Byrne Dairy, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1969

176 N.L.R.B. 312 (N.L.R.B. 1969)

312 DECISIONS OF NATIONAL
Byrne Dairy , Inc. and Dairy & Bakery Salesmen &
Dairy Employees Union Local 316, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America.
Cases 3-CA-3450, 3-CA-3505, and 3-RC-4368
June 2, 1969
DECISION AND ORDER
MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 22, 1968, Trial Examiner Lloyd S.
Greenidge issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint, and recommended that such allegations
be dismissed. He also found, in Case 3-RC-4368,
that Respondent interfered with a Board election
held on May 9, 1968, and recommended that the
election be set aside. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases 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
entire record in these cases, including the Trial
Examiner's Decision, the exceptions and brief, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, as
modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that Respondent,
Byrne Dairy, Inc., Syracuse, New York, its officers,
The Respondent has requested oral argument The request is denied
The record , the exceptions and brief adequately present the issues and the
positions of the parties.
We do not adopt the Trial Examiner 's conclusion that Respondent
secretary C. Vincent Byrne 's remark that the Union was "remancing"
employees in a saloon and his later statement that employee Dowling had
been in "union processions" before created an impression of surveillance of
employees ' union activities . In our judgment , the statements are ambiguous
in nature , and in the context in which these remarks were made , it is not
reasonable to infer that they created the impression of surveillance in the
minds of the employees . Accordingly , we find no Section 8 (a)(1) violations
with respect to these statements
176 NLRB No. 40
LABOR RELATIONS BOARD
agents , successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified:
1. Substitute the following for paragraph 1(a) of
the Trial Examiner's Recommended Order:
"(a) Interfering with, restraining, or coercing its
employees in the exercise of their statutory rights
within the meaning of Section 8(a)(1) of the Act, by
interrogating them about union matters, soliciting
information from them as to how the Union may be
defeated, threatening them with discharge, plant
closure , loss of paid lunch period, scholarship fund,
or retirement benefit in the event they became or
remained members of the Union, and making
implied promises of general benefit if they refrained
from becoming or remaining members of the
Union."
2. Substitute the following for the first indented
paragraph of the Notice to the Trial Examiner's
Decision:
WE WILL NOT question you about your union
activities ; solicit information from you as to how Dairy
& Bakery Salesmen & Dairy Employees Union Local
316, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, herein at times called the Union, may be
defeated; threaten you with discharge, plant closure,
loss of paid lunch period, scholarship fund, or
retirement benefit in the event you become or remain
members of the Union, and make implied promises of
general benefit if you refrain from becoming or
remaining members of the Union.
IT IS HEREBY FURTHER ORDERED that the complaint be,
and it hereby is, dismissed , insofar as it alleges unfair
labor practices other than those found herein by the
Board.
IT IS ALSO FURTHER ORDERED that the petition for
certification of representative filed in Case 3-RC-4368 be,
and it hereby is, dismissed , and that all prior proceedings
held thereunder be, and they hereby are, vacated.
MEMBER ZAGORIA, dissenting in part:
I join my colleagues in finding that Respondent
interrogated employee Haas, in violation of Section
8(a)(1). The only other unfair labor practices found
by the Trial Examiner, to support his conclusion of
a Section 8(a)(5) violation, concern the Employer's
February 20 speech. In that speech, according to
testimony credited by the Trial Examiner,
Respondent:
(a) Asked the employees whether they had ever
worked under union conditions, and told them if
they signed up for something "your signature is
forever."
(b) Reminded the men that they then received a
half hour paid lunch period each day, stating "if the
union got in , we would have to work 2 1/2 hours
more per week." As another employee, who was
credited, recalled, Respondent said "in a union
company, you get a half hour and it's not paid for,
where they gave us the lunch hour and paid us for
it."
BYRNE DAIRY, INC.
(c) Reviewed the Company's current educational
plan, stating "that under a union contract only high
scorers receive scholarship payments."
(d) Stated that Byrne Dairy employees may stay
on at age 65 but when a man reaches that age,
under a union contract, "out the door you would
go.
(e) Remarked that others "promise a land of
love," but "we . keep the place running."
Respondent then said "you know what happened to
Fairbanks," and handed employees an article
showing that Fairbanks Dairy was held by a Trial
Examiner of the Board to have terminated one
aspect of its operations unilaterally, in violation of
Section 8(a)(5). Respondent stated "the Union was
representing these people and . . . they were no
longer in business."
(f) Finally, Byrne said "you can move ahead
faster here, stay on our team, it will pay in the long
run."
I do not agree that the above-quoted remarks
constitute violations of the Act. They were rather, in
my opinion, legitimate efforts by Respondent to
compare current employee benefits with what it said
were the benefits under union contracts, and there is
no allegation or showing that these representations
were inaccurate. Under the circumstances, I would
hold them to have constituted legitimate campaign
propaganda.' Respondent's statement about the
permanence of the employees' commitment to the
Union was similar to another recently found
nonobjectionable by the Board.' The reference to
Fairbanks I would not find coercive either, since
there was no indication it was the selection of the
Union which caused Fairbanks to close. Indeed, the
article shown to employees specifically indicated the
only malfeasance by Fairbanks was, as found by the
Trial Examiner there, its refusal to bargain about a
conversion to lease arrangements with its drivers.
Lastly, Respondent ' s remarks urging employees to
"stay on our team, it will pay in the long run" seem
to me ambiguous. Thus, I cannot find that
Respondent engaged in conduct sufficiently serious
to warrant setting aside the election, or to justify a
bargaining order. I would, therefore, certify the
results of the election , and issue a cease-and-desist
order covering only the Respondent's conduct with
respect to Haas.
'See, e.g., The Orchard Corporation ofAmerlca , 170 NLRB No 141.
'Northlake Convalescent Hospital. 173 NLRB No. 149.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LLOYD S. GREENIDGE, Trial Examiner: This
consolidated proceeding stems from the efforts of Dairy &
Bakery Salesmen & Dairy Employees Union Local 316,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, herein
called the Union, to organize the employees of Byrne
313
Dairy, Inc., herein called the Respondent and at times the
Company. On March 6, 1968,' the Union filed an unfair
labor practice charge in Case 3-CA-3450 and, on May 20,
a complaint issued in that proceeding alleging the
commission of unfair labor practices by the Respondent in
violation of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended (61 Stat. 136), herein called
the Act. On May 15, the Union filed an unfair labor
practice charge in Case 3-CA-3505 and, on June 21, a
complaint issued in that proceeding alleging the
commission of unfair labor practices by the Respondent in
violation of Section 8(a)(1) and (5)1 of the Act. In Case
3-RC-4368, the Union filed a petition for certification on
February 19. A hearing was held on the petition on
March 14 and 20 followed by the Regional Director's
Decision and Direction of Election dated April 22. An
election was held on May 9 and the Union lost.'
Thereafter, the Union filed objections to conduct affecting
the results of the election. On June 20, the Regional
Director found that the objections raised issues which
could best be resolved by a hearing and directed such a
hearing. By order dated June 21, the Regional Director
consolidated Cases 3-CA-3450, 3-CA-3505, and
3-RC-4368, for the purposes of hearing, rulings, and
decision by a Trial Examiner.
Pursuant to due notice, a consolidated hearing was held
before me at Syracuse, New York, on August 27, 28, and
29. All parties were represented and participated fully in
the hearing. During the hearing, the complaint and answer
in Case 3-CA-3450 were amended. At the conclusion of
the hearing, the parties were granted leave to file briefs
and briefs were received from the Respondent and the
General Counsel.
The issues presented are (1) whether the Respondent
interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed them in Section 7 of the
Act in violation of Section 8(a)(1) of the Act; (2) whether
Respondent discriminatorily laid off an employee in
violation of Section 8(a)(3) of the Act; (3) whether the
Union represented a majority of Respondent's employees
in an appropriate unit at the time it requested bargaining;
(4) whether the Respondent's refusal to bargain with the
Union violated Section 8(a)(5) of the Act; and (5) whether
Respondent engaged in conduct which warrants setting
aside the election.
Upon the entire record in these consolidated cases, and
from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent , a New York corporation , is engaged at
Syracuse , New York, in the bottling , sale, and distribution
of milk and related products . During the past year,
' Unless otherwise notes, all dates herein refer to the year 1968
'At the opening of the hearing, the Union moved to correct the charge in
Case 3-CA-3505 by striking the numerical designation (3) appearing in
paragraph (h) thereof for the reason that the designation was surplusage as
the body of the charge in that case speaks only of the alleged 8(a)(5)
violation and the alleged discrimination is adequately covered by the earlier
charge in Case 3-CA-3450. The motion was granted without objection
from the General Counsel.
'The tally of ballots showed that of 19 valid votes counted , 6 votes were
cast for the Union , 13 votes were cast against the Union , and I was
challenged.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent , in the course and conduct of its business,
sold and distributed products valued in excess of $500,000.
During the same period , it received shipments of goods
valued in excess of $50,000 directly from sources outside
the State.
The complaint alleges , the answer admits, and I find
that the Respondent is, and has been at all times material,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that it will effectuate the policies of
the statute to assert jurisdiction herein . I also find, on the
basis of the record in this proceeding , that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
11. THE UNFAIR LABOR PRACTICES
A. Introduction
For many years , the Union has made several abortive
attempts to organize Respondent 's employees . In 1960, it
filed a representation petition but withdrew the same in
July of that year . (Case 3- RC-2384.) The Union's most
recent effort in this regard began on February 7 and
became known to Respondent at least by February 15.
Under the direction and guidance of James Parry, vice
president and assistant business agent, the Union met with
the employees and endeavored to obtain employee
signatures on membership applications.
As particularized in more detail below , the Union
signed up the first employee on February 7. Most of the
events with which we are here concerned occurred between
that date and the date of the election , which, as noted,
took place on May 9 . During this period, Respondent
employed about 20 to 23 rank - and-file employees. The
treasurer and plant manager of Respondent is William
Byrne , the secretary and sales manager is Vincent Byrne,
and the plant foreman is Thomas Reilly . Respondent
concedes and I find that , at all times material herein,
William Byrne , Vincent Byrne , and Thomas Reilly have
been and are agents of the Respondent acting in its behalf
within the meaning of Section 2(13) of the Act and
supervisors within the meaning of Section 2(11) of the
Act.
B. Interference , Restraint , and Coercion
The complaint alleges , in substance, that on February
20, Respondent , by Vincent Byrne, threatened its
employees with discharge, plant closure , and loss of paid
lunch hour and scholarship fund if they became or
remained members of the Union , and made implied
promises of general benefit to them if they refrained from
becoming or remaining members of the Union . It is also
alleged that on the said date and on February 21,
Respondent , by William Byrne and Vincent Byrne, kept
under surveillance , and/or gave the impression that it was
keeping under surveillance , the union activities of its
employees, interrogated the employees as to their union
membership , activities, and desires , and those of their
fellow employees , and solicited information from them as
to how the Union could be defeated . The answer denies
these allegations.
1. The speech of February 20
On Monday , February 19, Vincent Byrne heard a
rumor that certain employees were going to lose their jobs
because they had joined the Union the previous Saturday
and that others were concerned that, in such an event,
there would be no one available to load their trucks. On
the basis of this rumor, Byrne concluded there was unrest
in the plant and that affirmative action was required to
allay the fears and anxieties of employees thus aroused.
The following day, Byrne decided to call a meeting of all
plant employees to assure them their jobs were secure and
to inform them of the Company ' s benefits . The meeting
was held in the afternoon of February 20 on company
time and property and lasted from 30 to 45 minutes
during which free coffee and doughnuts were served. In
the recent past , business conditions had been mentioned at
gatherings of plant and sales employees during the
Christmas season and on social occasions , but it appears
that the meeting of February 20 was the first time in
several years that job security and employee benefits were
discussed at a meeting of plant employees . Vincent Byrne
testified that he had not attempted to "educate" the
employees about the "facts" until after the Union became
active but attributes the delay to a critical labor shortage
in the Syracuse area in the fall of 1967.
William Byrne opened the meeting by stating, among
things , that there was a "trouble maker" in the crowd.'
This said , William Byrne turned the meeting over to
Vincent Byrne.
Vincent Byrne 's speech was delivered from handwritten
notes, in evidence, prepared by him in advance of the
meeting . Byrne acknowledged that the notes are not a
verbatim record of the speech and that several of his
remarks and statements do not appear therein. With the
limitations of the notes in mind, I move to a consideration
of the speech to the extent pertinent to this inquiry.
At the outset , Byrne told the employees that he had
been misquoted in the past , and that any employee who
felt he could not hold in strict confidence what was said
during the meeting was free to leave without fear of
reprisal . Byrne then declared that there was unrest in the
plant because the employees did not have the "facts" and
proceeded to give them the facts as he saw them.
Byrne asked the men if they ever worked for a union.
He told them that to get a job in a union they would have
to rent a truck and procure their own license ; that a union
in the area owns the jobs and a man stands in the street
and issues work assignments as jobs come in. He
reminded the employees that they had acquired their
training and skills at the Company 's expense . Byrne asked
the employees if they wanted to work for a company that
deals with facts or for a stranger ' who makes promises
but deviates from the truth ; cautioned them to beware of
a stranger; and told them if they signed up for something,
.,your signature is forever ." At this point , Byrne held up a
union authorization form . Byrne went on to say that some
men were being romanced in a saloon and accused the
Union of forcing its will upon them . According to the
credited and uncontroverted testimony of Walker, Byrne
told the group that the Union would buy them beer to get
them to sign up.
This finding is based on the mutually corroborative testimony of
employees Walker, Dowling , and Rogers which I credit over the denials of
Vincent Byrne and employee Pistello that the term troublemaker was used.
Pistello 's version of William Byrne's statement did not differ materially
from that of the credited testimony. According to Pistello, Byrne said,".. .
there was somebody trying to arouse everybody, get everybody wound up
about something."
'As used here, the word meant union and employees without facts.
BYRNE DAIRY, INC.
With regard to company benefits , Byrne first reminded
the men that the lunch period was free time to be used as
they saw fit , then displayed five signs with the number and
word " 1/2 hour" written on each . Employee Walker
credibly testified Byrne told the men that they were "paid
for a full half hour at Byrne ' s but if the union got in, we
would have to work 2-1 /2 hours more per week ." Dowling
6 and Haas corroborated Walker .' Haas recalled Byrne
told the employees that "in a union company , you get a
half hour and it's not paid for, where they gave us the
lunch hour and paid us for it."
Byrne also discussed the educational plan stating that,
under the company ' s program , children of all employees
receive $500 per year for 4 years on a noncompetitive
basis . However , Dowling credibly testified Byrne also said
that under a union contract only high scorers receive
scholarship payments.
At some point during the meeting , Byrne discussed
automation and the older employees . He stated that even
though the Byrne plant was more automated than those of
its competitors , it was the Company ' s policy to retain
experienced employees after they reached retirement age
and, on application , to transfer them to more suitable
work . Walker, whose testimony was corroborated by
Dowling , recalled Byrne also declared that Byrne Dairy
employees may stay on at age 65 but when a man reaches
that age, under a union contract , "out the door you would
go."
After reviewing the benefits and retirement programs,
Byrne remarked that others "promise a land of love" but
"we - keep the place running ." He then said , "you know
what happened to Fairbanks ,"' handed an employee a
newspaper item about Fairbanks Dairy , a copy is in
evidence , and told him to read it. The item referred to the
Board ' s Decision in Fairbanks Dairy, Division of
Cooperdale Dairy Company , 146 NLRB 893. After the
item was read , Byrne said , according to the credited
testimony of Bart, "the union was representing these
people and that they were no longer in business , they were
no longer a plant." Walter J . Nellis, general manager at
Fairbanks Dairy , testified that , at the time of the Board's
Decision in April 1964 , Fairbanks had an inside bottling
and an outside sales operation but that , in May 1965, it
discontinued the bottling phase of its business and laid off
the men who had been engaged in that work.
Finally, Byrne told the employees that many men were
against unions, asked what was the will of the employees,
'Attie caring , the General Counsel refused a timely request by
Respondent 's counsel for the production of a second statement given by
General Counsel 's witness Patrick Joseph Dowling, for use in the
cross-examination of Dowling . (The first statement was produced.) Relying
on the amendment to Section 102.118 of the National Labor Relations
Board Rules and Regulations, Series 8 , effective July 8, 1968, the General
Counsel contended that the contents of the second statement did not relate
to the subject matter of the witness' direct testimony . I examined the
statement In cpmera and found that it dealt with matters other than those
about which the witness testified on direct. Accordingly , I denied
Respondent 's motion to compel the General Counsel to produce the
statement and, at the same time, instructed the reporter to forward the
statement to the Board in a sealed envelope.
' In view of the weight of the credible evidence and considering
demeanor , I do not accept Byrne's general denial of any threats by him to
withdraw employee benefits.
'Byrne's recollection of this remark was ambivalent as he testified, at
one point , that he asked , "Do you know what happened to Fairbanks?"
The question , however is comfortably cushioned between testimony where
Byrne twice acknowledged the accuracy of the statement quoted above.
Accordingly , I find that a statement and not a question was presented to
the employees.
315
and said "you can move ahead faster here , stay on our
team , it will pay in the long run."
2. The interview on February 21
On Wednesday , February 21, Vincent and William
Byrne sent for Haas to come to the conference room. As
Haas was off that day , the message was delivered , during
the lunch period , by Haas ' wife who was employed as a
receptionist and confidential secretary to Jack Byrne,
president of Respondent.
During the interview , according to the credited
testimony of Mr . Haas , Vincent Byrne inquired about
James Parry, the assistant business agent for Local 316,
asking whether Parry was alone when he visited Haas in
the latter' s home about 1 week earlier or was
accompanied by Dowling as Dowling had been in "union
processions" before , why Dowling favored the Union, and
whether Parry had criticized the Company 's insurance
policies . Questioned about the morale of the men, Haas
said they wanted a union. Vincent Byrne then asked, again
according to the credited testimony of Haas, how the men
stood with the Union, whether the Union could be
stopped , whether the Company would win, and whether
Haas had signed a union application . Further, Byrne
asked Haas who favored the Union and who was in
between . To the last inquiry , Haas responded by giving
the names of nine employees who he believed supported
the Union , including the name of Victor Rogers, and by
stating that the others were against the Union or in
between . Finally, Haas averred that , while he was
indicating the employees ' preference , Byrne "wrote
things" on a list of names Byrne had before him.
Vincent Byrne testified about still another rumor
current in February . This one to the effect that certain
payroll information entrusted to Mrs . Haas had passed to
plant employees . The interview with Mr. Haas was
arranged, said Byrne, to discuss the leak of confidential
information and plant morale . Byrne told Haas that his
wife had access to confidential data, asked if she had
disclosed payroll information to him , and if he had taken
such information into the plant and discussed it with the
employees. Haas acknowledged receiving and passing on
confidential information . Byrne then told Haas to keep
what was said to himself because he (Byrne ) did not want
to upset Mrs. Haas who was pregnant at the time.
According to Byrne , Haas' statement about having signed
a union application followed Byrne 's expression of concern
for Mrs . Haas ' physical condition and his desire not to
upset her by disclosing that information entrusted to her
care was passed by Haas to plant employees .' It was at
this juncture, Byrne continued to say, that Haas stated his
wife was already upset by the fact that he had signed an
application for the Union and, in a moment of blind
impulse or possibly out of a sense of guilt, volunteered the
names of six other employees , who had also signed union
applications, before Byrne could stop him . In addition,
Haas offered to intercede with the employees on Byrne's
behalf but Byrne rejected the offer and told Haas to stay
neutral. The Byrnes denied that Vincent asked Haas if he
thought the Union would win and how the Company
could get rid of the Union , denied any interrogation of
Haas concerning his union membership and that of his
coworkers and, denied that Vincent had a list of names on
which he made notations.
'Byrne 's solicitude was illusory or transitory since it appears that he and
his brother Jack dd, in fact , discuss the matter with Mrs. Haas.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Certainly, Respondent had a legitimate and valid
interest in the security of its files and, in fact, was
required to take whatever steps appeared reasonable and
appropriate to uncover and discipline violators of its trust
and their accomplices. It is doubtless true that the
unauthorized disclosure of confidential information was
discussed during the interview, but I do not believe that
the subject of union activities was injected into the
discussion by Haas as an act of self-reproach for
wrongdoing. It strains credulity that Haas could have
given seven names of union supporters, out of a total of
nine that he said he mentioned, before interruption by
Byrne if the employees' organizational activities were not
a matter of deep interest to Byrne. As shown above, the
interview was arranged, according to Byrne, to consider
another matter as well and that was plant morale. Byrne
readily admitted that the Union was involved in the
morale problem, that he was concerned about union
activity in the plant, and that he did not want the Union
to get in. Moreover, the asserted expression of regard for
Mrs. Haas' health did not deter the Byrnes from
discussing the matter with her, a fact which casts doubt
upon the validity of the assertion and the claim that the
expression propelled disclosure by Haas of unwanted
information. Finally, when asked on direct examination
whether he had inquired about Haas' union membership,
Vincent Byrne evaded and testified that the meeting was
about confidential information. In view of the inherent
implausibility of Vincent Byrne's explanation, his evasion,
vacillation, and demeanor, I do not consider the Byrnes'
denials (William testified in corroboration of Vincent) of
Haas' credited testimony as reliable and I do not credit
them.
3. Conclusions as to inference, restraint, and coercion
The Act proscribes interference by an employer with his
employees' right to select a union to represent them.
However, in the 1947 amendment, Congress expressly
recognized that an employer's statements of views,
argument, or opinion would not constitute or be evidence
of an unlawful interference if such statements contained
no reprisal or force or promise of benefit. The question
here is whether the Byrnes' statements stayed within the
limits of "views, argument, or opinion" uncontaminated
by threats or promises.
Surely, Vincent Byrne's remarks to the employees in his
speech of February 20 that their lunch period was free
time but, if the Union was successful in its campaign, they
would have to work 2-1/2 hours longer - which
statement was reinforced by the display of signs
graphically illustrating what was at stake - constitued a
threat of the loss of a benefit not protected by Section
8(c) and condemned as interference by Section 8(a)(l).
Similarly, I construe Byrne's statement that only high
scorers are awarded scholarship payments under a union
contract to mean that children of employees who do not
receive high scores stand to lose a benefit they are now
entitled to under the Respondent's noncompetitive
program. The statement was, therefore, violative of
Section 8(a)(1).
I reached the same conclusion with respect to Byrne's
mention of Fairbanks Dairy prefaced by the statement
"You know what happened to Fairbanks." The reference
was a reminder of the known fact that Fairbanks had
closed down its bottling operations and laid off the plant
employees. The use of the newspaper item concerning
Fairbanks was an obvious attempt to link the plant
closing with the Board's Decision in that case.'° That the
import of his remark and reference would not be lost on
the employees, Bryne told them, according to the credited
testimony of Bart, that "the union was representing these
people and that they were no longer in business, they were
no longer a plant." The statements, in context, were
threats of the loss of jobs and plant closing should the
employees select the Union as their bargaining agent and
were, therefore, coercive and violative of Section 8(a)(1).
Further, Byrne's statement that employees are not
permitted to work after age 65 under a union contract
conveyed a message that the selection of the Union would
result in the loss of a benefit available to older employees.
The statement was also violative of Section 8(a)(1)."
In concluding his speech, Byrne told the employees
"you can move ahead faster here" and urged them to
"stay on our team, it will pay in the long run." I find
these remarks to constitute an implied promise of benefit
if the employees remain loyal to the Respondent and
reject the Union. As a consequence, they were violative of
Section 8(a)(1).
The February 20 speech was plainly calculated to
convey the thought that advent of the Union was linked in
some way with the loss of benefits and job security. And,
although Byrne testified that the purpose of the meeting
was to bring certain "facts" about the Respondent's
various programs to the employees' attention, the need to
do so did not become urgent until after Respondent heard
of the union campaign.
Byrne's professed concern that the employees receive
untarnished facts did not keep him from misstating a fact.
Thus, Byrne' s warning to beware of a stranger (meaning
union and employees without facts) followed by the
statement "if you sign up for something your signature is
forever" and the display of a union authorization form
conveyed a meaning to the employees that was clear and
unmistakable. The meaning was simply that by signing the
Union's authorization form, the employees authorized
deductions from their pay for all time which, of course, is
contrary to fact' S and law." By erroneously representing to
the employees that if they signed the Union's membership
'• n tt a airbanks Decision (146 NLRB 893), the Board found that the
employer violated Section 8(ax5) and (1) by, among other reasons,
negotiating directly with individual employees with respect to the leasing of
routes serviced by them and by splitting and dividing up routes, all without
notice to the exclusive bargaining representative of its employees.
"The complaint does not specifically allege a violation based upon this
statement . However , in view of the similarity of this issue to those alleged
and found and, as it was fully litigated, I am not precluded from passing
upon it by the failure of the General Counsel to allege the statement as a
violation. Associated Home Builders of Greater East Bay, Inc. v.
N.L.R.B., 352 F.2d 745 (C A 9); Frito Company, Western Division v.
N L R.B.. 330 F. 2d 458 (C.A. 9); N. L R B v . Pecheur Lozenge Co. Inc..
209 F .2d 393 (C.A. 2), cert . denied 347 U.S. 953; American Newspaper
Publishers Association v N L R .B., 193 F .2d 782 (C.A. 7), cert. denied
344 U.S. 812; Granada Mills , Inc., 143 NLRB 957, 958; Monroe Feed
Store , 112 NLRB 1336, see also Rule 15 (b), Federal Rules of Civil
Procedure
'TI'he Union 's checkoff authorization provision reads, in pertinent part,
as follows
This authorization and assignment shall be irrevocable for the term of
the applicable contract between the Union and the Company, or for one
year, whichever is the lesser , and shall automatically renew itself for
successive yearly or applicable contract periods thereafter , whichever is
the lesser , unless I give written notice to the Company and the Union at
least 60 days and not more than 75 days before any periodic renewal
date of this authorization and assignment of my desire to revoke the
same
"See the proviso to Section 8(aX3) of the Act, also Section 302(cx4)
therein.
BYRNE DAIRY, INC.
and authorization form their signatures would be forever,
Respondent restrained and coerced its employees in
violation of Section 8(a)(l)." Cf. McCormick
Longmeadow Stone Co ., Inc., 158 NLRB 1237; Armco
Drainage & Metal Products , Inc., 106 NLRB 725,
742-746.
In brief, I conclude and find that Byrne ' s speech was
intended to , and did , interfere with , restain , and coerce
employees in the exercise of their Section 7 rights in
violation of Section 8(a)(1) and that , in the context of the
entire record , it exceeded the limits permitted an employer
by Section 8(c).
Likewise violative of Section 8(a)(1) was the interview
with Haas on February 21, the day following Vincent
Byrne ' s antiunion speech . On his day off, Haas was
summoned to the office by the Byrnes to discuss a leak of
confidential information and plant morale.
Manifestly, Haas was not censured , reprimanded, or
otherwise disciplined for his complicity in a breach of
trust although admittedly guilty of the offense . Rather, on
February 22, Vincent Byrne told Haas that his
transgression would have no bearing on his tenure or work
record . It is evident , therefore , that the wrongdoing was
not the real reason for the call to the office.
During the interview, Haas was questioned repeatedly
by the Byrnes as to whether Union Agent Parry was alone
when he visited Haas or was accompanied by employee
Dowling , whether Parry criticized the Respondent's
insurance program , why Dowling favored the Union, and
where he was asked about the morale of the men, whether
the Union could be stopped , whether Haas had signed a
union application , and who favored the Union . This then
was the true and motivating reason why Haas was
summoned to the office on his day off , his wrongdoing
merely a bridge to the desired end.
It is by now well settled and no longer a matter for
serious debate that the interrogation of an employee as to
his own and his fellow employees ' union sympathies and
activities and as to the organizational efforts of union
agents where , as here , such interrogation is
unaccompanied by assurances against reprisals and serves
no legitimate purpose is not permitted by Section 8(c) and
violative of Section 8(a)(1).16 I so find . Respondent argues
that the interrogation was not coercive because Haas and
the Byrnes were on friendly terms and Haas did not claim
that he was intimidated . There is no merit in the
argument . Assuming the interrogation was conducted in a
friendly atmosphere , as suggested , that fact in itself would
not lessen the unlawful effect of the interrogation as it
sought " to place (Haas] in the position of an informer
regarding the union activities of his [coworkers ]." It was,
therefore , coercive.' 6
As will appear hereinafter , employee Streeter signed an
application for the Union in a local bar . Accordingly,
Vincent Byrne ' s statement , in the February 20 speech, that
the Union was "romancing" employees in a saloon and
forcing its will upon them and his remarks to Haas,
during the February 21 interview , that Dowling had been
in "union processions" before created the impression of
surveillance of employees ' union activities and constituted
interference , restraint , and coercion within the intendment
of Section 8 (a)(1). I so find and conclude.
Not alleged as a violation but fully litigated and, accordingly , a finding
is not foreclosed . See cases cited in fn 11, supra
"Blue Flash Express, Inc., 109 NLRB 591.
"See Abex Corporation , 162 NLRB No. 34.
C. The Refusal to Bargain
1. The appropriate unit
317
The complaint alleges and the Regional Director has
found in Case 3-RC-4368 that the following constitutes a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees, including
bulk tank drivers, cash and carry drivers, and regular
part-time employees, employed by the Respondent at its
plant on Oneida Street in Syracuse, New York, but
excluding all office clerical employees, all retail and
wholesale routemen, route pullers, garage employees,
and all guards, professional employees and supervisors
as defined in the Act.
The answer denies that the unit set forth above is
appropriate.
As indicated above, on March 14 and 20, a hearing was
held on the RC petition at which the Respondent was
afforded the right to offer evidence and argument on the
issues, including the issue of the appropriate unit. While
the Regional Director's unit finding was contrary to the
Respondent's contentions, then and now, that only an
overall plantwide unit is appropriate, it did not avail itself
of the appeal and review procedures provided by the
Board's Rules, Sec. 102.67 (b), and therefore no
relitigation of the unit issue was permitted in this
proceeding." Such relitigation is expressly prohibited by
paragraph (f) of the cited section which provides, in
pertinent part, as follows:
The parties may, at any time, waive their right to
request review. Failure to request review shall preclude
such parties from relitigating, in any related subsequent
unfair labor practice proceeding, any issue which was,
or could have been, raised in the representation
proceeding.
Accordingly, I adopt the Regional Director's finding of an
appropriate unit as controlling herein.1e
2. The Union ' s majority status
The complaint alleges and the answer denies that, on or
about February 14, 15, and 20, a majority of
Respondent's employees in the unit found appropriate
herein designated the Union as their exclusive
collective-bargaining representative.
The General Counsel introduced into evidence two
payroll lists of the Respondent. One covering the period
February 12 through 17 and containing the names of 22
plant employees, the other the period February 19 through
24 with the same number of such employees. The parties
agreed to exclude Reilly, the plant superintendent, as a
supervisor. They also agreed that the name Bruce
Richmond which appears in two places on the lists, but
"An offer of proof in support of the Respondent's unit contention was
made and rejected.
"Distinguish Stanley Air Tools . Division of the Stanley Works. 171
NLRB No. 48 , where relitigation of the issue of supervisory status was
permitted on the theory that the issue in the unfair labor proceeding was
unrelated to the earlier resolution in the representation case. Here,
however, the alleged refusal to bargain in the unit found appropriate is
clearly related to , and inextricably a part of, the prior determination. See
also Amalgamated Clothing Workers of America , AFL-CIO (Sagamore
Shirt Company ) v. N.L R. B., 365 F.2d 898 (C A.D.C.), and Heights
Funeral Home, Inc. v N.L.R B . 385 F. 2d 879 (C A 5)
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counted only once in the figure given above, is the name
of the same individual and that he should be included in
the unit. It is, therefore, concluded that, during the
periods February 12 through 17 and February 19 through
24, there were 21 nonsupervisory employees in the unit
found appropriate. The Union, therefore, needed 11 valid
designations in those periods in order to have achieved a
majority.
In support of the claim of majority representation, the
General Counsel introduced 14 signed applications for
union membership . The applications , with a perforated
line across the center of each , were in the following form:
DAIRY AND BAKERY SALESMEN AND DAIRY
EMPLOYEES UNION LOCAL 316
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America
Syracuse, N.Y.
APPLICATION FOR MEMBERSHIP
Date Employed
Last Name First Name
Date of Birth
Address
Phone No
Amount Paid on Applications.
Soc. Sec. No.
Init
Date Initiated Beneficiary
I hereby designate the Dairy and Bakery Salesmen and
Dairy Employees Union Local 316, through its authorized
agents , as my representative for collective bargaining.
Plant -
Voucher
. Dept.
Signed
CHECK-OFF AUTHORIZATION AND ASSIGNMENT
I, the undersigned member of Local No . 316 of the Inter-
national Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , herewith , authorize my
employer to deduct from my wages each and every month
my union dues , consisting of initiation fees , fines, and uni-
form assessments owing to such Local Union as a result of
membership therein , and direct that such amounts so de-
ducted be sent to the Secretary -Treasurer of such Local
Union for and on my behalf.
This authorization and assignment shall be irrevocable
for the term of the applicable contract between the Union
and the Company , or for one year, whichever is the lesser,
avid shall automatically renew itself for successive yearly or
applicable contract periods thereafter , whichever is he les-
ser, unless I give written notice to the Company and the
Union at least 60 days and not more than 75 days before
any periodic renewal date of this authorization and assign-
ment of my desire to revoke the same.
I have read the above authorization and application and
understand it and have signed it of my own free will. This
is not to be applicable until 30 days after the date hereof.
Employee
Witness:
Date 19
Each application consisted of an original and duplicate
copy. The Union retained the duplicates and sent the
originals to the Board 's Regional Office in Buffalo in
support of its representation petition. Twelve were
received there and time-stamped by a Board employee on
February 19. The application si gned on February 7 by
Leonard A. Alsheimer, the cash and carry driver, was not
forwarded to the Regional Office because the Union had
been advised by its attorney to exclude all drivers from
the requested unit . And, for reasons not disclosed, the
application signed on February 15 by Victor James
Rogers , the alleged discriminatee , does not bear a stamp.
The Respondent contends that , by the clear wording of
the application , the designations were not effective until 30
days after execution and, therefore , that the Union did not
represent a majority at any time material . In support
thereof, Respondent points to the last paragraph in the
bottom section of the application which reads as follows:
I have read the above authorization and application
and understand it and have signed it of my own free
will. This is not to be applicable until 30 days after the
date hereof. [Emphasis supplied.]
I find no merit in this contention. As noted above, the
application is in two sections . The last sentence in the top
section denominated : "APPLICATION FOR
MEMBERSHIP ," states:
I hereby designate the Dairy and Bakery Salesmen
and Dairy Employees Union Local 316, through its
authorized agents, as my representative for collective
bargaining . [Emphasis supplied.]
The term "hereby" obviously means that the applicant
designates the Union as his bargaining representative as of
the date he signs the application . The word " this," in the
paragraph cited by the Respondent , refers to the
authorization for checkoff and not to the application for
membership"
I turn now to a consideration of the validity of the
applications . Each application bears the signature of the
applicant in the top section and it appears again in the
bottom section together with the signature of a witness.
Assistant Business Agent Parry credibly testified that he
observed each of the following named employees execute
an application on the date which appears next to the
employee 's signature and that he signed each as a witness:
Patrick J . Dowling 2/7/68
Leonard A. Alsheimer 2/7/68
Richard C . Walker 2/9/68
Albert V. Bart 2/13/68
Joseph F . Pistello 2/13/68
Harry E . Wells 2/ 13/68
Donald E . Wells 2/13/68
Robert J . Doupe 2/13/68
Bruce C . Doupe 2/14/68
Donald E . Haas 2/14/68
James B. Streeter 2/ 14/68
Erie J. Crump 2/14/68
Andy J. Clendenning 2/14/68
Victor James Rogers 2/ 15/68
Except in the cases of Dowling , who signed his application
in the presence of his sister and Parry, and Alsheimer,
who signed in Parry's presence alone, all applications were
executed in the presence of other employees and Parry.
Streeter signed his application in Flanigan ' s bar before
Parry , Dowling , and Walker. After execution, Parry
immediately assumed control of all applications.
The 14 applications were received in evidence. No
irregularities in signature or date appear on any of them
and, after their receipt , Respondent presented no detailed
proof to rebut the presumption arising from the
unambiguous language on the applications . In view of the
"An application identical in form to the one here in question was found
to be a valid present designation in Marsellus Vault & Sales. Inc. 170
NLRB No. 99
BYRNE DAIRY , INC. 319
foregoing and considering the credited testimony
concerning the signing of the applications on February 7,
9, 13, 14, and 15, Parry's immediate assumption of
custody and his identification of the applications at the
hearing, I conclude and find that the 14 applications
constitute valid designationsl0 and that, accordingly, on
February 14 and thereafter, the Union represented a
majority of the 21 employees in the unit herein above
found to be an appropriate bargaining unit. In reaching
this conclusion, I am not unmindful of Respondent's
contention that any presumption of validity that might
attach to the applications is destroyed by Parry's alleged
statement to Haas that the signing of the application was
not for the purpose of collective bargaining and by Parry's
statement to Clendenning that the Union "had plenty of
signatures without mine but they wanted me to be a part
of them." There is no evidence the employees were told
that the only purpose of the applications was to secure a
Board election. On the contrary, it was affirmatively
established that they were informed, in unmistakable
language , that the applications would have the effect of
designating the Union as their bargaining agent and that
purpose is clearly stated on the face of the application.
Haas testified Parry read the portion of the application to
him which states that the applicant designates the Union
his representative for collective bargaining . Accordingly, I
credit this later statement of Haas and find that the
earlier remark, cited by the Respondent, ensued from a
misunderstanding of the question propounded. With
regard to Clendenning, it does not appear that the
statement attributed to Parry was contrary to the fact as
Clendenning signed on February 14, the day the Union
received a total of 13 signed applications, 2 in excess of
the required majority. Accordingly, I reject the
contention.
3. The Union' s bargaining demands and the
Respondent 's refusals
The complaint alleges and Respondent denies that
"commencing on or about February 14, 1968, and
continuing to date, more particularly on February 14, 15,
and 20, 1968, the Union has requested, and is requesting,
Respondent to bargain collectively" with it as the
exclusive collective-bargaining representative of the
employees in the unit found appropriate herein, and that
"commencing on or about February 14, 1968, and at all
times thereafter, Respondent did refuse, and continues to
refuse, to bargain collectively with the Union" but instead
engaged in a course of conduct designed "to undermine
the Union and destroy and dissipate its majority status.
The Union first demanded recognition and bargaining
rights by telegram dated February 14 addressed to John
M. Byrne, president of Respondent. After stating that the
Union has been designated bargaining representative by a
majority of employees in a unit of all inside production
and general help employees employed at the Respondent's
Oneida Street location excluding drivers and all other
employees and all other locations of Respondent's
operation, the telegram adds: "If you have any questions
concerning our majority standing, we would be willing to
submit to a card-check by an impartial person to satisfy
you in this regard . Please contact me immediately to
arrange a bargaining meeting." The name Patrick F.
Shanahan , president of the Union , appears at the bottom
of the telegram.
M. Harold Dwyer , attorney for Respondent , replied on
February 15 by letter which reads , in part , as follows:
Please be advised that Byrne Dairy, Inc. has a good
faith doubt that you do, in fact , represent a majority of
those of its employees who would constitute an
appropriate collective bargaining unit and , therefore,
your demand for recognition is denied.
Should you be in disagreement with the position of
our client as stated herein , we suggest that you establish
your claim in accordance with the National Labor
Relations Act.
On February 15, Shanahan sent a letter to John Byrne
repeating the Union 's earlier demand for recognition and
bargaining and again offering to prove its majority by a
card check. In addition , the unit in which the Union
claimed a majority interest was set forth as follows:
All inside production , maintenance and general help
employees employed [by Respondent ] at [its] 240
Oneida Street , Syracuse, N.Y. plant and excluding all
drivers , mechanics , office clerical , store clerks, sales
personnel, supervisors , guards , solicitors , and excluding
all employees employed at locations other than the
Oneida Street , Syracuse , N.Y. plant.
By letter dated February 19, Shanahan acknowledged
receipt of Dwyer' s communication of February 15, and
again repeated the Union's demand for bargaining rights
and its offer to submit to a card check . In reply , Dwyer,
by letter dated February 20, advised the Union , in part, as
follows.
We do not accept your offer to determine the matter
of representation by a card check.
We are ready to meet and bargain as soon as a
representative has been certified by the National Labor
Relations Board . In view of your petition to that end
which is now pending before the Board, such a meeting
would be premature at this time.
From the above , I find that on February 14 the Union
demanded recognition , that this was refused by the
Respondent on February 15, that the Union renewed its
demand on February 15 and 19 and that on February 20
Respondent again refused recognition . Furthermore, I find
that the Union ' s demands and the Respondent 's refusals
have both persisted until the present.
It has been found above that the Union attained a
majority status on February 14, therefore, the
Respondent ' s failure to recognize or bargain with the
Union on and after February 15 - when the demand was
renewed - constituted a violation of the Act unless the
Respondent's refusal was excused by a variance in the unit
or was based upon a good-faith doubt of the Union's
majority status.
Initially, a question is presented whether the inclusion
of two bulk tank drivers=" and one cash and carry driver"
in the unit found appropriate above constitutes a
substantial variance between the appropriate unit and that
which the Union proposed as to relieve Respondent of its
statutory obligation to bargain . The inclusion of these
employees in the appropriate unit does not alter the
Union's majority status or change the basic character of
the unit . I find, therefore , the variance between the
"See Hunter Engineering Company, 104 NLRB 1016, 1020, enfd. 215
F.2d 916 (C.A. 8).
" Mortimer Reed , Jr., and Bruce Richmond.
"Leonard A . Alshe,mer.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested unit and the appropriate unit to be insubstantial."
Respondent contends that it had a serious doubt with
regard to the appropriateness of the unit requested by the
Union and this doubt was reinforced by the filing of the
petition for certification in which the Union itself raised a
question of representation. The contention lacks merit. In
electing to rely on its belief that a plantwide unit was the
only appropriate unit, a position rejected by the Regional
Director, Respondent acted at its peril and in violation of
the Act.2° Moreover, the filing of a representation petition
by a union does not per se suspend an employer's
bargaining obligation where, as in this case, the
Respondent engages in unfair labor practices during the
preelection period." Respondent also contends that its
doubts about the Union's majority stemmed from a long
history of attempts by the Union to organize its
employees and prior claims of majority interest which
were never substantiated. It is evident enough, however,
that Respondent refused the Union's suggestions,
contained in its requests of February 14, 15, and 19, that
a card check be made by a disinterested third party to
establish its claim and, instead, embarked upon a series of
activities violative of Section 8(a)(1) detailed above. The
February 20 speech to all plant employees was one such
instance, the interview the following day with Haas was
another. Clearly, these occasions of interference, restraint,
and coercion were sufficiently pervasive and serious to
destroy any possibility of conducting a free election.26
Viewed in the light of these events, I am persuaded and
find that the Respondent's refusal to recognize and
bargain with the Union, on and after February 15, was
not based, as it contends, on a good-faith doubt of the
Union's majority but instead was motivated by a desire to
gain time within which to dissipate the Union's majority.
By such conduct, Respondent violated Section 8(a)(5) and
(1) of the Act."
D. The Separation of Victor James Rogers
1. Facts
On February 3, Rogers applied for work at Respondent
in response to a newspaper advertisement for truckdrivers
or route men. Ronald Kelly, an employee, informed
Rogers that there were no openings in those classifications
and suggested that he talk to William Byrne with regard
to a position in the plant. In the interview with Byrne,
conducted in the presence of Plant Superintendent Tom
Reilly, Byrne told Rogers that he was overstaffed but
could give him temporary work in the plant and asked
Rogers why he wanted to work for the Respondent.
Rogers replied that he intended to move from the village
of Palymra and sought permanent work in Syracuse.
Byrne then said that the job would be full-time but
temporary, that he could not guarantee permanent
employment and would not want Rogers to move to
Syracuse thinking he had a permanent assignment . Rogers
did not flatly deny these assertions stating only that he did
"Delight Bakery, Inc, 145 NLRB 893, enfd . 353 F.2d 344 (C.A. 6),
United Butchers Abattoir. Inc.. 123 NLRB 946; American Rubber
Products . Corp., 106 NLRB 73.
"Tom Thumb Stores , Inc.. 123 NLRB 833.
"See United Butchers Abattoir . Inc., supra.
"See N. L.R.B. v . River Togs , Inc. 382 F 2d 198 (C A 2 ), enfg. in part
and denying in part 160 NLRB 58.
"Joy Silk Mills , Inc., 85 NLRB 1263, enfd as modified 185 F.2d 732
(C A.D.C.) cert denied 341 U.S 914; Irving Air Chute Company, Inc. v.
N.L R.B.. 149 NLRB 627, enfd 350 F.2d 176 (C.A. 2k see also
International Metal Specialties , Inc.. 172 NLRB No 39.
not recall Byrne telling him the work would be temporary.
In any event, Byrne offered Rogers employment at once
and Rogers accepted. However, since Rogers was
employed elsewhere at the time, Byrne deferred to Rogers'
request for 2 weeks' delay. Rogers commenced his
employment at Byrne on February 6,28 and worked on the
paper operating machine until he was laid off on February
27.
Rogers signed a union application on February 15, as
found above, and attended the February 20 meeting of all
plant employees. In the interview with Haas on February
21, Haas told Vincent and William Byrne that Rogers and
eight other employees were union supporters.
Sometime between 5:30 p.m. and 6 p.m. on February
26, while Rogers was completing his work for the day,
William Byrne saw Rogers with empty boxes and asked
why he needed them. Rogers replied that he intended to
use them to pack his belongings for the move to Syracuse.
Byrne said he could not stop Rogers from moving and
reminded Rogers that he was advised, at the time of the
initial interview, not move to Syracuse because of the job.
Byrne then told Rogers that two employees who he
thought were leaving when he hired Rogers had decided to
remain and , as a result , he would have to let Rogers go
because he had too much help. Byrne asked Rogers if he
would report for work the next day and Rogers said that
he would report as usual.
At the close of the workday on February 27, Rogers
went to William Byrne's office where Byrne handed
Rogers his pay envelope and told him he was through
Rogers asked why he was being terminated. Byrne replied
that he had no complaints about Rogers' work, that it was
satisfactory in every way, and that it was simply a matter
of the Company having more help than it needed. Rogers
testified that Byrne then asked what he (Rogers) would do
if he were in Byrne's shoes and he (Rogers) replied that he
would dismiss one of the two employees Byrne thought
was leaving as both had military obligations. Rogers
recalled that Byrne named Pistello but said that Haas was
not mentioned. Finally, Byrne told Rogers that he would
recall him when there was an opening.
Byrne's version of the exit interview was in accord with
Rogers' in all essential particulars except Byrne testified
he told Rogers that he had talked to Haas and Pistello the
previous Thursday or February 22, that both stated,
contrary to earlier expressions, they were not leaving" and
that, since Rogers was the last man hired, he would be the
first laid off. Both Haas and Pistello testified that Byrne
told them, before Rogers was laid off, he had too much
help.
"Rogers was allegedly summarily discharged by his former employer
upon presentation of 2 weeks ' notice of his intention to quit.
"The underlying facts with regard to the alleged change in positions of
Haas and Pistello are as follows . Haas disliked the milk business and was
unhappy in his work. Although Haas testified he was uncertain whether he
had discussed the subject of his leaving with Byrne in January, I think it is
highly probable that the subject was discussed in that month . Accordingly,
I do not credit Haas' statement that he first told Byrne he was leaving on
February 27 or his denial of a conversation with Byrne on February 22. A
composite reading of Haas' testimony leads me to the conclusion that
Haas announced he was leaving in January and reaffirmed his intention on
February 22, the day after the interview , with a caveat that left open for
the indefinite future the actual date of his departure
Pistello told Byrne , in January , that he was going to enlist in the Air
Force. Later, in the same month or early in February, he announced that
he could not enlist and , therefore , had decided to take his chances in the
draft . The net result of all this was an expression by Haas on February 22
and an earlier indication from Pistello of their intentions to remain with
the Respondent for indefinite periods. Accordingly , Byrne's statements to
BYRNE DAIRY, INC.
On March 5, William Byrne wrote Rogers, at his last
known address in Palmyra , advising him that there was no
vacancy in his classification and requesting his telephone
number for future use. In April, Rogers stopped in to see
William Byrne, told Byrne that he had moved to
Syracuse, and inquired about an opening. As there was no
vacancy at the time, Byrne again promised to contact
Rogers when one occurred. Sometime in May, but before
the Board election on May 9, Byrne visited Rogers in his
home and offered him employment in the classification he
held at the time of the layoff. Rogers agreed to return on
May 13 but did not report as he had promised. Notice of
Respondent's offer to Rogers was posted on the
Company's bulletin board. On May 15, one Burt Brown, a
former employee and an experienced paper machine
operator, was given the job offered Rogers on May 13.
No new employee was hired between February 27 and
May 15. Rogers voted in the Board election.
2. Contentions of the parties
The complaint alleges and the answer denies that, on or
about February 27, Respondent laid off Rogers and
thereafter failed and refused to reinstate him "because
[he] joined or assisted the Union or engaged in other
union or concerted activities for the purpose of collective
bargaining or mutual aid or protection." The Respondent
attributes the layoff solely to economic factors.
3. Conclusions
Rogers' union activities were limited to signing a union
membership application. Vincent and William Byrne knew
this because Haas told them during the February 21
interview. However, apart from signing an application,
Rogers played no role in the organizational campaign. In
fact, Rogers was probably the least active of all union
supporters. He was not in any of the groups of employees
that accompanied Parry in soliciting signatures from
fellow employees and was the last employee to sign a
membership application.
According to the Byrnes, as shown above, Respondent
decided in February to reduce the size of its staff because
of an over supply of help and Rogers was selected for
layoff on February 27 because he had less seniority than
any other employee. It was affirmatively established that
by letter dated March 5 Byrne asked Rogers to forward
his telephone number for use in the event of a vacancy
and that , in early May, Respondent recalled Rogers in the
classification he held at the time of the layoff but Rogers
failed to report for work although he had agreed to do so.
The General Counsel asserts that , even assuming Haas
and Pistello had changed their minds before the layoff and
decided to remain, there was no economic justification for
the layoff of Rogers because employee Wallace left
Respondent's employ the day Rogers was hired and
employee Don Wells quit the day Rogers was laid off.
From this premise he argues that , since the assigned
reason can not be sustained , the real reason for the layoff
must be found in Rogers ' prounion sympathies and
Respondent's opposition to the Union. I find no merit in
the argument. Whether the layoff was economically
justifiable is not a matter ofconcern to the Trial
Examiner. It is elementary that an employer may
discharge , or as in this case , layoff an employee for cause
Rogers on February 26 and 27 that two employees had decided to remain
was consistent with the basic facts.
321
or even no cause at all provided it is not for union
membership or activity. The crucial question, in the first
instance, is the motivating reason for the layoff.
Surely, Respondent knew Rogers had signed a union
application. It was also well aware that at least six other
employees had signed applications, including Dowling,
who Vincent Byrne observed had been in union
processions before. Yet, Dowling continued in
Respondent's employ and was employed on the date he
appeared and testified at the hearing. It is not disputed
that Rogers was junior in seniority to all plant employees;
that, consistent with an earlier promise, Respondent, in
early May, recalled Rogers in the classification he held at
the time of the layoff; and that, when Rogers failed to
report for work as he had agreed, Respondent hired
another person. It is abundantly clear, therefore, that
Respondent's actions and conduct effectively refute the
claim that the layoff was motivated by an antiunion
purpose. Further, the allegation that Respondent failed
and refused to recall Rogers is contrary to the facts.
Accordingly, as the General Counsel has failed to sustain
his burden of proving, by a preponderance of the evidence,
that the selection of Rogers for layoff was discriminatorily
motivated, I shall recommend that the allegations of
discrimination set forth in the complaint in Case
3-CA-3450 be dismissed.
III. THE UNION S OBJECTIONS TO THE ELECTION
In the objections to the election in Case 3-RC-4368, the
Union alleges, in relevant parts, that, since on or about
February 14, the Respondent ". . . unilaterally made
substantial offers of improvement in benefits and
conditions with the purpose and effect of substantially
affecting the outcome of the election. The Employer
discharged one employee, threatened other employees,
conducted interrogation and surveillance and harassment
of employees concerning their membership and activity on
behalf of the Union."
In the Order Consolidating Cases and Notice of
Hearing dated June 21, the Regional Director ordered
that a Trial Examiner shall prepare a Decision and, upon
issuance of the said Decision, Case 3-RC-4368 shall be
transferred to and continued before the Board.
The critical period here runs from February 19, 1968,
when the Union's representation petition was filed, to
May 9, 1968, the date of the election. Ideal Electric and
Manufacturing Company, 134 NLRB 1275, 1278.
The evidence upon which the General Counsel and the
Union rely to sustain the objections is the same as that
offered in support of the 8(a)(1) and (3) allegations. To
the extent that I have already found the 8(a)(1) allegations
to constitute unlawful conduct and, as such conduct
occurred during the critical preelection period, it is
unnessary to restate those findings in a parellel context. It
is sufficient to say that the instances of interference,
restraint, and coercion found above more than adequately
support the objections filed here.90 Accordingly, I conclude
and find that by such conduct Respondent interfered with
its employees' freedom of choice in the election held on
May 9. I shall, therefore, recommend that the objections
be sustained, the election held on May 9 in Case
3-RC-4368 be set aside, and that the petition filed therein
be dismissed."
"See Playskool Manufacturing Company, 140 NLRB 1417, 1419;
Overnite Transportation Company, 158 NLRB 879, 884
"Irving Air Chute Company, Inc.. Marathon Division , 149 NLRB 627,
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The Remedy
The activities of Respondent set forth in section II,
above, occurring in connection with Respondent's
operations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
Upon the basis of the above findings of fact and upon
the entire record in the cases, I make the following:
CONCLUSIONS OF LAW
1. Byrne Dairy, Inc., is, and has been at all times
material, an employer within the meaning of Section 2(2)
of the Act, and is, and has been at all times material,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Dairy & Bakery Salesmen & Dairy Employees
Union Local 316, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America is, and has been at all times material,
a labor organization within the meaning of Section 2(5) of
the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
ofthe Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. All production and maintenance employees, including
bulk tank drivers, cash and carry drivers, and regular
part-time employees employed by Respondent at its plant
on Oneida Street in Syracuse, New York, but excluding
all office clerical employees, all retail and wholesale
routemen, route pullers, garage employees, and all guards,
professional employees and supervisors as defined in the
Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
5. The above-named labor organization was, on
February 14, 1968, and at all times since has been, the
exclusive representative of all employees in the unit
described above for the purpose of collective bargaining
with respect to rates of pay, wages, hours of employment,
or other terms and conditions of employment.
6. By refusing, on and after February 15, 1968, to
bargain collectively with the above-named labor
organization as the exclusive representative of all
employees in the unit described above, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
8. The General Counsel has failed to establish that
Respondent discriminated against Victor James Rogers, or
committed any other violation alleged in the complaints
but not herein found.
9. Respondent's conduct as found hereinabove impro-
perly affected the results of the election held on May 9.
629-630 cn . 350 F 2d 176 (C.A. 2, 1965)
Having found that Respondent violated Section 8(a)(1)
and (5) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action,
including the posting of appropriate notices, designed to
effectuate the policies of the Act.
Having found that Respondent's conduct improperly
affected the results of the election held herein, I shall
recommend that the election held on May 9, in Case
3-RC-4368, be set aside and the petition filed therein be
dismissed.
Having found that the Union had a valid card majority
and that Respondent did not have a good-faith doubt in
refusing to bargain with the Union, and that it committed
unfair labor practices to erode the Union's majority, I
shall recommend that Respondent recognize and, upon
request, bargain collectively with the Union as the
exclusive representative of the employees in the unit found
appropriate herein.
It will further be recommended that the complaint in
Case 3-CA-3450 be dismissed, insofar as it alleges that
Respondent discriminatorily laid off and failed and
refused to reinstate Victor James Rogers, or committed
any other violation alleged in the complaint but not herein
found.
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Byrne Dairy, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its
employees in the exercise of their statutory rights within
the meaning of Section 8(a)(1) of the Act, by interrogati ng
them about union matters, soliciting information from
them as to how the Union may be defeated, threatening
them with discharge, plant closure, loss of paid lunch
period, scholarship fund, or retirement benefit in the event
they became or remained members of the Union, making
implied promises of general benefit if they refrained from
becoming or remaining mem bers of the Union, and
keeping under surveillance, and/or giving the impression
that it is keeping under surveillance the union activities of
its employees.
(b) Advising employees that if they sign the Union's
authorization form their signatures are forever.
(c) Refusing to bargain collectively concerning rates of
pay, wages, hours of employment, or other terms and
conditions of employment with Dairy & Bakery Salesmen
& Dairy Employees Union Local 316, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the exclusive
representative of its employees, in the following
appropriate unit:
All production and maintenance employees, including
bulk tank drivers, cash and carry drivers, and regular
part-time employees employed by Respondent at its
plant on Oneida Street in Syracuse, New York, but
excluding all office clerical employees, all retail and
wholesale routemen, route pullers, garage employees,
and all guards , professional employees and supervisors as
defined in the Act.
BYRNE DAIRY,
(d) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Dairy &
Bakery Salesmen & Dairy Employees Union Local 316,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, as the
exclusive representative of all its employees in the
above-described appropriate unit with respect to rates of
pay, wages, hours of employment, or other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed contract.
(b) Post at its plant in Syracuse, New York, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 3, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees 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.
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
IT IS ALSO RECOMMENDED that the complaint in Case
3-CA-3450 be dismissed insofar as it alleges that the
Respondent discriminated against Victor James Rogers or
committed any other violation alleged in the complaint
but not herein found.
IT IS FURTHER RECOMMENDED that the Union's
objections to the conduct of the election held on May 9, in
Case 3-RC-4368, be sustained, that the said election be set
aside, and that the petition for certification of
representatives filed therein be dismissed.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
After a trial in which all parties had an opportunity to
present evidence, a Trial Examiner of the National Labor
Relations Board found that we, Byrne Dairy, Inc.,
violated the National Labor Relations Act and ordered us
to post this notice to inform our employees of their rights.
The Trial Examiner's Recommended Order has directed
us to assure our employees that:
WE WIL L NOT question you about your union
activities; solicit information from you as t o how Dairy
& Bakery Salesmen & Dairy Employees Union Local
316, affiliated with International Brotherhood of
INC. 323
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, herein at times called the Union, may be
defeated; threaten you with discharge, plant closure,
loss of paid lunch period, scholarship fund, or
retirement benefit in the event you become or remain
members of the Union; make implied promises of
general benefit if you refrain from becoming or
remaining members of the Union; and, we will not keep
under surveillance your union activities and/or give the
impression that we are doing this.
WE WILL NOT tell you that if you sign the Union's
authorization form your signature is forever.
WE WILL NOT refuse to bargain collectively with
Dairy & Bakery Salesmen & Dairy Employees Union
Local 316, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive representative of all the
employees in the bargaining unit described below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
right to self-organization, to form, join, or assist any
labor organization, to bargain collectively with us
concerning terms or conditions of employment through
representative you select, or to refrain from any of
these activities if you so choose, except as these rights
may be affected by a contract validly made under the
National Labor Relations Act, whereby membership in
a labor organization is a condition of employment after
the 30th day following the date of the contract or the
beginning of a person's employment, whichever is later.
WE WILL, upon request, bargain collectively with
Dairy & Bakery Salesmen & Dairy Employees Union
Local 316, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive bargaining representative of
all employees in the bargaining unit described below
concerning rates of pay, wages, hours of employment,
and other terms and conditions of employment, and, if
an agreement is reached, embody it in a signed
contract. The bargaining unit is:
All production and maintenance employees,
including bulk tank drivers, cash and carry drivers,
and regular part-time employees employed at our
Oneida Street plant in Syracuse, New York, but
excluding all office clerical employees, all retail and
wholesale routemen, route pullers, garage employees,
and all guards, prof essional employees and
supervisors as defined in the Act.
All our employees are free to become or remain
members of Dairy & Bakery Salesmen & Dairy
Employees Union Local 316, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, and we won't punish you in any way
if you do.
Dated By
BYRNE DAIRY, INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice may be directed to
the Board' s Regional Office, Fourth Floor, The 120
Building , 120 Delaware Avenue, Buffalo, New York
14202, Telephone 842-3100.