Bill Kraft's Restaurant Food Products Co.

National Labor Relations Board - Board Decisions

Apr 20, 1979

241 N.L.R.B. 1027 (N.L.R.B. 1979)

BILL KRAFT'S RESTAURANT FOOD PRODUCTS
Bill Kraft's Restaurant Food Products Company and
General Truck Drivers, Chauffeurs, Warehousemen
and Helpers Local Union 957, Affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America and
Karl A. Rappold. Cases 9 CA 11827 and 9-CA
I 1987
April 20, 1979
DEC(ISION AND ORDER
BY MEMBIERS PI;NIt1.0, MURPHY AND TRUtESI)AI.I
On December 7, 1978, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter the General Counsel filed
exceptions and a supporting brief: and Respondent
filed an answering brief to the General Counsel's ex-
ceptions.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent, Bill Kraft's Restaurant Food
Products Company, Dayton, Ohio. its officers, agents.
successors, and assigns, shall take the action set forth
in the said recommended Order. except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
II IS I-UR II1R ()RI)EREDI) that the allegations that
Respondent unlawfully discharged William Schuler
and Karl Rappold. and that President Kraft threat-
ened to close the plant, be, and they hereby are, dis-
missed.
i I he (encral Counsel has excepted o certain credihililt findings made bh
the Adminlstratlse I.;as Judge It is he Board's estabhlished plc) not to
overrule an Administrative .aw Judge's resolutions with respect to credlhil-
it) inless the clear preponderance of all of the relesvanl eidence consinces
us that the resolutions are incorrect. Standarurd D 14'all Prod.ur. In., 91
NLRB 544 (1950). enfd 188 F.2d 362. (3d ir 1951). We hase caretulls
examined he record and find no hasis for reversing his findings
APPENDIX
Nor (E. To EPLOYEIS
POSIDI) BY ORI)DR ()I ril
NA I ()NAI. LABO()R REI.AIO()NS BOARD
An Agency of the United States Government
After a hearing, the National Labor Relations Board
has found that we interfered with the rights of em-
ployees to engage in union and concerted activities
guaranteed in Section 7 of the National Labor Rela-
tions Act. as amended, and thereby committed viola-
tions of Section 8(a)(I) of the Act. The Board has
ordered us to cease and desist from such conduct and
to post this notice in order to remedy the effects of
such unfair labor practices. In compliance with the
order of the Board we therefore notify you that:
\Vi WI] NOI tell employees that we know
who signed union cards that employees will be
fired for signing union cards, that union organi-
zation is a waste of time and will get employees
fired, that if a union comes in we will close the
plant and stop tardiness and absenteeism; ques-
tion employees as to how they feel about unions
or what they know about them: and give em-
ployees the impression that we are trying to spy
on or learn about employees' union activities.
WE VII.I. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of any rights guaranteed by Section
7 of the National Labor Relations Act.
Our employees are free to join, assist, or support
any union, or not to, at their option.
Bii.I. KRAFI's RISIAtRANI- FOOl) PR()I)T(I
CO(MIPANY
DECISION
SIAI1MINI OI 1111 (ASF
CtARI i-S W. S( HNll)tIR. Administrative Law Judge: On
October 17. 1977.1 General Truck Drivers, Chaufleurs.
Warehousemen and Helpers Local LUnion 957. affiliated
with the International Brotherhood of Teamsters, Chauf-
feurs. Warehousemen and H-elpers of America (herein
called the Teamsters). filed an unfair labor practice charge
in Case 9 CA 11827 against Bill Kraf's Restaurant Food
Products (Company (herein called Respondent). pursuant to
the National Labor Relations Act. 29 U.S.('. §151. rt .seq.
On December 2 Karl A. Rappold filed an unfair labor prac-
tice charge against Respondent in Case 9 CA 11987. On
December 15 the Regional Director for the Region 9 (Cin-
cinnati. Ohio) issued a complaint and notice of hearing in
Case 9 ('A 11827. and on December 30 Respondent filed
an answer to that complaint, den)ing the commission of
unfair labor practices. On January 24. 1978X. the Regional
I All dates are in 1977. unless olherm ise specified
241 NL.RB No. 162
1027
I)E('ISIONS OF NATIONAL LABOR RELATIONS BOARD
Director issued a complaint and notice of hearing in Case
9 CA 11987. along with an Order consolidating the cases
for hearing. On February 2, 1978, Respondent filed an an-
swer in Case 9-CA 11987, denying the commission of un-
fair labor practices.
Pursuant to notice, a hearing was held before me on
March 21. 1978. in Dayton, Ohio. All parties appeared at
the hearing and were afforded full opportunity to partici-
pate, to introduce and to meet material evidence, and to
engage in oral argument. During the course of the hearing
the complaint was amended, upon motion of the General
Counsel and over the objection of Respondent. to allege
additional violations of Section 8(a)(1) of the Act. On April
24. 1978. briefs were filed by the G(eneral Counsel and Re-
spondent.
On the entire record in the case, including my observa-
tion of the witnesses and their demeanor, and after due
consideration of the briefs, I make the following:
FINDINGS OF FACT
1. filE BUSINESS OF TIlE COMPANY
Bill Kraft's Restaurant Food Products Company, an
Ohio corporation, is engaged in the warehousing and distri-
bution of food products and restaurant supplies at and from
its Dayton. Ohio, facility. During the past 12 months, a
representative period, Respondent purchased and received
goods and materials valued in excess of $50,000 which were
shipped to its Dayton. Ohio, facility directly from points
outside the State of Ohio. At all times material herein, Re-
spondent is and has been an employer within the meaning
of Section 2(2) of the Act engaged in commerce and in
operations affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE I.ABOR ORGANIZATION
General Truck Drivers, Chauffeurs. Warehousemen and
Helpers Local Union, 957, affiliated with the International
Brotherhood of Teamsters, Chauffeurs. Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
lIt. HE UNFAIR ABOR PRACTICES
The Issues
The issues are whether the Respondent discharged em-
ployees William Schuler and Karl Rappold because of their
union activity or sympathies and engaged in various unlaw-
ful acts of interrogation and threats regarding employees'
union activity and created the impression of surveillance of
such activity.
The Facts
A. Respondert's Business
Respondent warehouses and distributes food products to
the approximately Ill restaurants in southern Ohio of the
nationwide chain of McDonald's System, Inc.. fast-food
restaurants. Respondent is the exclusive source of food for
such restaurants. McDonald's is Respondent's only cus-
tomer. The testimony of William R. Kraft, president of Re-
spondent. is that Respondent has no contract with McDon-
ald's.
At the time of the events involved, Respondent employed
approximately 20 persons. 13 of whom were warehousemen
and truckdrivers and the remainder, office and clerical em-
ployees.
B. The Organization of the Teat.vlers
On September 26, pursuant to prior discussions among
employees of Respondent. Green Berry Roberts. at that
time a warehouseman employed by Respondent, and who
described himself as the "instigator" of the Union, secured
a number of union authorization cards and some union lit-
erature from the office of the Teamsters. On the following
day, September 27, Roberts brought the cards and litera-
ture to Respondent's plant and left them at the workplace
of employee Karl Rappold, Respondent's automobile me-
chanic. pursuant to prior agreement. Roberts signed one of
the cards himself and left it at Rappold's workplace in plain
view.
On the same day. September 27. Respondent received a
telegram from the Teamsters filed at 9:03 a.m., advising
Respondent that the Teamsters represented the majority of
Respondent's truckdrivers and warehouseman and that it
had petitioned the National Labor Relations Board for a
certification of representation. The telegram further re-
quested Respondent not to take any disciplinary action
without first contacting the Teamsters' director of organiz-
ing, Dick Loy. President Kraft's testimony is that when he
received that telegram, he was "shocked."
On September 27 and the next day, September 28, Karl
Rappold distributed the cards left by Roberts. A number of
employees signed cards, which Rappold gave to Roberts,
who in turn transmitted them to the Teamsters on what
date and at what time are not disclosed. Several days later
Rappold asked Respondent's foreman, Russell Lear.
whether Respondent had received a telegram from the
Teamsters. Lear replied that he did not know.
On September 29 the Teamsters filed a petition for repre-
sentation with the Regional Director.
About 2 days after Green Berry Roberts left the Team-
sters' literature on Karl Rappold's desk, Foreman Russell
Lear told Roberts that he (Lear) was going to quit. Roberts
asked why. Lear stated that President Kraft and Superin-
tendent Swartz were "jumping" on him about overtime and
about Lear not doing his job. Roberts urged L.ear not to
quit, stating that they were going to get the Union in. Lear
replied that he did not believe that the Union would go
through, but that if it did, it would "probably straighten the
place out."
A few days before October 5 Respondent posted on the
bulletin board in the plant a news item unfavorable to the
Teamsters taken from a local newspaper.
C. The October 5 Meeting
On October 5 Respondent held a meeting of warehouse-
men in the plant. President Kraft spoke for Respondent.
1028
HBl.l KRAI:T'S RESIAURANT FOOD PRODUCTS
Kraft told the men that he had receised a telegratm from
the re;amsters claiming to represent employees and that it
had shocked himn. because he thought he had been fair to
the employees. lie further said that his initial reaction was
to close the plant, but that upon reflection he had changed
his mind and decided that if the employees desired a union.
Respondent could live with one. However, Kraft went on to
tell the employees that joining a union could not guarantee
them anything. He then produced a copy of a current con-
tract between the Teamsters and a local concern. Mush and
Son, engaged in a business similar to that of Respondent.
Kraft quoted the wage rates in that contract and said that
some of Respondent's employees were making more than
required by the contract.'
President Kraft further told the employees that Respon-
dent was looking for new quarters and was in the process of
negotiating a lease for new trucks to replace the Respon-
dent's present fleet, which it owned. He asked if any em-
plovees had any questions. There was silence until Karl
Rappold stated that the employees were afraid to speak up
because of fear of loss of their jobs. Kraft replied that no
one should he afraid that no one would lose his job because
he spoke up. Rappold then said that there were not enough
raises and that Superintendent Swartz, Kraft's son-in-law.
caused dissension among employees. Schuler. a probation-
ary employee, asked if he would get a 25-cent-an-hour raise
upon completion of his probation and was told that he
would. Green Berry Roberts voiced a complaint about his
seniority and questioned the fairness of Respondent's treat-
ment of him in that regard. Roberts also referred to the
discharge of another employee. Smith. in the past and
asked President Kraft how he (Roberts) could avoid being
fired like Smith had been.
President Kraft gave replies to each question. As to Rob-
erts' final query, Kraft said that Smith had been fired for
damaging merchandise and further stated that as long as an
employee did his job, he would not be fired. As to Roberts'
seniority. Kraft said that apparently there had been some
misunderstanding as to what Roberts' status would be.
since Roberts' had previously worked for the Respondent
and had been rehired.
President Kraft told the employees that there would be
an election to decide whether the Teamsters should be the
bargaining representative. He indicated that Respondent
was opposed to the Teamsters. which he characterized as a
bad union associated with embezzlement and killings. How-
ever, he also said that each employee should vote in accord-
ance with his individual judgment. adding that he could not
and would not tell them how to vote. Finally. President
Kraft said that Respondent would mail employees newspa-
per clippings relating to conduct or alleged conduct by the
Teamsters. and the meeting ended.
2 The Genelal Counsel contends that Kraft's statement that some of Re-
spondent's employees were making more than the wage rate in the Mush
contract was untrue. for the reason that the Respondent's warehousemen
were being paid $4.50 per hour. whereas the starting rate lir Mush ware-
housemen under the contract was $4 80 Il.wever. Krafi's comparison in-
cluded, inter alia, profit sharing and a uniform allowance for Respondent,
drivers The record does not disclose that Mush emplosees had similar hene-
tits
D. The Newspaper Clippings
Following the October 5 meeting. Respondent sent a suc-
cession of mailings, apparently about four in number, to
employees, each containing copies of newspaper stories in
which the Teamsters Union. the International, its locals, or
local officers had been charged with criminal offenses. vio-
lence. corruption. or undemocratic practices. The mailings,
which were separated by intervals of about I week each,
were each accompanied by a written statement from Re-
spondent to the effect that the employees should consider
whether they wished to entrust their future to such an or-
ganization. Respondent's literature also suggested that the
Teamsters could subject employees to lengthy strikes, with
subsequent loss of wages. company benefits, unemployment
compensation. and permanent replacement in their jobs. In
addition. Respondent's literature argued that the benefits
enjoyed by Respondent's employees were comparable to
union benefits in the area and that individual advancement
on merit would be more possible without the Teamsters.
E. lhe October 10 Meeting
Several days after the October 5 meeting, employee Karl
Rappold asked President Kraft for permission to hold a
meeting of warehousemen and drivers in the plant in order,
as Rappold described it, to determine whether or not the
employees wished to have the Teamsters. Kraft told Rap-
pold that it was all right so long as the meeting was not on
working hours. Notice of the meeting was posted on a
blackboard in the plant. and it was held about October 10.
No supervisors or company officials attended. The evidence
does not disclose specific happenings at the meeting.
F. The October 27 Meeting
On October 27 Respondent held another plant meeting
with the warehousemen. At this meeting Kraft informed the
employees that an election had been scheduled for Novem-
ber 10. He further told them that Respondent had no con-
tract with McDonald's and that if the Teamsters forced
Respondent's labor costs, and Respondent's charges to
McDonald's, too high. "McDonald's could walk away from
us and close the place up."'
On November 29 the Regional Director conducted the
election on the Teamsters' petition. Eleven ballots were
cast. three for the Teamsters, seven against, and one chal-
This finding is from the testimony of President Kraft. which accords with
that of General Counsel witness Green Berry Roberts, except in one respect.
Roberts' testimony was that President Kraft said that if the Union went
through and the Union's demands were so great that Kraft could not meet
them. "he would just close up and walk away from it." (Emphasis supplied.)
Roberts' recollection was not precise as to the meetings of October 5 and 27.
Thus he testified. contrary to all other witnesses. that Kraft did not say at the
October 5 meeting that he had changed his mind about closing the plant; nor
could he remember any reference by Kraft at that meeting to an election. As
to the October 27 meeting. Roberts initially could remember onl that Kraft
had said that an election had been set for November 10 and recalled the
reference to McDonald's only after having his recollection refreshed.
In le', of Roberts' imprecise recollection. the failure of any witness to
corroborate his testimony as to Krafi's statement at the October 27 meeting.
and the statements of Kraft at the October 5 meeting. I consider Kraft's
recollection as It what he said at the October 27 meeting more likel) to be
accur ate
1029
I).('CISIONS OF NAI-IONAL LABOR RELATIONS BOARD
lenge. On December 7 the Regional [)irector issued a certi-
fication to the effect that no bargaining representative had
been selected in the election. There is no indication that
objections were filed to the election.
G. Interfi'rence, Resraint, and C'oercion
1. B Foreman Lear
At the time of these events. Russell ear was a foreman
and a supervisor, for Respondent. Three former employees
of Respondent (Rappold. Schuler, and Greer) testified with-
out contradiction as to statements made to them in the
plant by Foreman Lear, which the General Counsel alleges
to be violative of Section 8(a)( I) of the Act. These are as
follows.
a.
Employee Charles Greer signed a Teamsters' card about
September 27, at the solicitation of Green Berry Roberts.
Two or three days later, Greer and Foreman Lear had a
conversation while both were resting after throwing stock.4
Lear asked Greer, who had formerly been in management,
how Greer felt about unions. Greer told Lear that there
were pros and cons. Greer added that a union would do
Lear no good. because Lear was in supervision and was
"still going to get the shit end of the stick, anyway." Lear
replied that that was true, adding. "that's what I got for 10
years." Lear went on to say that if he knew Bill Kraft. he
doubted very much if the Union would go through. that it
was a waste of time and would "wind up getting everybody
fired." Foreman Lear further said that "they" knew every
name that was on a pledge card and that each of them
would be fired for signing, but on some other pretext.
b.
About October 2 Foreman Lear and employee Karl Rap-
pold talked about the Union over coffee in the shipping
office. I.ear said that he did not really care about the Union
because he was going to leave, but that he did not think
that the Union would go through. adding that Kraft would
"close the place down probably if the union did get in."
Foreman ear also said that if the Union got in. tardiness
and absenteeism would come to a stop. l.ear asked Rappold
if Rappold was going to vote for the Union and Rappold
responded in the affirmative. In this coversation Lear also
told Rappold that Schuler was lazy.
c.
On September 27 Schuler signed a Teamsters' card at
Rappold's desk. About a week later Foreman l.ear asked
Schuler what Schuler knew about the Union. Schuler re-
plied that he was for it.
4'1ransferring stock by hand rom vehicle or conveyor to a truck or
localion in the warehouse. or ice ersa.
2. President Kraft
In addition to those incidents involving Foreman Lear,
the General Counsel also contends that at the October 5
and 27 meetings of employees President Kraft threatened to
close the plant if the employees selected the Teamsters as
their collective-bargaining representative.
Conclusions as to Interference. Restraint, and Coercion
a. As to Foreman Lear
The incidents involving Foreman Lear occurred before
the October 5 meeting at which President Kraft assured the
warehousemen that no one would be discharged because he
spoke up, or as long as he did his job.
Foreman Lear's statement to Charles Greer to the effect
that "they," which I interpret to mean Respondent's man-
agement, knew who had signed Teamsters' cards and that
such individuals would be fired for signing and that the
union organization was a waste of time and would get ev-
erybody fired, while not, in the circumstances, reliable evi-
dence as to what Respondent would in fact do, constituted
a threat, since it came from a responsible supervisor. Em-
ployee Greer was not in a position at the time to evaluate
the accuracy of Lear's judgment, and, in view of Lear's
relation to management.the inference was justified on the
then available evidence that Lear spoke from knowledge.
The same reasoning applies to Foreman Lear's statement to
Rappold to the effect that Kraft would close the place down
if' the Union came in and that tardiness and absenteeism
would stop, a statement which I interpret to mean that Re-
spondent would no longer continue to tolerate them. Pres-
ident Kraft's later assurances at the October 5 meeting were
not sufficient to expunge Lear's prior violations or to rem-
edy their effect. Slheet Metal fi3orkerv' International Associ-
ation l.ocal 17, R.I. area (Plastic Film Products Corp.), 238
NI.RB No. 22 (1978)} Internalional MafnuJacturing Cornm-
pany, nc., 238 NRB No. 190, sl. op.. pp. 5 10 (1978).
In that light, ear's accompanying query of Charles
Greer as to how Greer felt about unions acquired a coercive
cast. Against such a background Lear's inquiries of Schuler
as to what Schuler knew about the Union and of Rappold
as to whether Rappold was going to vote for the Union
were also coercive. Foreman Lear's statement to Greer to
the effect that Respondent knew which employees had
signed Teamsters' cards conveyed the impression, though
there is no evidence of its correctness, that Respondent was
engaged in ascertaining the Union activities of employees.
It is found that by those various acts of Foreman Lear.
Respondent interfered with, restrained. and coerced em-
ployees in violation of' Section 8(a)( I of the Act, regardless
of whether L.ear's expressions reflected the views or intent
of Respondent. Southern Stevedoring Company', Inc., 230
NLRB 609, 615 ( 1977); Porta-Kanmp lanu/icluring Com-
pan'v, Inc., 186 NI.RB 656. 658 (1970).'
Foreman I.ear left Respondent's employ January I. 1978. He did not
appear at the hearing. President Kraft's testimony is that since January I
Lear has been living in Pint Pleasant, West Virginia. at an address and a
phone number known to Respondent, and that Kraft undersitxd that a
subpena had been sent to Lear on an undisclosed date but had nt been
receied. President Kraft further estiied that he telephoned L.ear about a
1030
BILL KRAFT'S RESTAURANT FOOD PRODUCTS
b. As to President Kraft
There is no evidence that President Kraft told employees
at the October 5 meeting that he would close the plant if the
Union came. Kraft's credited testimony is that he made no
such statement at the October 27 meeting, and the state-
ment that he admittedly made was not a declaration as to
what Respondent would or could do. The General Coun-
sel's contention that Kraft threatened to close the plant if
the Union came in is found not supported by' the evidence.
The Discharges
1. Michael Schuler
Schuler was hired on September 12 as a warehouseman.
Under Respondent's practice, new employees serve a pro-
bationary period of 30 days, at which time Respondent
makes a determination whether to continue them on. Schu-
ler was discharged by Foreman Lear on October 14, at the
end of his probationary period, according to the General
Counsel because of his membership in, sympathy for, or
activities on behalf of the Teamsters and according to Re-
spondent because he avoided work and engaged in exces-
sive conversations with other employees.
At the time of his discharge, Schuler was given, and he
read, a written statement dated October 13. signed by Fore-
man Lear, stating the following:
Probationary period for this employee expires on this
date and the following evaluation has been compiled.
In general, the employee displays a tendency to
avoid those duties which he deems undesirable.
Employee spends an unnecessary amount of time
engaged in and engaging other employees in conversa-
tion.
Overall this employee has displayed unsatisfactory
work habits and therefore the company is declining to
elevate him to regular employee status. Employment is
terminated this date.
Though Schuler testified that the accusations noted in the
discharge notice were not true, and he declined to sign it, he
did not at that time contradict the assertions or protest
them as bases for his discharge, assertedly because he did
not wish to start an argument.
Respondent's evidence as to Schuler's performance is
principally that of Superintendent Swartz and other em-
ployees, as well as statements and actions attributed to
Foreman Lear. As we have seen. Lear did not testify.
In general, talking while working was permitted employ-
ees, and there is no substantial evidence that Schuler talked
any more than any other employee.
Superintendent Swartz testified that he personally super-
week prior to the hearing and that no one answered the telephone, but that
3 days before the hearing he telephoned again, spoke to L.ears wife, and
asked her to have Lear call him, but that Lear did not respond
This evidence will not warrant a conclusion that Lear was unasailable as
a witness or that adequate efforts were made to secure his testimony or to
preserve it. I find nothing in the fact of Foreman Lear's absence from the
heanng which would tend to discredit or impair the testimony of Greer.
Schuler, or Rappold as to what Lear told them. I therefore credit their testi-
mony as to these incidents.
vised Schuler on two occasions and observed that Schuler
avoided jobs requiring back labor and was "prone" to rid-
ing trucks or fbrklifts. The warehouseman's job consists of
moving material from an incoming truck to the freezer or
other warehouse location and from the warehouse to an
outgoing truck. Incoming, the goods are transferred from
the truck by hand to a pallet or to a conveyor belt and
transported either by the belt or by a forklift to the ware-
house, where they are transferred by hand to the appropri-
ate space. On outgoing goods the process is reversed. The
handwork, known as throwing stock, is more strenuous
than operating the forklift and is supposed to be rotated
among the crew. Respondent's evidence is that Schuler
avoided throwing stock and maneuvered so as to operate
the lift or moved trucks into or out of the loading dock,
which was not his function.
Though Schuler did not protest the statements in the dis-
charge notice. he testified in contradiction of them. Fellow
employees Green Berry Roberts. Karl Rappold. and
Charles Greer testified that they had no problems with
Schuler and did not see him avoid jobs.
In contrast, two of Respondent's present employees testi-
fied in support of Respondent's position. With reference to
the testimony of Roberts and Greer respecting Schuler's
work, Superintendent Swartz testified that some time after
Schuler's hiring, as is the custom in the case of probationary
employees, Swartz asked Green Berry Roberts about Schu-
ler's performance. Swartz' testimony, denied by Roberts, is
that Roberts told him that Charles Greer had told Roberts
on one occasion that if Schuler did not get off the forklift.
he (Greer) was going to "knock . . . him off."6 Though
certain factors suggest that Swartz' account may be more
reliable, I find it unnecessary to decide that dispute.'
The fact is that there is other trustworthy evidence of
dissatisfaction with Schuler's work during his employment.
Thus, in his conversation with Karl Rappold on October 2.
Foreman Lear told Rappold that Schuler was lazy. Though
some of Lear's statements have been found to constitute
unfair labor practices, there is no basis for inferring that
Lear himself was anti-union or pro-Respondent. Indeed, his
comments to Roberts and to Greer (supra) seem to suggest
the contrary.
The evidence establishes, contary to Schuler's testimony,
that his performance was criticized. On one occasion Schu-
ler was detailed to help Rappold install a transmission in a
truck. When the job was finished, a half-hour or an hour
later, Schuler returned to his warehouse duties. He there-
after left that post and, without consulting Foreman Lear,
went back to Rappold and volunteered to help Rappold in
the installation of some crossmembers on the truck. When
Schuler returned to the warehouse, Lear and others were
stocking a truck. Lear greeted Schuler angrily, referred to
him as a "fat ass," in effect accused him of fucking off with
Rappold when Lear wanted him to load a truck, said that
6 Greer, in turn, denied making such a statement to Roberts.
If Roberts' denial is true. Swartz' fabrication (for it could not be other-
wise) seems unnecessarily awkward and cumbersome. If Swartz' testimony
as to the incident was concocted, as would seem to follow from acceptance of
Greer's testimony, it would seem likely that Swartz would have attributed
the threat to Roberts, instead of roundabout attribution to Greer, or, alterna-
tively, would hase claimed that his conversation was with Greer. and not
with Roberts
1031
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he (Lear) was Schuler's boss, not Rappold, and that it was
not Schuler's job to move trucks in and out of the dock.
Lear further accused Schuler of always trying to avoid
throwing stock.
As we have seen, Lear signed Schuler's discharge notice
and discharged him. Respondent's testimony is that Lear's
negative evaluation of Schuler was a substantial factor in
the decision to discharge him. Though there is no evidence
that Schuler was given a warning notice, the unimpeached
testimony of Superintendent Swartz is that probationary
employees are not ordinarily given warning notices.
It is found that the evidence establishes a basis for find-
ing that Respondent was dissatisfied with Schuler's work
performance to an extent warranting terminating him at the
end of his probation. Whether he was discharged for that
reason is discussed infra.
2. Karl Rappold
Until October 1977 Respondent owned eight trucks, six
of which were in regular use; the other two were spares. Up
to September 1976 Respondent had the maintenance and
repairs on the trucks done by independent servicemen. In
the year September 1975 to September 1976 Respondent
spent $62,000 in vehicle repairs. Considering this excessive,
Respondent decided to begin a program of doing its own
repairs in the hope of reducing maintenance costs. To that
end Respondent hired Rappold in September 1976, as an
auto mechanic. On hiring Rappold, President Kraft told
him of Respondent's purpose. Thereafter, Respondent pur-
chased capital equipment, such as a compressor, welding
equipment, tools, and parts for the repair work. In addition,
it upgraded its rolling stock by replacing six of its trucks
with newer ones.
However, the new arrangement did not reduce mainte-
nance costs. Therefore, in August 1977, the Respondent be-
gan to investigate the feasibility of substituting a leasing
system, with maintenance included, for its truck ownership
program. Bids were secured which indicated that leasing
would be cheaper than ownership. It has been seen that in
the October 5 meeting, President Kraft told the warehouse-
men that Respondent was negotiating a lease for new
trucks. In the later part of October a lease agreement was
signed for six vehicles, effective November 1. On October
27 Kraft notified Rappold that Respondent's repair pro-
gram had not proved out, that repair costs, rather than de-
crease, had increased by one-third (from $62,000 in the
1975-76 period to $96,000 in the comparable period 1976-
77). Kraft further told Rappold that leasing would be
cheaper, that he had contracted to lease truks beginning
November 1, and that Respondent therefore would no
longer need a mechanic. Kraft's testimony, denied by Rap-
pold, is that Kraft offered Rappold a job in the warehouse,
but that Rappold declined it, saying that he did not think
that he could work in the warehouse. There is no evidence
that Rappold asked Kraft for any job. Respondent owned a
wrench gun for which Rappold owned sockets. Rappold
not wanting to buy the gun, Respondent purchased the
sockets for $50, and Rappold was terminated, without evi-
dent rancor, on October 28.
The unimpeached testimony of President Kraft is that
since that date, leasing has proved more economical than
ownership.
It has been seen that Rappold was a leader in the union
activity, spoke up at the October 5 meeting, was questioned
by Foreman Lear as to his position on the Union, and dis-
cussed the matter with Lear.
Conclusions as to the Discharges
I conclude that the evidence does not establish that Schu-
ler and Rappold were illegally discharged.
Schuler's activities were confined to the signing of a
Teamsters' card. Though he asked at the October 5 meeting
whether he would received the customary pay increase on
completion of his probation, there is no basis for concluding
that Respondent took umbrage at that inquiry. Green Berry
Roberts, the "instigator" of the union and the man who
brought the Teamsters cards into the plant and secured the
signature of Charles Greer to a card and who definitely
stated a grievance regarding his seniority at the October 5
meeting, was not discharged. He remained at the plant until
he voluntarily quit. Nor was Charles Greer discharged, de-
spite the fact that Foreman Lear told Greer that Respon-
dent knew who had signed cards and that those who had
would be fired. Lear's conversation about October 2 with
Greer establishes that Lear considered Schuler to be lazy. It
has been seen that several days before Schuler's discharge,
Lear upbraided Schuler and accused him of avoiding hard
work. As a supervisor. Lear's conduct and knowledge are to
be attributed to Respondent (Montgomery Ward, Inc., 115
NLRB 645, 647 (1956), enfd. 242 F.2d 497, 501 (2d Cir.
1957)). However, there is no apparent ground on which to
attribute Lear's evaluation of Schuler to Schuler's union
sympathies or to antiunion animus on Lear's part.
I do not consider that Lear's statements concerning Re-
spondent's attitude toward employees' union activity,
though restrainful of employees, reliably reflect the Respon-
dent's attitude and intent. That Respondent was opposed to
unions, and particularly to the Teamsters, President Kraft
candidly admitted. Indeed, as we have seen, he voluntarily
stated to employees at the October 5 meeting that upon
receiving the communication from the Teamsters he consid-
ered closing the plant but that upon reflection had con-
cluded that if the employees wanted a union, Respondent
could work with one. Kraft assured employees that as long
as an employee did his job, he would not be fired. Those
statements do not appear to me to reflect the actions of an
employer prepared to discharge employees for their union
activity. Foreman Lear's inquiry of Schuler as to what
Schuler knew about the Union and Schuler's reply that he
would vote for it do not add any substantial evidence of
discriminatory motivation.
As to Rappold, the evidence discloses that his job was
established on an experimental basis and that the hoped-for
savings in truck maintenance did not ensue a conclusion
evident both from Respondent's uncontradicted testimony
and the documented fact that the inquiry into the substitu-
tion of a leasing system began prior to the beginning of
union activity. The testimony is likewise unimpeached that
the leasing system has proved to be more economical. And,
as has been seen, President Kraft's testimony, now credited,
1032
BILL KRAFT'S RESTAURANT FOOD PRODUCTS
is that he offered Rappold a job in the warehouse, which
Rappold declined.
In the light of these facts, it is concluded that the evi-
dence does not established that the discharge of either
Schuler or Rappold was a consequence of his union mem-
bership, sympathy, or concerted activity. It will therefore be
recommended that the allegations in this respect be dis-
missed.
CONCLUSIONS OF LAW
1. Respondent interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by Section 7
of the Act, thereby violating Section 8(a)( I) of the Act, by
the following conduct of Foreman Russell Lear: (a) state-
ments to employees to the effect that Respondent knew who
had signed union cards; that those who signed union cards
would be fired on pretexts, that union organization was a
waste of time and would get everybody fired, and that if the
Union came in Respondent would no longer tolerate tardi-
ness and absenteeism and would close the plant, (b) coer-
cively interrogating employees as to how they felt about, or
what they knew about, the Union; and (c) giving employees
the impression that Respondent was engaged in ascertain-
ing the union activities of employees.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2 (6) and (7) of the Act.
3. Respondent did not commit unfair labor practices by
the discharge of William Schuler and Karl Rappold, or by
any conduct of President William Kraft.
Upon the foregoing findings of fact and conclusions of
law, and the entire record in the case, and pursuant to Sec-
tion 10(c) of the Act, I issue the following recommended:
ORDER S
The Respondent, Bill Kraft's Restaurant Food Products
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
Company, Dayton, Ohio, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Telling employees that: Respondent knows who
signed union cards, employees will be fired for signing
union cards, union organization is a waste of time and will
get employees fired, and if a union comes in Respondent
will close the plant and stop tardiness and absenteeism.
(b) Questioning employees as to how they feel about
unions or what they know about them:
(c) Giving employees the impression that Respondent is
engaged in ascertaining employees' union activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at its premises copies of the attached notice
marked "Appendix."' Copies of said notice, on forms pro-
vided by the Regional Director for Region 9, after being
duly signed by an authorized representative of Respondent,
shall be posted by Respondent immediately upon receipt
thereof, and maintained by it for 60 consecutive days there-
after, 'n conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations that
Respondent unlawfully discharged William Schuler and
Karl Rappold and that President Kraft threatened to close
the plant are dismissed.
9 In the event this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1033