Arkansas Grain Corp.

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 111 (N.L.R.B. 1967)

ARKANSAS GRAIN CORPORATION 111
Arkansas Grain Corporation and International
Union of United Brewery, Flour , Cereal, Soft
Drink and Distillery Workers of America,
AFL-CIO. Cases 26-CA-2518 and 26-CA-
2596
June 28,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On April 21, 1967, Trial Examiner John H.
Eadie issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial-Examiner's Decision. The Trial Ex-
aminer also found that the Respondent had not en-
gaged in other unfair labor practices alleged in the
complaint. Thereafter, the General Counsel filed
exceptions to the Decision together with a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
The complaint alleged that Respondent indepen-
dently violated Section 8(a)(1) by committing vari-
ous acts of interference, restraint, and coercion, and
that it violated Section 8(a)(3) and (1) by dis-
criminatorily harassing an employee because of his
union activities. The Trial Examiner found a single
independent 8(a)(1) violation, based upon Respond-
ent's having threatened employees with discharge
because of their union activities. We agree with and
adopt this finding, to which no exception is taken.
However, the Trial Examiner found that the allega-
tions that Respondent violated the Act in other
respects were not substantiated by the record. Con-
trary to the Trial Examiner, and in accordance with
the exceptions of the General Counsel, we find that
Respondent engaged in additional unfair labor prac-
tices as set forth below:
1. Interference, restraint, and coercion
a. The August 121 conversation between Respond-
ent Manager Higginbotham and employee Irwin
On August 12, 1966, shortly after Higginbotham
had learned that employee Irwin had solicited a fel-
low employee to sign a union card, Higginbotham
told Irwin, "Now, Thomas, don't get yourself in
trouble by passing out cards out there." The Trial
Examiner found that, in effect, Higginbotham had
merely warned Irwin that the distribution of cards
in the plant during working time was against
Respondent's policy. We find nothing in the record,
however, which supports the Trial Examiner's con-
clusion that the prohibition against solicitation was
limited to working time. Accordingly, since Higgin-
botham's warning, reasonably construed, would
restrain solicitation by employees on nonworking
time as well as on working time, we find that
Respondent thereby violated Section 8(a)(1) of the
Act.2
b. The August 12 conversation between Higgin-
botham and employee Bunker
Shortly after having spoken with Irwin, Higgin-
botham had a conversation with Bunker. During
this conversation Higginbotham asked Bunker why
he was dissatisfied and what he was trying to ac-
complish by engaging in union activities. Higgin-
botham also warned Bunker, "Billy, if we get a
union in here we'll have a set of rules to go by and
I'll guarantee you we'll go by them. If it say two
ten-minute breaks, that's what you'll get, and what-
ever else the rules are." The Trial Examiner, rely-
ing on Bunker's admission that the policy on breaks
had been changed before the employees had en-
gaged in any union activity, found that this state-
ment did not constitute an unlawful threat of
reprisal. However, since it is apparent that Higgin-
botham's statement was not limited merely to the
Company's policy on breaks and would ordinarily
be understood as a threat of imposition of generally
more stringent working conditions, we find that
Respondent, in this regard, violated Section 8(a)(1)
of the Act. In addition we find that Respondent
further violated Section 8(a)(1) by the interrogation
of Bunker concerning his union activities.
c. The August 13 conversation between Plant Su-
perintendent McDonald and employee Bunker
During the August 13 conversation between Mc-
Donald and Bunker, McDonald made threats of
discharge which the Trial Examiner found to have
violated Section 8(a)(1). During this same conver-
sation, McDonald stated, "[W]e aren't going to
sign a contract. There's a million ways we can get
around signing a contract, being as small organiza-
I All dates refer to 1966 unless otherwise indicated.
' See Finesilver Manufacturing Company, 160 NLRB 1400, 1403.
166 NLRB No. 18
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion as it is." In accordance with settled Board pol-
icy, we find this statement to have been an advance
announcement that Respondent had no intention of
negotiating in good faith or entering into a
collective-bargaining agreement even if the Union
were to be designated by a majority, and, as such,
was violative of Section 8(a)(1).3
2. Discrimination
The complaint alleges that Respondent violated
Section 8(a)(3) and (1) by discriminatorily harassing
employee Edwards with reprimands because of his
union activity.
The record shows that Edwards and Bunker were
the two principal union organizers. McDonald's
knowledge of and opposition to Edwards' union ac-
tivities were demonstrated during the August 13
conversation between McDonald and Bunker,
when McDonald took a union card from his pocket
and said, "[Edwards has] lost his job and this could
very well lose a lot of other people's jobs.... I
don't see what's the reason you boys want a union
in here."
Although Edwards had not, in fact, been
discharged, he received two warnings, which are
the subject of the instant allegation, during a con-
versation with McDonald on November 13. This
conversation arose out of an incident involving a
strainer, an item important for the plant's operation,
which had been left out of place by one of Edwards'
fellow employees. Because Edwards had worked
the last shift before the strainer was discovered to
have been left out of place, McDonald suspected
that Edwards was responsible. McDonald at-
tempted to verify his suspicion by asKing Edwards'
foreman whether Edwards had left the strainer out.
The foreman indicated that he did not know who
had left it out, but despite their uncertainty, Mc-
Donald noted in the logbook, "Nathan Edwards left
a strainer out of the miscella line and there is no ex-
cuse for this." Edwards, understandably annoyed,
told his foreman that he had not left the strainer out,
made a request that the logbook notation be cor-
rected, and, when said request had gone unheeded,
made his own notation in the logbook, "Investiga-
tion before accusation, please." Rather than cor-
recting his mistaken accusation of Edwards, Mc-
Donald instead reprimanded Edwards for showing
a lack of respect for management, indicating that
this was his second warning. Edwards, never having
received an earlier warning, sought explanation as
to the first. McDonald responded by referring to an
incident which had occurred 3 months earlier,
rebuking Edwards for having taken a day off prior
to ' his vacation without permission from the office.
What had occurred, in actuality, was that Edwards
had obtained permission to find a replacement to
work the second half of his shift, and that his
foreman had told him that he could take personal
time off as long as he found someone to work his
shift for him. Later that day Edwards decided to ob-
tain a replacement for the first half of his shift as
well, and he did so. Although Edwards did not seek
management approval, his replacement, before Ed-
wards' shift was to begin, did notify his foreman
who agreed to the arrangement.
The foregoing amply establishes that the
warnings given Edwards were thinly premised and
were issued under conditions suggesting Respond-
ent's disposition to retaliate against a known union
protagonist. Thus, it does not appear that either
warning was preceded by effective investigation of
the misconduct imputed to Edwards. Concerning
the earlier warning, such investigation would have
disclosed that Edwards or his substitute had
received advance permission from the foreman be-
fore Edwards was scheduled to work on August 12.
Also significant is the absence of any reference to
this incident by any management official until 3
months later. Concerning the strainer incident,
reasonable investigation would have disclosed that
Edwards was not responsible and that the notation
in the logbook was false. Indeed, when Edwards
called this fact to the attention of management, no
correction was made, thereby provoking Edwards
to make the above-described notation on the log-
book himself. In our opinion the dubious nature of
the warnings and the questionable circumstances
under which they were issued, when considered in
the light of Respondent's opposition to employee
organization and its knowledge of Edwards' role as
a union adherent, adequately establish that the
warnings were issued as part of a campaign of
harassment against Edwards because of his union
activities. For these reasons, we find, contrary to
the Trial Examiner, that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by issuing warnings
to Edwards which could be used to support a future
discharge.
THE REMEDY
Having found that Respondent engaged in unfair
labor practices in addition to those found by the
Trial Examiner, we shall order Respondent to cease
and desist therefrom. We shall also remedy the dis-
criminatory harassment of employee Edwards by
ordering the Respondent to remove or strike any
notation of the warnings found to have been dis-
criminatorily given to Edwards, so that such
warnings may not be considered as factors giving
rise to future disciplinary action against him.
3 See, e g ., Whitfield Pickle Co., 151 NLRB 430,436.
ARKANSAS GRAIN CORPORATION 113
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, Arkansas Grain Corporation, Helena, Arkan-
sas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with discharge
because of their membership in or activities on be-
half of the Union.
(b) Threatening employees with the implementa-
tion of more stringent working conditions in the
event that they choose to be represented by a labor
organization.
(c) Declaring the futility of collective bargaining.
(d) Interrogating employees concerning their
union activities, in a manner constituting inter-
ference, restraint, or coercion, within the meaning
of Section 8(a)(1).
(e) Threatening employees with discipline in the
event that they engage in union solicitation, without
specifying that such solicitation is forbidden only
during working hours.
(f) Discouraging union activity by discrimina-
torily harassing employees with reprimands and
warnings which could lead to their discharge.
(g) In any like or related manner interfering with,
restraining, or coercing its employees in the exer-
cise of their right to self-organization, to form labor
organizations, to join or assist any labor organiza-
tion, to bargain collectively through representatives
of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection.
2. Take the following affirmative action which
we find will effectuate the policies of the Act:
(a) Remove or strike any notation of the
warnings found to have been discriminatorily given
to employee Edwards, so that such warnings may
not be considered as factors giving rise to any future
disciplinary action against Edwards.
(b) Post at its plant in Helena, Arkansas, copies
of the attached notice marked "Appendix."4 Copies
of said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by
the Respondent or its authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for Region 26,
in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
4 In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing 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:
WE WILL NOT threaten our employees with
discharge because of their membership in or
activities on behalf of International Union of
United Brewery, Flour, Cereal, Soft Drink and
Distillery Workers of America, AFL-CIO.
WE WILL NOT threaten imposition of more
stringent working conditions in the event that
our employees choose to be represented by a
labor organization.
WE WILL NOT oppose collective bargaining
by announcing that we will refuse to sign a con-
tract with a labor organization chosen by our
employees to represent them for purposes of
collective bargaining.
WE WILL NOT interrogate our employees
concerning their union activity.
WE WILL NOT prohibit solicitation during
nonworking hours.
WE WILL NOT harass our employees by dis-
criminatorily giving them warnings and repri-
mands.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-or-
ganization, to form labor organizations, to join
or assist any labor organization, to bargain col-
lectively through representatives of their own
choosing, and to engage in concerted activities
for the purpose of collective bargaining or
other mutual aid or protection.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
any labor organization.
ARKANSAS GRAIN COR-
PORATION
(Employer)
Dated By -
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting, and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Office, 746 Federal Office Building, 167 North
Main Street, Memphis, Tennessee 38103,
Telephone 534-3161.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN H. EADIE, Trial Examiner: This proceeding was
held before me in Helena, Arkansas, on December 8,
1966, on the consolidated complaint of the General
Counsel and the answer of Arkansas Grain Corporation,
herein called the Respondent.' The issue litigated was
whether the Respondent violated Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended. After
the conclusion of the hearing, the Respondent filed a brief
with the Trial Examiner.
Upon the entire record in the case and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Arkansas corporation with a
place of business located at Helena, Arkansas, where it
is engaged in the processing and sale of grain.
During the period of 12 months preceding the date of
the complaint herein the Respondent purchased and
received at its Helena plant, directly from points outside
the State of Arkansas, goods and products valued in ex-
cess of $50,000. During the same period of time the
Respondent processed, sold, and shipped goods and
products valued in excess of $50,000 from its Helena
plant directly to points outside the State of Arkansas.
The consolidated complaint alleges, the Respondent's
answer admits, and the Trial Examiner finds that the
Respondent is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of United Brewery, Flour, Cereal,
Soft Drink and Distillery Workers of America,
AFL-CIO, herein called the Union , is a labor organiza-
tion which admits to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
Shortly after August 1, 1966, employees Billy Bunker
and Nathan Edwards met with a representative of the
Union. Thereafter, Bunker distributed union cards to em-
ployees. Employee Thomas Irwin solicited employee
Robert Raymond to sign one of these cards in the plant
during working hours. Raymond reported the incident to
his foreman, Charles Warhurst, and gave him the card.
Warhurst, in turn, gave the union card to Frank Mc-
Donald, the plant superintendent.
On August 12, Irwin had a conversation with William
Higginbotham, the Respondent's manager, when he went
' The charge in Case 26-CA-2518 was filed on August 16, 1966.
Charges in Case 26-CA-2596 were filed on November 7 and 14 and
December 1, 1966 The consolidated complaint issued on December 1,
1966.
to the office in order to get his check. Higginbotham told
him, "Now, Thomas, don't get yourself in trouble by
passing out cards out there." Irwin replied, "Mr. Higgin-
botham, somebody just gave me a card to give to
[Raymond], and I did."2 Shortly after this conversation,
Higginbotham spoke to Bunker when the latter went to
the office to get his check. He told Bunker that he was
"disappointed" in him. When Bunker asked him what he
meant, Higginbotham replied, "you know what I mean.
Just don't get yourself in trouble about passing union
cards on the job." Bunker denied that he had distributed
cards "on the job." Higginbotham then asked him why he
was dissatisfied and what he was trying to accomplish.
Bunker complained that he was not making as much
money as some other employees. Higginbotham said,
"Billy, if we get a union in here we'll have a set of rules to
go by and I'll guarantee you will go by them. If it says two
ten-minute breaks, that's what you'll get, and whatever
else the rules are." He then directed Bunker to return to
work as he already had had his break for that morning.
Both Higginbotham and Bunker gave substantially the
same testimony concerning their conversation. Bunker
admitted that Higginbotham specified' distribution of
cards in the plant during working hours. Bunker also ad-
mitted that in early August, and before he had engaged in
any union activity, his foreman, George Wheatly, had
told him that he was being restricted to two 10-minute
breaks a day, and that this was the reason why he became
active on behalf of the Union.
Higginbotham testified that he made the same state-
ment to Irwin as he made to Bunker concerning distribu-
tion of cards, but that he did not recall if he specified
"work time." He testified, in substance, that he "as-
sumed" that Bunker was the one who gave the card to
Irwin because he believed Bunker had supported another
union during 1965. Higginbotham admitted that the
Respondent did not have any written rule covering so-
licitation or distribution of cards. He testified, "We just
never have allowed it."
I do not believe or find that Higginbotham's statements
to Irwin and Bunker were violative of the Act. Higgin-
botham had reliable information that Irwin had dis-
tributed a union card in the plant during working time.
After his conversation with Irwin, he suspected that
Bunker also was involved. In effect he warned both Irwin
and Bunker that distribution of cards in the plant during
working time was against the Respondent's policy. Under
the circumstances I do not find that he was attempting to
create the impression of surveillance of their union activi-
ties as charged in the complaint. The General Counsel
also contends that Higginbotham's statement concerning
breaks constituted an illegal threat of reprisal. In view of
Bunker's admission that the policy on breaks had been
changed before the employees had engaged in any union
activity, I do not so find.
Edwards was scheduled to work on August 12 from 3
to 11 p.m. He received permission from his foreman, Bob
Wendisch, to have employee Edward Morrow substitute
for him for the last 4 hours of the shift. About 2:30 p.m.
on August 12 Edwards called Bunker and asked him to
take the first part of the shift. Bunker agreed. About 2:45
p.m. Bunker told Wendisch that Edwards had called and
asked him to substitute for him for the first 4 hours, Wen-
disch agreed to the arrangement. About 3:30 p.m., while
2 Higginbotham testified to the above conversation. Irwin did not ap-
pear as a witness at the hearing.
ARKANSAS GRAIN CORPORATION 115
Bunker was working, McDonald called over the intercom
and asked for Edwards. Bunker told him that Edwards
had asked him to substitute for him, and that he had
agreed. McDonald stated that Edwards had not "got it
okayed through the office" and that that was the way that
the employees were supposed to get permission to make
substitutions.3 Bunker replied that he had notified Wen-
disch before 3 p.m. of the change and that Wendisch had
told him that it was "all right." About an hour later Mc-
Donald went to Bunker's place of work. He told Bunker
that he and Edwards might lose their jobs for not getting
permission for the substitution through the office.
McDonald again came to Bunker's place of work dur-
ing the morning of August 13. He stated that Edwards
had "lost his job"4 and that it was "sort of pending" that
he (Bunker) might also lose his. Bunker replied that he did
not understand why he should be discharged "for working
over for the boy," and stated, "I wasn't allowed to leave
the job -until I was satisfactorily relieved, in the first
place." McDonald then took a union card from his pocket
and said, "Anyway, he's lost his job and this could very
well lose a lot of other people's jobs .... I don't see
what's the reason you boys want a union in here, and we
aren't going to sign a contract. There's a million ways we
can get around signing a contract, being as small organiza-
tion as it is .... I think that you boys have a good situa-
tion here now. "5
It is clear from McDonald's remarks that he was
threatening Bunker and other employees with discharge
because of their union activities. Such conduct is found
to be violative of Section 8(a)(1) of the Act.
Edward Cain, a new employee, was being trained as an
extractor operator by Jerry Greene. They worked
together on the same shift. On or about November 10
during the first shift, Foreman Stephen Ragsdale had
trouble with the strainer on the "miscella line." In order
to correct the condition, Ragsdale told Cain to remove
the strainer. He neglected to tell Cain to replace it before
their shift changed. Morrow was the extractor operator
on the next shift and he was followed by Edwards. The
following morning it was discovered that the strainer was
missing from the line. Since Edwards had been the last
operator before the discovery, McDonald presumed that
he was responsible and made a notation to this effect in
the logbook. When Edwards relieved Morrow that day,
Morrow told him that Ragsdale had directed Cain to
remove the strainer. Edwards told Wendisch that he had
not left out the strainer and that the notation in the log-
book should be corrected. Wendisch said that McDonald
had spoken to him about the strainer and that he had told
McDonald that he (Wendisch) did not know whether or
not he (Edwards) was the one who had removed it. Ed-
wards then wrote in the logbook above McDonald's nota-
tion, "Investigation before accusation, please."
On November 13 Edwards was called to McDonald's
office. Wendisch was present. Concerning his converses
tion with McDonald, Edwards testified without con-
tradiction as follows:
Mr. McDonald said that what I had wrote on the
chart showed disrespect to management. I told him
I didn't mean it for disrespect. I merely meant for
him to investigate before accusing me of doing
something. Of course, we disagreed on it. He said it
showed disrespect.
. He said this was my second warning and I asked
him what the first was, and he said it was for taking
a day off prior to vacation without permission from
the office. I told him I had permission for the last half
of the shift, and he said, "Well, for half a day, then.
. One more [warning] and you're gone."
Edwards also testified that McDonald asked him whether
or not he had checked the strainer when he first came on
the shift.
McDonald testified to the effect that he gave Edwards
a warning because of the strainer, telling him that he knew
that he had not left it out but that it still was his job to see
that there was one in the line. He also testified to the ef-
fect that during the conversation he warned Edwards for
the first time about his arranging for a substitute on Au-
gust 12.
I do not find that the above conduct of McDonald was
violative of the Act. McDonald testified that about
February 1966 he had posted a notice on the bulletin
board in which he stated that "strainers were to be kept
in that line all the time," and that after the incident on
November 11 he also warned both Ragsdale and Mor-
row 6 It appears from the testimony of Edwards himself
that he was called to the office because of his note on the
logbook, and that the warning about checking the strainer
was incidental thereto. It follows that Edwards was not
singled out in a special manner for a warning about
checking the strainer. Accordingly, I do not believe or
find that the Respondent was harassing Edwards by issu-
ing reprimands to him because of his union activity, as al-
leged in the complaint.
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 Respon-
dent's operations described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, 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
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it will be recommended that it
S The undisputed evidence shows that it had been the Respondent's pol-
icy for its supervisors, and not the employees involved, to make arrange-
ments for substitutes when they wanted time off from work. Higgin-
botham testified to the effect that the Respondent had this policy in order
to avoid overtime work.
4 The evidence discloses that Edwards was off on vacation at the time
of the above conversation and that he was not discharged when he
returned to work
5 Bunker testified to the above conversations. McDonald denied saying
that Edwards had lost his job and showing a union card to Bunker. He
testified that he told Bunker that Edwards could lose his job, and admitted
that, at the time of the conversation , he had in his possession the union
card which he had obtained from Warhurst. He testified that he discussed
the Union with Bunker , telling him that he did not have "any faith" in
union negotiators , and that the Respondent had done more for him
(Bunker) "than any Union had been able to do prior to that time." I credit
the above testimony of Bunker.
6 Morrow admitted that the notice about strainers had been posted for
about a year and that on November 11 or 12 McDonald talked to him
about checking the strainer.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cease and desist therefrom and that it take certain affir-
mative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section
7 of the Act, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]