did you discuss?
A. I asked him if he received the letter from the company in regards to the
effort of the Union to organize employees.
TRIAL EXAMINER: That has come up several times. Do you have that letter?
It has been in testimony of numerous witnesses about the letter, and I assumed
it would be offered in evidence.
The WITNESS: We don't have a letter here; it is the same letter that is posted
on our bulletin board in the plant. It merely states the company's position on
the union.
Q. (By Mr. STONE.) What did you tell Mr. Hilliard?
A. I asked him if he understood the letter; if there were any questions about
it; I would be glad to talk to him about it if there were; and I stated to him my
position.
Q. Just tell me what you told him.
A. I told him the company was opposed to a Union, as the letter stated. And
that we would resist in every way; that I was personally opposed to a Union; I
felt we had no need for it; the company had been good to me, and had been good
to all the employees; we had a fine organization; and we thought that we had no
need for outsiders to come in and direct our business or direct our employees.
Q. Did you discuss this with the other employees, too?
A. Each employee
TRIAL EXAMINER: You called them each aside?
The WITNESS: I had each one come to my desk to solicit his United Fund
pledge, and at the same time, I asked him if he had received the letter, and if
he understood the letter, and I stated the position on the union.
TRIAL, EXAMINER: That's what I mean. In private interviews?
4 Quotes from the complaint
5 Quotes from Hilliard's credible testimony.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The WrrNEss: Yes, sir.
Q. (By Mr. STONE.) When you discussed this letter with him, what did he
say?
A. He said he knew nothing about the Union; very little about the Union;
hadn't heard anything about it, or what to do.
Q. Did you ask him what he was going to do?
A. I did not.
Q. Were you interested in how he felt about the Union?
A. I'm certainly interested in all of them, sir.
Q. And you asked him; you tell me now that you didn't ask him how he felt?
A. I did not.
Q. You merely talked about this letter?
A. I talked about the letter, yes sir, I stated that I talked about the letter.
TRIAL EXAMINER: Maybe he talked about the letter and told him his position
about the thing, and as I understood it, you expressed your own opinion that
you didn't want any part of it?
The WITNESS: Yes, very emphatically.
2. Conclusionary findings regarding the independent' violations of
Section 8 (a) (1) of the Act
After long and careful consideration the Trial Examiner is convinced that Ferrell's
-interrogation of the Respondent's employees referred to above was violative of Section
,8(a) (1) of the Act. His reasoning is primarily predicated on the staging thereof and
the mode and manner in which he interrogated the employees, which as indicated
.above, is best described in his version of the affair. When this is considered in the light
of the impression he made upon the Trial Examiner while he was testifying, which, to
say the least, was "emphatically" vehement toward the organizational efforts of the
employees. He minced no words and voiced his opinions in clear and concise lan-
guage. When this is taken into consideration and one visualizes the individual em-
ployee who was subjected to his interrogation, stated as it was in his private office, then
to the Trial Examiner at least, the employees as normal human beings were mentally
subjected to restraint and coercion within the meaning of the Act.
There is no question but what Ferrell had the right to voice his opinion about the
Union, but it was the mode and manner in which he exercised that right that we are
concerned with herein. Freedom of speech of course is an inherent right, but society
at times is required to curb its abuse, for example, the false cry of "Fire" in a theater
packed with schoolchildren. The Trial- Examiner is also conscious of the fact that
Ferrell made no deliberate threats or promises of benefits in his interrogation, but as
indicated above this factor is outweighed by the inherent effect upon the employees
of the staging and the manner in which it was carried out. One would be most naive
to find that his interrogation had no effect upon the individual employees, and that it
was merely for the purpose of expressing his personal views and opinions on their
attempt to exercise their statutory rights under the Act.
In the considered opinion of the Trial Examiner, the following excerpt from the
-reasoning of the Court in the "Firedoor" case is applicable here: 6
Interrogation of employees is legal, when the questioning is not accompanied
by any explicit threats, cf. N.L.R.B. v. Beaner Meadow Creamery, 215 F. 2d 247
(3 Cir. 1954), if under all the circumstances coercion is not implicit in the
questioning. Matter of Blue Flash Express, Inc., 109 N.L.R.B. 59 (1954);
N.L.R.B. v. Armco Drainage & Metal Prod., 220 F. 2d 573, 582 (6 Cir. 1955),
cert. denied, 358 U.S. 838; N.L.R.B. v. Assoc. Dry Goods Corp., 209 F. 2d 593
(2 Cir. 1954); N.L.R.B. v. Syracuse Color Press, 209 F. 2d 596 (2 Cir. 1954).4
The most relevant factors are whether there has been a background of employer
hostility to and discrimination against the union 5 and whether the questions
4 See earlier cases holding that interrogation was per se illegal, Standard-Coosa-
Thatcher, 85 NLRB 1358 (1949) ; N L R B. v Dixon, 184 F. 2d 521 (8 Cir 1950)
cf. Texarkana Bits Co v N L R B , 119 F. 2d 480 (8 Cir 1941)
5 NLRB v. Hill & Hill Truck Line, Inc, 266 F 2d 883 (5 Cir 1959) ; NLRB v.
Wagner Iron Works, 220 F 2d 126, 139 (C A. 7), cert denied, 350 US. 981;
N L R B v. Chautauqua Hardware Corp , 192 F 2d 492 (2 Cir 1951) ; compare
N L R B v. Protein Blenders, 215 F. 2d 749 (8 Cir 1954) ; N L.R B v. Arthur
Winer, Inc, 194 F. 2d 370 (7 -Cir. 1952), cert. denied, 344 U S. 819.
a N L R B v. Firedoor Corporation of America, 291 F 2d 328 (C A. 2), enfg 127
-NLRB 1123.
PINE STATE CREAMERY COMPANY, INC. 41
seem to seek information which the employer in good faith needs-as when
individuals are asked whether they belong to the union so that the employer
can check the union's claim to represent a majority 6 or, to the contrary, seem
to seek information most useful for discrimination-as when employees are
asked who organized the union or whether named fellow workers belong .7
Other relevant factors are whether the identity of the questioner and the place or
method of interrogation imbue the interview with an unnatural formality which
tends to intimidate the employee and, to a lesser extent, whether the employees
did conceal their allegiance or denied membership when they actually had not
made up their mind and, therefore, became unwilling to take an active part in
later organizational activity or even, in the case of a small unit, afraid to vote
their true convictions at a later Board-conducted election. See Syracuse Color
Press, supra; Blue Flash Express, Inc., supra [dissenting opinion]. [Emphasis
supplied.]
G Blue Flash Express, Inc, eupra, N.L R B. v. Peerless Products, 264 F. 2d 769,
(7 Cir 1959) ; cf. NL.R B. v. Superior Co, 199 F. 2d 39 (6 Cir. 1952).
7 N L R B. v - Midwestern Instruments, Inc., 264 F. 2d 829 (10 Or. 1959)
N L R.B v Syracuse Color Press, supra, N.L R B. v. Swan Fastener Corp., 199
F 2d 935 (1 Cir. 1952).
In passing the Trial Examiner desires to point out that he is not unmindful of the
fact that the record herein contains no past history of antiunion discrimination.
Be that as it may, however, the Trial Examiner, for reasons set forth above, finds that
Ferrell's interrogation of the Respondent's employees was violative of Section 8 (a) (1)
of the Act.
3. The alleged discriminatory discharge of James Marshall Hilliard
The record shows that Hilliard was discharged by the Respondent on November 12,
1960, at the time he was employed as a route salesman in the milk distribution depart-
ment. His immediate supervisors at all times material herein were Grady Ferrell
and Lynn E. Spivey.? The events leading up to his discharge were as follows:
As indicated above Hilliard was one of the employees interviewed by Ferrell at the
time of the United Fund drive on or about October 18, 1960. According to Hilliard's
credible testimony matters other than the United drive and the Union were discussed
during the course of the interview. One of the matters was Hilliard's handling of a
complaint the Respondent had received from one of the customers on his route, a
Mr. Thomas who operated a grocery store. From what the Trial Examiner gleans
from the record this was the second complaint Thomas had made directly to the
Respondent in 1960 about the service he was receiving from Hilliard. One was in
January 1960, and the second was shortly before October 18, 1960. In the course of
their conversation Ferrell told Hilliard in substance that he was glad that he had
cleaned up the Thomas account, of which more anon below.
In addition to the Thomas complaint the Respondent had received other com-
plaints from customers regarding Hilliard's service, they likewise will be discussed
below.
As indicated above Hilliard was discharged by the Respondent on November 12,
1960. According to his credible testimony he was discharged by Ferrell when he
returned to the plant that evening. What transpired at that time is in the con-
sidered opinion of the Trial Examiner likewise best told in the following excerpt
from his testimony:
A. Well, I came in off the route, and there was a note pinned on my settle-
ment sheet which said he wanted to see me.
TRIAL EXAMINER: Who?
Q. (By Mr. DENIsoN.) Who?
A. Mr. Ferrell; and I immediately went to the office where he was, and he-
told me to go ahead and check up, that he wanted to see me after I checked up,
and I went on and checked up, and went in to see what he wanted with me.
The first thing he told me, he said, "Marsh, I think you are in the wrong busi-
ness," and I said, "You do?" and he said, "Yes, I do." He said, "I think we are
just going to have to get somebody else in your place, and just let you go."
And I asked him, I said, "Well, what's the matter, what have I done wrong?
and he said, "Well," he said, "We are just having too much old milk on your
route, and we are just not going to put up with it," and I actually begged him to
let me stay, and he told me, he says, "You go outside and let me make a tele--
7 See supra in re Ferrell.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
phone call ," so I did; and he called someone, I don 't know who, and told me
when I come back in there, I went back in there, and he told me, he said,
"Marshall , I have talked with some of the other officials, and they kind of left
it up to me, and I am going ahead on through with it." He says , "So, bad as I
hate to," he says, "I am going on through with it, because I know you feel like
you are being put on the spot, and ," he said , "You probably are," but he says,
"It looks like I am going to have to go on through with it."
And I told him, I did, "Well , if you are going to do it anyway ," I says, "I
-reckon that is that . You are letting me down , and you are letting me down hard,
because I don't have nothing to fall back on," and he says , "Yes," he realized
that and he told me, he says, "Another while back, when I spoke to you about
the union , YOU DIDN'T GIVE ME A SATISFACTORY ANSWER AT ALL,"
and I told him , I said, "I believe I can give you the same answer today that I did
that day," and that was all that he said about the union. [Emphasis supplied.]
Q. What answer did you give him?
A. I told him , "I told you that I actually didn 't know what I thought of the
union , I never belonged to a union, and I never worked with anybody that did,
and it might be a help to us, or it might be expensive to us."
Q. Is that all that was said in that conversation?
A. That is all that was said.
In the main Hilliard's account of what transpired at the time of his discharge was
corroborated by Ferrell , except his testimony concerning Ferrell 's remarks about the
Union. According to Ferrell he personally did not mention the Union in the con-
versation , but that Hilliard himself brought up the subject . In clarification of his
testimony he later testified, "I did not mention the union to him at any time; I have
never mentioned Union to any of our men unless they brought the question to me
first." [Emphasis supplied.] When Ferrell 's denial of Billiard 's version of their con-
versation about the Union is considered in the light of the record as a whole, par-
ticularly Ferrell 's admitted interrogation of the employees about the Union during the
United Fund drive, the Trial Examiner is convinced and finds that Ferrell made the
statement attributed to him by Hilliard. As indicated above a primary factor in
resolving this issue of credibility of Hilliard and Ferrell was the undisputed testi-
mony of Ferrell himself that it was he that brought up the question of the Union
at the time he interrogated the employees during the United drive, and not the in-
dividual employees.
The Respondent contends that Hilliard was discharged because of the careless
manner in which he serviced his route. In support of its contention it offered the
testimony of Ferrell , and other supervisory employees who were familiar with the
incidents that led up to its decision to discharge him. A resume of their testimony
follows below.
To begin with the Trial Examiner sees no reason to burden this report with a
minute examination of the host of derogatory testimony in the record regarding
Hilliard's shortcomings and derelictions of duty, for the simple reason that he, him-
self, admitted them for the most part at the hearing herein . Quite frankly, as the
Trial Examiner sees it, his principal complaint, as an individual, against the Re-
spondent was that he was unjustly denied a chance to make amends and clean up
the situation on his route.
According to G. T. Ferrell , sales manager of the wholesale milk department,8 the
Company over the years had received complaints from customers about the service
rendered them by the route salesman . The usual procedure was to discuss the matter
with the salesmen involved and let them clean up the situation . In the circumstances
he admitted in the course of his testimony that there was nothing new or novel about
the complaints that it had received regarding Hilliard until sometime in the early
part of 1960 . At that time the Company received a serious complaint from the
Thomas Grocery Company which was to the effect that it was "fed up," so to speak,
with the services it was receiving from Hilliard , and threatened to discontinue
handling the Respondent 's products unless the situation was cleared up. As the
Trial Examiner interprets the record Hilliard cleared up the situation to the satis-
faction of all concerned ; and that it was this particular incident that Ferrell referred
to in his conversation with Hilliard on or about October 18, 1960. It was in the
light of the Thomas situation that the incidents we are primarily concerned with
herein arose.
From what the Trial Examiner is able to glean from the record the Respondent
received additional complaints from customers on Hilliard 's route shortly after his
conversation with Ferrell on October 18, 1960. According to Lynn E. Spivey, route
8 See Supra
PINE STATE CREAMERY COMPANY, INC. 43
supervisor over the driver-salesmen, such as Hilliard, he received a complaint from
Sullivan's Grocery. He went out to the store and talked to Sullivan about the situ-
ation. In the course of their conversation Sullivan told him that if he "couldn't get a
better milk man, or change milk men he was going to very definitely change milk;
he was not going to go along with me no more with Hilliard." His complaint was
that Hilliard had not checked his milk and that his icebox was full of milk that was
anywhere from 10 to 15 days old. Spivey checked the box and found 12 cartons
of milk that were over 10 days old .9 After he had finished checking the milk at
Sullivan's, Spivey called on other customers on Hilliard's route, and received com-
plaints from several other customers regarding the service they were getting from
Hilliard. Their complaints for the most part concerned his failure to pick up "stale
milk." Upon his return to the plant he discussed the situation with Hilliard, and
then reported it to Ferrell.
We now come to the incidents that led directly to the discharge of Hilliard on
November 12, 1960 The Trial Examiner has particular reference to a new com-
plaint filed by the Thomas Grocery Company on November 8, 1960, and the "check-
up" on his route by David G Williams, Hilliard's route supervisor, on November 11,
1960. As the Trial Examiner sees it the Thomas complaint was, to put it in the
language of Ferrell, the manager of the wholesale milk department, the "straw
that broke the camel's back." The importance of the Thomas incident of Hilliard's
future with the Company is best told in the language of Spivey, primarily because it
led to Williams' checkup on the route, of which more anon. Consequently the fol-
lowing excerpt from Spivey's testimony follows below.
Q Did you spot Mr. Williams here on that route?
A. I did. On November 8th, Mr. Thomas called me, and I went to his store
on Hargett Street early in the morning, and he told me that my driver had just
waited on him and left, and he had sold a customer a half a gallon of milk
which had been carried home and brought back from the time the driver had
waited on him, until about 9:30, or ten o'clock that morning. And he showed
me the milk and the milk was eleven days old. It was smelly, you could tell;
it was right at the verge of being sour, and he told me then, "I'm going to put in
other milk; I cannot go along with you." He said "We have customers that
come in here and call for our milk and especially want Pine State milk, and
they are not going to keep calling for Pine State milk," and he only handled
our brand of milk. So I told him I would straighten it out, so I went on and
caught Mr. Hilliard on his route, and talked to him about the sour milk, and
asked him if he checked the milk; and then he said that did not; and I said,
"Well, you had several units of bad milk in this store, and this makes several
times I have called your attention to it," and I said, "Now, I want you to go
back to this store, check your milk, and pick up what milk you have got in the
store that is not salable." And I talked on with him about, quite a bit more
about the condition of his route, that I had found it in, and I told Mr. Hilliard
that "You and I have been working at Pine State quite a long time," and I said,
"I am trying to hold my job, and I would hate to see you cause me to lose my
job, because neither one of us should lose our job because of not doing the job
we should do."
Q. All right; did you report that to Mr. Ferrell?
A. I did. When I went in that day, I told Mr. Ferrell that I had a complaint
from Mr. Thomas, too, and he told me to get with the Route Supervisor over
Mr. Hilliard, and, have him clean that route up; that he had warned Mr. Hilliard
about the condition of his route being in before.
Q. Did you have anything else to do with the discharge of Hilliard?
A. No, sir, I didn't have anything to do; I just turned it over to Mr. Ferrell,
the findings.
As indicated 'above Williams made his check on November 11, 1960. A resume
'of his testimony follows.
According to Williams, he was a route supervisor at times material herein. One of
his duties was to go with the salesmen and to make periodical checks on their routes.
He further testified that during 1960 the Respondent had received complaints from
several customers about the way Hilliard was handling their accounts. He per-
9 The record shows that milk over 5 days old should be picked up by the driver- salesmen
and returned to the plant The age of the milk is determined by a code number pressed
into the side of the carton or container This number is changed every day and the
salesmen are under instructions to check the age of the milk by the code number every
time they call on a customer This is necessary in order to keep fresh milk in the boxes
for the purchasers
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sonally checked with them and endeavored to clean up the situation, by talking it
over with Hilliard and assuring the customers, in substance, that there would be
no recurrence of the matters complained of.
As indicated above Williams, on the instructions of Ferrell and Spivey, his su-
periors, accompanied Hilliard on his route on November 11, 1960. What he found
on Hilliard's route is best told in his testimony at the hearing herein, which is
fully credited by the Trial Examiner, primarily because Hilliard himself tacitly ad-
mitted them in his own testimony which has been discussed and set forth above.10
A. I found milk as much as twenty days old.
Q. How much stale milk did you find?
A. Well, there were 54 cartons of that milk, in pretty bad shape.
Q. What do you mean in pretty bad shape?
A. The pick-up date is five and six and most of them run from ten to twenty,
and any time it runs from ten to twenty, its getting inbad shape.
Q. What do you mean "bad shape"?
A. Cartons of milk get sour, and the carton gets round; even get mold on
them at twenty- I found some that way.
Q. Now, have you ever had any situation which compared to that on a
driver's route?
A. On a different route, no, sir.
Q. Any route?
A. No, sir.
Q. What is the most old milk that you normally find on a driver's route?
A. Well, none of my other routes have had very little, if any, old pick-up
date; maybe five or six, six and seven, which is when we pick it up; but once
in a while, you will find one set back, one or two, but you hardly ever find a
bottle of sour milk.
Q. In other words, you normally find milk that is past the pick-up date, one
or two cartons, but you hardly ever find milk that has set there from ten to
twenty days?
A. No, sir.
Q. Do you know of a case of anywhere near that, approaches that?
A. No, sir. -
Q. What did you do about it?
A. Well, I, at that particular time, turned the list over to Mr. Ferrell.
Williams further testified that the bad or stale milk was picked up from about
20 customers on the route. In clarification of his "check-up" he pointed out that
milk that was 5 or 6 days old and which ordinarily would have been picked up on
that date, November 11, was not included in the count of 54 cartons of stale milk
that he found on the route.
The record clearly shows that it is the responsibility of the driver-salesmen to see
that the milk in the customers' boxes is fresh at all times. The reason for this
rule is obvious, not only from the standpoint of good relations with storekeepers, but
to keep it out of the hands of their customers, the ultimate consumers.
As the Trial Examiner sees it Hilliard unquestionably had been more than a "bit
careless" in handling his route. This is evidenced by his admission at the hearing
herein that Williams had picked up "right smart" of stale milk on his route on
November 11, 1960.
Now as regards Hilliard's union activities. Quite frankly the record is most "hazy."
As the Trial Examiner sees it they were negligible. From what he is able to glean
from the record he signed an application-for-membership card on an undisclosed
date, except that it was sometime after the first of two union meetings that he attended.
Whether it was before or after he was interviewed by Ferrell on or about October 18,
1960, cannot be ascertained from his testimony at the hearing herein. Suffice it to
say that there is no substantial evidence in this record that he engaged in any activity
on behalf of the Union, at times material herein. This is evidenced by his own
testimony in his account of what he said to Ferrell about the Union on or about
October 18,11 and again at the time of his discharge on November 12, 1960.
Conclusion
The case' as to Hilliard, to put it mildly, presents an enigma when considered in
the light of his own testimony at the hearing herein. When considered in that light
20 See supra in re Hilliard's testimony of what transpired at the time he was discharged
by Ferrell on November 12, 1960.
11 See supra.
PINE STATE CREAMERY COMPANY, INC. 45
and that of the record as a whole the Trial Examiner is convinced and finds that
James M. Hilliard was discharged for cause. To be sure, Ferrell's remarks to him at
the time of his discharge, regarding his answers to questions posed him about the
Union at the interview during the United Fund drive, creates some suspicion, but
suspicion is not evidence and should not be indulged in or relied upon by any trier
of the facts. ' This is especially true in cases where the overwhelming weight of the
substantial and probative evidence is contrary to the doubt raised by mere suspicion.
Such is the situation herein. In the circumstances discussed, described and found
above, the Trial Examiner will recommend that the case as to Hilliard be dismissed
in its entirety.
4. The alleged discriminatory discharge of Howell T. Jones
The record shows and the Trial Examiner has found that Jones was not only the
outstanding union protagonist, but its most active "missionary," so to speak, among
the Repondent's employees. This is evidenced by his uncontradicted and undenied
testimony at the hearing herein that he had personally assisted the union organizers
in securing signatures to application-for-membership cards from 130 employees of
the Respondent. That his activities on behalf of the Union were well known to the
Respondent is illustrated by the stipulation of the parties at the hearing herein that
he appeared and testified on behalf of the Union at the representation hearing, Case
No. 11-RC-1401, on November 14, 1960, in Raleigh, North Carolina.
At the hearing herein the parties stipulated as follows regarding Jones' employ-
ment history with the Respondent:
Mr. DENISON: Mr. Examiner, I have a stipulation as to Mr. Jones at this time..
The stipulation reads as follows: "Mr. Howell Jones was first employed by the
company on June 16, 1953; his first job was that of relief man on four routes
at $180 per month; about six months later, he received his own route at $240 a
month; two years later he was switched to another route at,an increase in pay
which route he operated until the time of his discharge, at which time he was
making $310 a month. At the time of his discharge, Mr. Ed Sweat was his
route supervisor."
Mr. ALEXANDER: The company will agree to that stipulation and I might ex-
plain one thing, Mr. Denison, you may note that the $310 is a guaranteed mini-
mum, as all the others are.
TRIAL EXAMINER: Very well.
Mr. ALEXANDER: It is a guaranteed minimum plus commission on all those.
TRIAL EXAMINER: The stipulation has been accepted. I accept the stipulation.
As indicated above Jones was discharged by the Respondent on January 23, 1961.
The events leading up to his discharge were as follows: After he completed his route
on Saturday, January 21, 1961, he returned to the plant and checked in his load, at
about 5:15 p.m. Shortly thereafter he went upstairs, presumably to one of the
Respondent's offices, and got his settlement sheet. Attached thereto was a note in
which he was requested to make out his load sheet for the coming Monday, and
instructed to report to Mann, the manager of the wholesale ice cream department.
Jones did as instructed and that evening called the relief driver who normally would
take over his route Monday, January 23, and gave him certain information about the
route.
On Monday morning, January 23, 1961, Jones met with Mann and David C.
Worth, the personnel director, in the latter's office. What transpired at this meet-
ing is in the considered opinion of the Trial Examiner likewise best told in the fol-
lowing excerpt from Jones' credible testimony:
Q. And did you go in at nine o'clock?
A. Yes, sir, I did.
Q. And tell us exactly what happened then.
A. Well, I walked in just a few minutes before nine, and saw Mr. Mann, and
he told me to sit down, have a seat and wait a few minutes, and he would be
back directly; and he went upstairs, and about 45 minutes later, he came down,
and said, "Come on, let's go up to Mr. Worth's office," and we went up to Mr.
Worth's office, and Mr. Worth was not in at that time, as he had stepped out,
and Mr. Mann and I were just standing there, discussing a few things; and Mr.
Worth came in and had a seat , and Mr. Worth looked at Mr Mann, and looked
back, and Mr. Mann told me that they had decided that I was no longer needed
at Pine State Creamery, and I asked him why, and he told me I was giving in-
adequate service to my customers. and I asked him what he meant
And he said, well, I wasn't waiting on my customers, and I told him, "No,"
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I said , "Mr. Mann , that's not why I am being fired," I said, "It is because of my
union activity," and he looked at me, and said , "Are you calling me a liar?" and
I said, "No, sir , just take it for what it 's worth."
And there was some more discussion there, and Mr. Worth looked at Mr.
Mann , and says, "Well , I don't think we have the grounds to fire him," and
Mr. Mann said, "If we haven 't got the grounds-" and Mr. Worth looked at
me and told me that he would give me the chance to resign ; and I told him,
no, sir, that I had no intention of resigning with Pine State; that I liked the
job; and he said , "Well, that gives me no alternative . I will have to fire you."
-And I said "All right," and then the discussion came up about my pay, and
getting all my route accounts and personal accounts straight , and he said it
would take about forty-five minutes for that, and asked me to come back at that
time.
Q Is that all you remember about that conversation?
A. Yes, sir.
In the main Worth and Mann's testimony of what transpired at the time Jones
was fired is corroborative of that of Jones, except certain remarks attributed to Worth
by Jones, which have been set forth above in the excerpt from his testimony. The
Trial Examiner has particular reference to certain testimony elicited from Mann by
the General Counsel on cross-examination . Quite frankly the resolution of the cred-
ibility of the witnesses has plagued the Trial Examiner no end. Both Mann and Worth
specifically denied that the latter made the statement attributed to him by Jones, to
the effect that the Morgan case standing alone was not sufficient grounds for dis-
charge. A careful examination of Jones' version of what transpired and was said at
this time shows that Worth coupled the statement in question by then turning to,
Jones and saying ". . . he would give me the chance to resign .. " 12 On cross-
examination Mann admitted that Worth did make the statement attributed to him by
Jones concerning the offer to resign from his job with the Respondent . Mann 's testi-
mony is most "illuminating ," to say the least, for reasons other than the resolution of
this particular credibility issue, which will be apparent below. The following excerpt
from Mann 's testimony follows:
N
Q. (By Mr. STONE .) I'm asking what he did say; I don't want to know what
statement he didn't make ; according to your best recollection.
A. Mr. Worth , I believe stated that-if you would make your question a little
more specific , I think I could answer it.
Q. All I'm asking you to do is just recall what was said by you , what was said
by Mr. Jones, and what was said by Mr. Worth, at the time that you discharged
Mr. Jones. Just try to remember everything you can about it and tell me
what was said by each of them.
A. I'm not sure exactly what Mr. Worth did say. I have given you what I
recall of Mr. Jones' statements and my statements ; I do not recall exactly what
Mr. Worth said.
Q. Let me ask you this; did he say-this is Mr . Worth talking now-"I'll give
you a chance to resign from the company "-did he say anything about that?
A. Yes, I recall that.
Q. And what did Mr . Jones say?
A. Mr. Jones said he did not choose to resign; he would be fired.
Q. Was there any, discussion about the pay or the uniforms?
A. Yes, there was. Mainly, to the effect that we would work that out later
when Mr. Jones came back from taking his wife down town. [Emphasis,
supplied.]
After long and careful consideration the Trial Examiner credits Jones' version of
what was said and transpired in Worth's office at the time he was discharged on
January 24 , 1961 . His finding is predicated upon the demeanor of the witnesses
involved in this issue at the time they appeared and testified before him at the
hearing herein . Other factors were the obvious hostility of Worth and Mann toward
the Union and Jones ' participation in its organizational efforts among the Respondent's
employees . This reasoning applies particularly to Worth. When these factors are
considered in the light of Mann's admissions on cross-examination the Trial Examiner
is convinced that Jones ' version of what transpired and was said at the time of his
discharge was a true account thereof and consequently is fully credited by the Trial
Examiner . In the circumstances the Trial Examiner finds that Worth made the
statements attributed to him by Jones in his testimony before him at the hearing
herein.
12 Quotes from Jones ' testimony , also found in the excerpt from his testimony , supra.
PINE STATE CREAMERY COMPANY, INC. 47
Jones' version of what transpired at the time of his discharge regarding the reasons
stated to him by Mann as the grounds for his discharge was in substance that it was
because he was giving "inadequate service" to his customers . Mann testified that the
primary reason for his discharge was ". . . that he had given inadequate service to
some of his customers during the period of this special sale on quarts of ice cream." 13
As the Trial Examiner sees it Mann had particular reference to two customers, Mor-
gans' Grocery, and the Angus Barn, a "steak house" on Jones' route. Though
mention was made of other customers, such as Fuller's, the record indicates that it
was the Morgans and Angus Barn accounts that the Respondent stressed as the most
important examples of Jones' derelictions on his route during the period in question.
Let us take a look at the record as a whole concerning these particular customers.
As the Trial Examiner sees it one of the major factors relied upon by the Respondent
as justification of its discharge of Jones was his failure to follow its instructions to go
on his summer schedule during its special sale of "Ice Cream Quarts" in January 1961.
The record shows that on January 9, 1961, the route salesmen in the ice cream
department were instructed by Mann, the manager of the department, at a "pep"
meeting to go on their "summer schedule" during the special sale which was sched-
uled for the week of January 16, 1961. This was an annual event and widely adver-
tised by the Respondent over the radio , television , and in the press . Ordinarily route
salesmen work 4 days during the winter and 5 days during the summer months.
According to Edward R. Sweat, route supervisor over the ice cream salesmen, the
Respondent received a complaint from the Morgans about the service they were
receiving from Jones. As a result, Mann instructed him to go out to their place of
business and to make a check, which he did. He found that they were out of ice
cream and that Jones had not serviced them since December 6, 1960. He told Mrs
Morgan that he would go up further on Jones' route and "catch him . and I
would have him come by . . ." with his truck and leave them ice cream.i4
He went on up the route and, as the Trial Examiner interprets the record, waited at
or near Fuller 's Crown Service Station , for 21/2 hours, and that Jones never showed
up. He then went back to the Morgans and told them that he would send some ice
cream out the next day 15
While he was waiting at Fuller's for Jones to show up he checked up on their ice
.cream and found that Jones had not serviced them in accordance with instructions
with the "Special Quarts." In the interim he dropped around to some other custom-
ers nearby and found that they too had not been serviced by Jones with the "Special
Quarts" on his summer schedule, that he was expected to follow during the special
sale.
Upon his return to the plant Sweat informed his supervisor, Mann, what he had
found on Jones' route.
Jones' version of what transpired on January 17, 1961, is at considerable variance
with Sweat's account , particularly regarding certain customers whom he reported to
Mann had not been serviced by Jones on that particular date. The gist of Jones'
testimony was to the effect that several of the customers named by Sweat in his report
to Mann , were not on his Tuesday route but on his Saturday route, such as Jones'
Grocery. As to Fuller's, where Sweat testified he waited 21/a hours for Jones, he
testified that on Tuesdays his route was in a different direction , and that it , too, like
the Jones account, was on his Saturday route. He also pointed out in his testimony
that it was so listed in his route book which Sweat had with him when he made his
check on Tuesday, January 17, 1961; and that he pointed this fact out to Sweat during
the course of their discussion that evening when he returned to the plant.
Now back to the Morgans. According to Jones, and the Trial Examiner credits
his entire testimony regarding this particular account for reasons which will be
apparent below, they had been a source of trouble ever since he had been servicing
their place of business . The appraisal of the testimony of the Morgans had been
most difficult. The Trial Examiner has read it and reread it and quite frankly is
utterly bemused by its contradictions to the point of befuddledness . Suffice it to
say, that of the two, Mrs. Morgan impressed him as the most reliable witness. The
gist of her testimony was to the effect that Jones had failed to call on them from
December 6, 1960, to January 17, 1961. On that date she called the Respondent
and complained about the service she was receiving from Jones. She said that they
had been out of ice cream for 2 weeks and that Jones had not called upon them
since December 6, 1960; and that if they did not get better service they were going
to" . . . have to make arrangements and get another box from some other people,
13 Quotes from Mann ' s testimony
14 Quotes from Sweat 's testimony
15 See infra in re 11Iorgan's.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and get ice cream." 16 As the Trial Examiner interprets the record, Mann got the
call from Mrs. Morgan and then turned her over to Sweat to whom she actually
made the complaint. Shortly after their conversation, Sweat drove out to their
store and delivered some ice cream. While there he checked the ice box and found
that it was empty. As indicated above this occurred on the same day, January 17,
1961, that Sweat made the check at Fuller's, Jones' Grocery, and other stops on
Jones' route.
As indicated above the Morgans' account had been a source of trouble to Jones
ever since he had been on, the route. As he put it they constantly "complained
about anything and everything," over the years that he served them. They were
the first stop on his Tuesday and Saturday routes. He further testified that he
stopped there every morning sometime between 6:30 a.m. and 6:45 a.m., and waited.,
one-half hour at all times material herein, and that on many occasions the store was
not open, nor was there any indication that there was anybody about the premises.
He also testified that he had on two occasions within at least a 6-month period be-
fore his discharge gone back by the store in the afternoon and found no one there.
He reported these instances to Mann, who told him that it was unnecessary to go
back by their store in the afternoons on his way back to the plant. As indicated the
exact date of his recalls at the Morgans is not shown. Nevertheless his testimony
stands uncontradicted and undemed in the record and is credited by the Trial
Examiner.
From what the Trial Examiner is able to glean from Morgan's testimony he went
to the store every morning from around 3:30 a.m. to 4:30 a.m. during the summer-
time and anywhere from 5:30 a.m. to 6 a.m. during the winter months. He would
open up the store and stay these to around 7 a.m. and then go home and get his
breakfast. While he was gone either his wife or son would look after the store.
After he finished his breakfast he would start out on his produce route, which the
record indicates took up the major part of each day, at all times material herein.
Though both the Morgans insisted that there was someone in the store at all
times throughout the day, there is testimony in the record that refutes their conten-
tion. For example, Mrs. Morgan admitted that there were times when whoever
might be in charge of the store might have locked it up and slipped out back to the
"bathroom" which was located about 50 feet back of the store, but that this was only
a temporary situation. However, the record contains an admission on her part of
an incident that took place shortly before the hearing herein that indicates, at least
to the Trial Examiner, that the business was, to put it mildly, somewhat "loosely"
operated. The Trial Examiner has reference to her testimony concerning the cir-
cumstances surrounding the closing of the store on or about February 9, 1961. On
cross-examination she admitted that the store was not open on Thursday, February/
9, 1961. Her testimony is in the considered opinion of the Trial Examiner most
illuminating . The following excerpt therefrom follows:
Q. (By Mr. STONE.) Do you remember when you left to go to Georgia, or
Florida, or wherever you went on your trip?
A. February 9th.
Q. Do you remember when you left to go to Florida, or Georgia?
A. It was Georgia we went to. When did we go; on Tuesday? On Tuesday,
I think it was.
Q. What month?
A. In February; I don't know what date it was. I took a notion , and Mr.
Morgan and the boy all at once, to go one night, so I don't remember exactly
what date we went. If you think that's confusing; but if you don't keep up
with all these dates and all the dates of other things that you have to keep up
with, and you take a trip all of a sudden, you wouldn't know the date you took
it on; I don't. I didn't keep up with it. [Emphasis supplied.]
The record neither shows how long the Morgans were gone, nor when the store
was reopened for business. What the record does indicate, however, is that the
Respondent was not notified of their departure either before they closed the store
or when they reopened it. Be that as it may, however, her testimony, to the Trial
Examiner at least, lends credence to Jones' testimony about the mode and manner in
which they operated their place of business, particularly as to their attitude toward
those who supplied them with their merchandise, such as the representatives of
the Respondent herein. They, at least, were entitled to notification of some kind
from the Morgans regarding their intentions.
Further evidence that the Morgans were not at their place of business during
ordinary business hours is found in Jones' uncontradicted and undenied testimony
10 Quotes from Mrs C M. Morgan's testimony.
PINE STATE CREAMERY COMPANY, INC. 49
that he went back by their store to service them on the Tuesday after Christmas,
December 27, 1960, and found the store closed. In the circumstances the Trial
Examiner credits Jones' testimony.
As indicated above David C. Worth, the Respondent's personnel manager, was
present at the time Jones wasdischarged. In the course of his testimony before the
Trial Examiner regarding what transpired at that time, he stated that the only cus-
tomer that was discussed was the Morgans, but that Jones was informed ". . . there
were others." By the "others" the Trial Examiner is convinced that he had reference
to the complaints filed with Mann by Sweat after his check on January 17, 1961.
The Trial Examiner has carefully examined the record and has considered in par-
ticular Sweat's testimony relative to what he found on Jones' route on January 17,
1961. Since the Trial Examiner has commented at some length above as to Sweat's
testimony he sees no necessity of reiterating at this stage of his report. However,
there remains one account on Jones' route that was evidently of grave concern to
the Respondent. This is evidenced by the host of testimony it educed from the wit-
nesses at the hearing, both on direct and cross-examination, regarding the account
in question; "The Angus Barn."
The record shows that the "Angus Barn" is a "steak house" that was opened up
sometime around July 1, 1960. It is located on a highway about 12 miles from
Raleigh, North Carolina. It was on Jones' Tuesday and Saturday route. Ordinarily
he would arrive there at around 1 p.m. On many occasions he found the place
closed, and was unable to service them. In fact on one occasion he went by there
and though he found the place open, there was nobody there. On his own initiative
he checked their box and left them some ice cream; and signed the sales ticket him-
self. As the Trial Examiner sees it the difficulty in servicing Angus Barn was be-
cause it did not open for business until 5 p in. Jones told Mann about his difficulties
in servicing the account, and pointed out to him that it was at least 7 or 8 miles
away from the nearest point on his way back to the plant. According to Jones,
Mann told him not to go back by Angus Barn on his return trip to the plant. Since
his testimony stands uncontradicted and undenied in the record it likewise is fully
credited by the Trial Examiner.
The Respondent also made much ado at the hearing herein regarding a particular
incident involving the "Angus Barn" that occurred shortly before Jones was fired,
January 23, 1961. The Trial Examiner has reference to a complaint that the Re-
spondent received from someone from the Angus Barn about their ice cream serv-
ices. From what the Trial Examiner is able to glean from the record the call was
received by President Kilgore who turned the matter over to Mann. He checked
Jones' sales records and found that he had made no sales to Angus since January 1,
1961. He admitted however that this particular record would not show whether
or not Jones made his calls there on Tuesdays and Saturdays. On Saturday, January
21, 1961, Jones took an order of ice cream to the Angus Barn that consisted of 2
gallons of ice cream, in half-gallon containers. He was unable to deliver it be-
cause the place was locked up and there was nobody around to let him in. In the
circumstances he took the order back to the plant and made a notation on his sales
ticket as to why he was unable to deliver the order. Mann admitted at the hearing
herein that Jones' route book contained the information referred to above. More-
over this was the very order that was referred to at the hearing herein by witnesses
for the Respondent as an example of Jones' derelictions in handling the account
Singularly enough, though the Angus Barn incident was advanced as a major
cause for Jones' discharge at the hearing herein, it was not even mentioned by either
Worth or Mann at the time they discharged him. The Trial Examiner considers
this factor of major importance in view of the fact that both admitted at the hearing
herein that the only customer specifically mentioned at that time was te Morgan
Grocery store.
From what the Trial Examiner is able to glean from the record Jones' record with
the Respondent over the years was to say the least very good. There is no sub-
stantial evidence in this record that he had ever experienced any serious difficulties
with his superiors until December 1960, and the latter part of January 1961. In
fact the stipulation regarding his employment record shows he had received several
increases in salary during those years. When one takes this factor alone into con-
sideration and views it in the light of the record considered as a whole regarding the
complaints of the major complainant, the Morgans, he would be most naive to
honestly believe that this was the motive for Jones' discharge.
5. Conclusion as to the alleged discriminatory discharge of Howell L. Jones
The case as to Jones has been most difficult to decide in view of the vagueness of
the reasons advanced by the Respondent at the hearing herein, when considered in
C30849-62-vol. 134-5
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the light of what admittedly transpired in Worth's office at the time he was dis-
charged. The Trial Examiner has particular reference to the role of the Morgans
in this regard. For example Jones' uncontradicted and undenied testimony regard-
ing his experiences with them, and the admissions and probative testimony elicited
from the Morgans themselves at the hearing herein as to the mode and manner
in which they operated their business. When this factor is considered in the light
of the Angus Barn account, then the Trial Examiner's "befuddlement" is under-
standable. To add these factors to the third reason advanced by the Respondent
for Jones' discharge, that is, his failure to go on his summer schedule during
the "Special Sale" in January 1961, then befuddlement assumes importance and
becomes more understandable for reasons set forth below.i7
Of course the Respondent had the right to discharge Jones, or any other employee,
for either a valid reason, or even for reasons predicated on mere hearsay,iB or
for no reason at all. It all depends on what was the real motive or reason behind its
action. But where, as here, the reason advanced by the Respondent is so picayunish
in the light of his past record as an employee, then one of necessity must look about
for the real reason. In the considered opinion of the Trial Examiner it requires but
little "soul-searching," so to speak, to arrive at the real reason for Jones' discharge.
In the first place one must take into consideration the fact that insofar as the record
herein is concerned Jones was not only the outstanding union adherent in the
employ of the Respondent at its Raleigh plant, but had personally assisted the
organizer for the Union in securing applications for membership in the Union from
130 of the Respondent's employees. Moreover, the Respondent was well aware of
his union activities and had been since he testified for the Union at the representa-
tion hearing on November 14, 1960. When these factors are considered in the light
of the open and avowed hostility of the Respondent toward the unionization of its
employees, the Trial Examiner is convinced that the Morgan and Angus Barn inci-
dents and his conduct during the "Special Sale" in January 1961, were mere pretext,
and bespeak an ulterior motive on the part of the Respondent in advancing them
as a motive for his discharge.
In the circumstances and upon the record considered as a whole the Trial Examiner
is convinced and finds that Howell L. Jones was discharged by the Respondent
because of his open and notorious activities on behalf of the Union; and that such
conduct was violative of Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection 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 obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It has been found that Respondent by discharging and refusing to reinstate
Howell L. Jones, discriminated against him in respect to his tenure of employment
in violation of Section 8(a)(3) of the Act. The Trial Examiner shall therefore
recommend that Respondent cease and desist therefrom and from infringing in
any other manner upon the rights of employees guaranteed in Section 7 of the Act.19
He shall recommend that the Respondent offer to the aforementioned employee im-
mediate and full reinstatement to his former or substantially equivalent position 20
without prejudice to his seniority or other rights and privileges. He shall also recom-
mend that Respondent make him whole for any loss of earnings that he may have
suffered because of the discrimination against him, by a payment of a sum of money
equal to the amount he would normally have earned as wages from the date of his
discrimination to the date of the offer of reinstatement , less his net earnings during
said period, with backpay computed in the customary manner .21 He shall further
recommend that the Board order the Respondent to preserve and make available to
17 Though not specifically advanced by Webster, "befuddlement" in instances such as we
are faced with herein. Is definitive of "pretext," of which more anon
18 Ohio Associated Telephone Company v N.L R B , 192'F 2d 664 (C A 6), 91 NLRB 932
19 N L R B v Lamar Creamery Company, 246 F. 2d 8 (C A 5).
20 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827
21F. W. Woolworth Company, 90 NLRB 289
CUSTOM QUILTING CORPORATION 51
the Board upon request payroll and other records to facilitate the checking of the
amount of backpay due and the rights of employment.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Teamsters Local Union No. 391 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , is a labor organization within
the meaning of Section 2(5) of the Act.
2. Pine State Creamery Company, Inc., is an employer within the meaning of
Section 2 ( 2) of the Act and is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
3. By discriminating in regard to the tenure of employment of Howell L. Jones„
Respondent has engaged in, and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
4. By the foregoing conduct, and by privately interviewing its employees and by
emphatically informing them of its opposition to the Union , and interrogating each
and every employee as to his opinions and sympathies toward the Union in private,
Respondent has interfered with, restrained , and coerced its employees in the exer-
cise of their rights guaranteed them by Section 7 of the Act and thereby 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 affect commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The Respondent did not violate Section 8(a) (3) or ( 1) of the Act by discharg-
ing James Marshall Hilliard on or about November 12, 1960.
[Recommendations omitted from publication.]
Custom Quilting Corporation and District 65, Retail , Wholesale
and Department Store Union, AFL-CIO. Case No. 2-CA-7635.
November 7, 1961
DECISION AND ORDER
On March 10 , 1961 , Trial Examiner Sidney Sherman issued his In-
termediate Report in the above -entitled proceeding , finding that the
Respondent had engaged in certain unfair labor practices alleged in
the complaint and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter , the Charging Party and the
General Counsel filed exceptions to the Intermediate Report and the
General Counsel filed a brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing , and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
the case , and hereby adopts the findings ,' conclusions , and recom-
mendations of the Trial Examiner.
1 In the absence of exceptions , we adopt pro forma the Trial Examiner 's findings of a
violation of Section 8(a) (1) relating to Respondent's threatening its employees with re-
134 NLRB No. 9.