Cargill, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1968

172 N.L.R.B. 183 (N.L.R.B. 1968)

NUTRENA MILLS 183
Nutrena Mills , Division of Cargill , Incorporated and
General Drivers, Dairy Employees and Helpers
Union Local No. 579 , affiliated with the Interna.
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
30-CA-530
June 24, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On December 19, 1967, Trial Examiner Milton
Janus issued his Decision in the above -entitled
proceeding, finding that the Respondent had not
engaged in any unfair labor practices as alleged in
the complaint and recommending that the com-
plaint be dismissed in its entirety , as set forth in the
attached Trial Examiner's Decision. Thereafter, the
General Counsel and the Charging Party filed ex-
ceptions to the Decision and supporting briefs. The
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner 's Decision , the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings , conclusions ,I and recommenda-
tions of the Trial Examiner.
ORDER
ursuant to Section 10 (c) of the National Labor
Rt tions Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be , and it hereby
is, dismissed in its entirety.
In adopting the Trial Examiner 's conclusion that Respondent did not
violate Section 8(a)( I) by stating to its employees that "bargaining starts
from scratch ," we also rely upon our reasoning and decision in Wagner In-
dustrial Products Company, Inc., 170 NLRB 1413.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MILTON JANUS, Trial Examiner : A hearing in this
proceeding was held before me on August 9 and
10, 1967, at Janesville , Wisconsin , on a complaint
issued by the General Counsel against Nutrena
Mills, Division of Cargill, Incorporated. The charge
was filed on February 24, 1967, and the complaint
issued on June 23, 1967. It alleged that the Respon-
dent had violated Section 8(a)(1) by threatening
certain employees, and Section 8(a)(3) by refusing
to permit three named employees to rescind their
previously submitted resignations and by refusing to
rehire them, because of their support of the Charg-
ing Union. The Respondent's answer denied the
commission of any unfair labor practices. Briefs
were filed after the close of the hearing by the
General Counsel, Respondent, and Charging
Union.
Upon the entire record, and from my observation
of the witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Nutrena Mills, a division of Cargill Incorporated,
maintains its principal office at Minneapolis, Min-
nesota. It is engaged in the manufacture and dis-
tribution of animal feed. It has many installations
and plants throughout the country, among which is
the plant at Janesville, Wisconsin, where the al-
leged unfair labor practices occurred. During the
past calendar year, Respondent sold and shipped
products in interstate commerce valued in excess of
$50,000. Respondent admits, and I find, that it is
engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
General Drivers, Dairy Employees and Helpers
Union Local No. 579, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background Facts
The Company began operating its newly acquired
feed mill at Janesville, Wisconsin, in November
1966. Feed is mixed at the mill according to various
formulas and is then packed, either loose or in the
form of pellets, for sale and delivery to dealers and
to large agricultural producers. During the period
involved here, from November 1966 to February
1967, there were 12 or 13 manual employees, con-
sisting of those who worked in the mill unloading,
mixing, packaging, etc., and the truckdrivers, four
in number , who made daily deliveries to customers
in the area served by the plant.
The truckdrivers were Douglas Clark, William
Stockton, and two brothers, Thomas and Richard
Ceslok. Clark, Stockton, and Tom Ceslok are the
172 NLRB No. 24
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three individuals who, it is alleged , were treated dis-
criminatorily in February 1967. They had been
hired in November or December , had completed
their probationary period by mid-February, and
each had received the customary 10 cents per hour
raise thereafter.
In January , interest in union representation
manifested itself at the plant , and Clark volun-
teered to obtain information about it . He then
signed up a number of employees in Local 579
Teamsters , including Stockton and Tom Ceslok,
who also helped him in contacting other employees.
Based on these authorization cards, the Union filed
a petition for representation on January 24.
Thereafter , the Company agreed to a consent elec-
tion to be conducted on March 7 . The Union
withdrew its petition after the filing of the charge
herein , and the scheduled election was never held.
Cargill 's manager for plant employee relations,
headquartered at its main office in Minneapolis, is
Edward Winter .' He came to Janesville on Februa-
ry 14, to speak to the employees about the Com-
pany 's benefits program, which had already been
publicized in the form of an employees ' handbook,
referred to at the hearing as the yellow book. It is
apparent that an incidental benefit which manage-
ment hoped to gain from Winter 's visit was a
chance to present the Company's views on union
representation . Helbig , the manager of the
Janesville plant , arranged two meetings for the em-
ployees-the first on Tuesday afternoon, February
14, for the operators and warehousemen employed
on the day and night shifts inside the plant , and the
second , early in the morning of the next day, for
the truckdrivers.
I note that Winter 's prepared presentation of the
existing benefits program contained no generalized
attack on unions and conceded the right of em-
ployees to self-organization . Nothing that Winter
said in his prepared talk is alleged to have been in
violation of Section 8(a)( 1). It is only in their spon-
taneous answers or comments to employee state-
ments or questions that Helbig or Winter are al-
leged to have overstepped the bounds of permissi-
ble fair comment.
After the early morning meeting on Wednesday,
February 15, Clark, Stockton , and Tom Ceslok told
Helbig that they were dissatisfied and were quitting
effective at the close of the regular workweek,
Friday , February 17. After resigning in haste, they
reconsidered at leisure , and each of them decided,
before or during the weekend , that he preferred to
continue working for the Company . They spoke to
Helbig separately about returning, and Helbig told
each of them that the home office had already been
advised of their resignations , and that he would
have to let them know on Monday whether he
would take them back . On Monday , he told them
that he would not take them back.
B. The Alleged Independent Violations of Section
8(a)(1)
The complaint , as amplified by specific testimony
at the hearing , alleged violations of Section
8(a)(I ): (1) by Helbig 's threat to Stockton on or
about January 24, that he would be less lenient with
him if the Union got in; (2) by statements of Helbig
or Winter at the two employee meetings that the
employees would suffer a loss of benefits , and that
negotiations would start at the beginning (ex-
pressed in various ways ) if the Union got in; and
(3) by Foreman Van Blaricom threatening
Stockton , after he had quit , that he would not be
rehired because of his support of the Union.
1. A few days after Helbig learned that the
Union had filed a petition for an election , he spoke
to Stockton as the latter was gassing up his truck
before starting the day's run. Helbig 's remarks on
this occasion are the basis for an allegation that he
threatened an employee that he would be less
lenient with him if the Union got in.
Stockton was then within his 60-day probationary
period , and had already been late for work 18
times, including 4 times in the last week when his
tardiness ranged from 4 minutes to 1 hour and 40
minutes . There was not a single week up till then in
which he had not been late at least once . Other em-
ployees were also tardy, but Stockton 's record was
generally the worst in the plant . ( Resp. Exh. 8).
Stockton 's testimony on his conversation with
Helbig is as follows:
I was just gassing my truck up and Mr . Helbig
come up and said that he wanted to talk to me,
he wasn 't trying to get me mad or threaten me
about anything but he just wanted to talk to me
for a couple of minutes. He said they knew
about the union business on account of he'd
received paperwork on it and it had been sent
to the wrong place , that it was sent to him and
it shouldn 't have been and he 'd already for-
warded it on. So, then he said , we got to talk-
ing there for couple of minutes and he said he
felt they was pretty lenient down there espe-
cially, for instance , me, I'd been late 14 times
and I agreed to this and he said maybe we've
been too lenient . I said this could be, this was
his business . So, believe , as far as I can recall,
then he said that if we wanted a union in there
that would be all right with him , he wouldn't
fight it , but if the union did come in there'd be
contracts made up and everything like this and
that everything would be set up just according
to contracts and that 's just exactly how we'd
' Cargill has 240 installations throughout the country , of which more
than 100 employ personnel represented by bargaining agents . It is Winter's
responsibility to help set up benefits packages for those installations where
there is no union representation , and to put out explanatory material for
those employees. Bargaining at union-represented plants is handled by the
director of labor relations, Gilbert Bakeberg Respondent's counsel stated
on the record that this was the first unfair labor practice complaint ever is-
sued against Cargill
NUTRENA MILLS
work there and that we would more or less just
become numbers on a time card . I said I real-
ized there wouldn 't be no 15 or 20 minute cof-
fee breaks like there had been in the past by
quite a few employees there and he stated this
was right . That was basically it . There wasn't
no browbeating or anything like that , we just
talked about it for a couple of minutes and
then he said , that was all. I finished with my
truck and then he went back inside.
Helbig 's testimony is substantially the same ex-
cept that he says that he told Stockton that if he
were late any more he would be replaced . I credit
Helbig 's recollection on that point . Helbig then
went on to say:
I don't know how the subject of the Union
came up , but I mentioned at that time if the
Union did come into our plant it didn't make
an awful lot of difference to me one way or the
other, but there 'd be a contract and a contract
was binding on both sides and I'm sure the
contract would not tolerate the tardiness which
he had had in the past.
Their testimony indicates that the Union , as well
as Stockton 's tardiness , was on Helbig 's mind. Were
Helbig 's remarks calculated to impress Stockton
that he could continue to come in late if the Union
was not successful , but that he would have to toe
the mark only if the Union came in? It does not ap-
pear so to me . Stockton was still in his probationary
period , his tardiness record was bad and Helbig
warned him about it. Although he also brought up
the Union in the same conversation, even
Stockton 's version is that Helbig said that if the em-
ployees wanted a union it was all right with him, he
wouldn 't fight it . Helbig then went on to say in ef-
fect that the relationship between employer and
employee would be less personal if it were
governed by a contract under which the work rules
were less flexible . I do not perceive in these re-
marks an implicit threat that Stockton or other em-
ployees would be treated less leniently than before
simply because the Union became their bargaining
agent , and I shall therefore recommend dismissal of
that allegation of the complaint.2
2. Tuesday afternoon , February 14, Helbig and
Winter met with the inside plant employees, and on
Wednesday morning , February 15, they met with
the four truckdrivers . At these two meetings Winter
made a presentation to the assembled employees of
the benefits they were presently getting , as set forth
in the Company 's yellow handbook . His description
and explanation of the Company 's benefits were
designed to bring to the employees ' attention the
Company's position that its benefits program was
excellent and had been obtained without union in-
tervention . At both meetings there were answers to
employee questions by Helbig and Winter which
revolve about the theme that in negotiations with a
185
union , bargaining starts "with a clean sheet of
paper ," "from scratch " or "at the beginning."
The Meeting on February 14
Christen and Horton, two warehousemen who
worked together on the night shift, testified for the
General Counsel on the events of the afternoon
meetings . They had discussed the Union between
themselves (both had signed authorization cards)
and had decided to raise certain matters at the
meeting . After Winter finished with his description
of the Company's existing benefits program,
Christen asked Winter what gaurantee the em-
ployees had that the Company would retain the
present benefits since it had not signed the yellow
handbook . Winter answered that Cargill was a well-
established , reputable Company and that it had
never reneged on its established benefits. Horton
asked what the government made an employer put
into a bargaining contract , to which Winter an-
swered that it was social security benefits and
something else which Horton could not recall.
Either Christen or Horton then asked how a con-
tract with a union was drawn up , and according to
Christen, either Helbig or Winter said they start
with a blank piece of paper , from scratch, the
parties negotiate and when an agreement is reached
it has to be acceptable both to the Company and to
the employees and that is your contract . Horton's
recollection on this point is that Helbig first said
something about starting from scratch, and that
Winter joined in quickly and said they began with a
clean sheet of paper.
Both Christen and Horton recalled some discus-
sion as to whether the present benefits would be in-
cluded in a contract , and that either Winter or Hel-
big emphasized that the matter would have to be
settled through negotiations , that there was no
guarantee one way or the other on what would
eventually be in the contract . Whoever was the
Company's spokesman (Christen and Horton did
not always agree on who had said what for the
Company ) also made an additional point when talk-
ing about what benefits had to be included in a con-
tract, namely, that the Company also had to benefit
from the contract and would try to get as much
from it as it could , just as the employees would try
to get as much as they could.
Winter and Helbig both denied that they had
used either the phrase "bargaining from scratch"
or "a clean sheet of paper" in the meeting with the
warehousemen. I believe that the recollection of
Christen and Horton on this point is the more accu-
rate . They had come to the meeting primed with
questions and would , I think, have attended closely
to the answers . Neither had any particular interest
of his own to advance in the proceeding . Christen
had already quit voluntarily , while Horton, who was
'Nalco Chemical Company , 163 NLRB 68, 71
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
still employed at the plant , testified after hearing
Stockton , Clark, and Ceslok, and thus with full
awareness that the key phrases were potentially
damaging to the Company.
The Meeting on February 16
The four truckdrivers attended this early morning
meeting . Winter made his benefits program presen-
tation and answered most of the questions. At one
point in his remarks, Winter said that it had been
his experience that one of the reasons employees
got interested in a union was dissatisfaction with
their supervisors . Stockton then said that everyone
liked Helbig , and that the reason for their interest
in the Union was their low wages . Tom Ceslok
asked if Winter could guarantee the drivers a 40-
hour week , and Winter said he couldn 't, since no
one could guarantee the Company a high enough
sales volume . There was also some discussion about
union dues , and what the employees could get by
investing the same amount in some other way.
Clark testified that Stockton had said that if the
Union got in they wouldn 't settle for less than they
already had, and that Helbig had responded by say-
ing that bargaining would be from scratch . Accord-
ing to Clark , Stockton also said that the employees
already had the benefits set out in the yellow book,
to which Helbig replied that these would be thrown
out, and the employees wouldn 't have them.
Stockton 's recollection of the meeting is much
more limited . He remembered that he had an-
swered Winter's remark that one of the reasons em-
ployees got interested in a union was dissatisfaction
with supervisors , and that he had said it wasn't so
with them , it was just a matter of wages . He also re-
called Tom Ceslok asking about a guaranteed 40-
hour week, and Winter 's answer . That apparently
exhausted his recollection . He did not testify that
Winter or Helbig had said anything about bargain-
ing from scratch or with a clean sheet of paper, or
that either of them had said that the employees
would lose their present benefits after negotiations
began or ended.
Tom Ceslok had been in the hearing room when
Stockton and Clark testified , and his independent
recollection of what had been said then seems to
have been affected by what he had heard Clark say.
He testified that Helbig had said that when you
went union , you had to negotiate a contract and
you started from scratch. As was also true of Clark,
Ceslok 's statement , received in evidence for im-
peachment purposes , does not refer to Helbig or
Winter using either disputed phrase . Ceslok
testified on direct examination by the General
Counsel that Helbig had said the Union couldn't do
anything else for them , they already had all that
they could get. On cross-examination , Ceslok said
that Helbig had said there were two sides to
benefits, and if the Union came in, it would have to
be negotiated . He did not recall any conversation at
that point to the effect that existing benefits would
be taken away.
The testimony of Helbig and Winter on the
February 15 meeting is that Stockton had said at
one point that the employees were satisfied with the
existing benefits package , and if the Union got in
they would go on and talk about wages . Winter
(not Helbig ) then said in effect that it might be so,
but when you negotiate , you start with a clean sheet
of paper , both sides have to agree, and that is what
collective bargaining is all about . Winter and Hel-
big denied that either of them had said that the ex-
isting benefits would be lost if the Union got in.
To summarize , Clark and Ceslok testified that
Helbig said bargaining would be from scratch if the
Union got in, while Helbig and Winter said that it
was the latter who had used the phrase "clean sheet
of paper" to explain the process of negotiations. I
find it unnecessary to decide which of these two
phrases was actually used since I consider them
practically synonymous.
There is also Clark 's testimony that Helbig said
that the employees would not have the benefits set
out in the yellow book if the Union got in, and the
testimony of Ceslok that Helbig said that the Union
couldn 't do anything for them-they already had all
that they could get . I mistrust their recollections on
these points . First , I do not believe that Helbig, the
plant manager , would have been so positive on a
matter of union bargaining since my impression
from his demeanor and his testimony is that he was
generally unwilling to take an initiative in what was
to him a new and strange area . I do not believe, as a
matter of fact , that Helbig said much of anything at
the two employee meetings except on questions
specifically relating to the practice prevailing at the
plant , deferring on all other matters to Winter, the
man from the home office . Second, I consider it sig-
nificant that Stockton , who did all or most of the
talking for the drivers , should have had no recollec-
tion of Winter or Helbig threatening the loss of
present benefits. Finally, I suspect that Clark and
Ceslok have attributed to Helbig statements never
actually spoken but which seemed to them to be a
rough approximation of the Company 's position
that -it would not concede that the existing level of
benefits is the floor from which negotiations
proceed.
There remains for determination the question
whether the statement by either of the company
representatives that negotiations begin from scratch
or with a clean sheet of paper was violative of Sec-
tion 8 ( a)(1). I have found that at both meetings
one of the company representatives , most probably
Winter , used the phrase about bargaining from
scratch or its equivalent . The contexts in which it
was used were slightly different . At the earlier
meeting it was in answer to the unsophisticated
question of how an employer and a union go about
drawing up a contract . Considering the form of the
question , the expression "bargaining from scratch"
together with the rest of the answer, seems to me a
NUTRENA MILLS 187
colloquial expression equivalent to a refusal to pre-
dict or guarantee the results of the negotiations. In
its actual setting , neither the key phrase nor the full
answer strikes me as implying that existing benefits
would be withdrawn as a precondition to negotia-
tions.
At the meeting the next morning , one of the
company representatives , most probably Winter,
said that bargaining would be from scratch, in an-
swering Stockton 's comment that if the Union got
in, they wouldn't settle for less than they already
had (Clark 's version ) or that when you went union,
you had to negotiate a contract and you started
from scratch ( Ceslok 's version ). Mechanically con-
strued , the phrase implies that by starting from
scratch in negotiating a contract , all present
benefits are first eliminated . But to say that that is
the only, or the necessary , implication is to disre-
gard what employees in like circumstances would
reasonably understand the tenor of the exchange to
be. Winter would not be understood as saying, it
seems to me , that present benefits would first be
withdrawn , but only that they would be thrown into
the pot with the Union 's proposals and the Com-
pany's counterproposals , and that what emerged
would have to be satisfactory to both parties.
Employees realistically recognize that unions do
not come to the bargaining table expecting to settle
for the existing level of wages and working condi-
tions, and Stockton 's assertion that the employees
wanted a higher hourly rate in addition to the exist-
ing fringe benefits aptly expressed their view of
what negotiations would likely bring . For the Com-
pany, however , to accept Stockton 's matter-of-fact
claim of what bargaining had to bring would be to
expect of it a degree of restraint which borders on
self-sacrifice. Stockton was not to be put off by
Winter 's satisfaction over what the Company was
already providing , and Winter in turn sought to
tone down his vision of the advantages which must
automatically flow from a union contract.
I have considered the cases cited by the General
Counsel for his contention that the phrase "bar-
gaining from scratch " clearly implies that existing
benefits will be diminished or discontinued if the
employer is forced to negotiate with a union. Some
of these cases come close to saying just that, but in
many of them the surrounding facts make explicit
the coercive impact of the employer 's remarks.
Thus, in Famco, Inc., 158 NLRB 111, 115, the em-
ployer coupled his remarks about bargaining from
scratch with the statement that he would not start
with the benefits in the employee handbook, but
would proceed as if this were "a brand new com-
pany." In Federal Envelope Company, 147 NLRB
1030, 1037-41, the employer stressed the certainty
of extended negotiations , and predicted that the
employees would wind up with a contract " like no
contract they had ever seen ." In Marsh Supermar-
kets, Inc., 140 NLRB 899, 901-902, the employer
stated that if the union won the election, the em-
ployees would lose some of the benefits which
they then enjoyed, particularly the existing vaca-
tion plan, and it was in that context that he said
bargaining would start from scratch. See, also,
Howell Refining Company, 163 NLRB 18; Astronau-
tics Corporation of America, 164 NLRB 623;
Raytheon Company, 160 NLRB 1603; Bauer Weld-
ing & Metal Fabricators, Inc., 154 NLRB 954, 962;
Winn-Dixie Stores, Inc., 153 NLRB 273, 283. Com-
pare Trent Tube Company, 147 NLRB 538.
In the present case, the use of the phrase "bar-
gaining from scratch" was prompted by a question
on the mechanics of negotiating a contract, and by
an employee comment which revealed an underly-
ing assumption that union representation is con-
sistent only with favorable changes in wages , hours,
and working conditions . In pointing out, under such
circumstances , that a union must also bargain about
existing conditions , the Company neither assumed
nor implied that negotiations would be futile
because its position was already inflexible, or that
the employees would necessarily lose all of what
they already enjoyed. I also rely for my conclusion
that Section 8(a)(1) was not violated by any re-
marks about bargaining from scratch, on the
absence of accompanying coercive or intimidating
remarks on the consequences of union representa-
tion . I shall therefore recommend dismissal of this
allegation of the complaint.
3. The complaint alleges in effect that Foreman
Van Blaricom threatened Stockton with discharge
because of his support of the Union, but the only
evidence on this matter relates to a conversation
between the two which occurred after Stockton had
voluntarily quit. Although the complaint could per-
haps be interpreted to cover an alleged threat by
Van Blaricom that the Company would not rehire
or reinstate Stockton for union reasons, the
General Counsel's brief does not argue that the
evidence on the matter spells out such a violation.
It does, however, rely on their conversation of
February 19 as proof of the Company's real reason
for refusing to rehire or reinstate Stockton. Since
the recital and resolution of the two conflicting ver-
sions of the conversation bear on the alleged viola-
tion of Section 8(a)(3) in refusing to rehire or rein-
state all three drivers, I will dispose of it in the fol-
lowing section of this Decision.
C. The Alleged Violation of Section 8(a)(3)
When the meeting of Wednesday, February 15,
broke up about 8 a.m., the four drivers went to the
breakroom to discuss what had just taken place, in-
stead of preparing to start their day's run. Clark,
Stockton, and Tom Ceslok were unhappy about the
meeting . They suspected that the Company had had
some devious reason for holding two meetings, and
that it had been able to dissipate the Union's
strength among the warehousemen . They were also
dissatisfied about their wage rate , and there may
also have been an element of worry that if the
Union lost the coming election they would be
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forced out. Stockton , in fact , went into Helbig's of-
fice at one point and asked Winter if they wouldn't
be fired after the election , and although Winter an-
swered that the Company did not operate that way,
there must have been a residual disquiet among
them about the role they had played in supporting
the Union's campaign.
About this time , Dick Ceslok left the breakroom
to go to work . The other three continued their
discussion of their grievances and feelings of frus-
tration . Tom Ceslok said they couldn 't make any
money there , and he was going to quit . Clark and
Stockton then agreed that they would quit too. One
of them pointed out that if they quit then and there,
the Company might not give them a good
reference , and they then mutually decided not to
leave until the end of the week . When Helbig came
into the breakroom to see what was keeping them
from starting out on the day's work , they told him
they were quitting as of Friday . He asked them if
they were sure , and they told him they were . Helbig
went back into his office . Stockton walked in a few
minutes later , and Helbig asked him what had
brought this on. Stockton replied that it was just a
lot of little things . At some point , Helbig thanked
them for not quitting on him immediately.
It did not take them long to decide that they had
been wrong to quit . Clark and Stockton came to
Helbig individually on Friday, and asked if they
could have their jobs back , and on Saturday,
Ceslok did the same . Helbig told each of them that
he would have to let them know later , that he
would have to call someone on Monday to find out
if he should take them back . On Monday, he told
each of them that he would not rehire or reinstate
him. The same day, Helbig used two of his
warehousemen who had experience as truckdrivers
as replacements , and during the same week he also
used a driver employed by one of his customers as a
temporary replacement. That week he placed ad-
vertisements in a newspaper seeking drivers.
When Clark called Helbig on Monday afternoon,
Helbig told him that he was afraid to hire only one
of them , but if Clark wanted his job back , to return
in a couple of weeks after this thing had blown over
and he would talk to him. Clark answered that he
would probably have something else by then.
When Stockton called Helbig on Monday , Helbig
told him he either had to take all three drivers back
or none , and that he wasn 't keen about taking them
all back because he could not see anything to keep
them from walking out on him again . Helbig told
him to look around, and if he had not found
anything in a couple of weeks or so, to call back
and he would be glad to talk to him.
Helbig told Ceslok when he called Monday that
the man in Minneapolis had told him it was all right
with him if Helbig rehired them , but his own per-
sonal opinion was that he shouldn 't take them back
because he was afraid they would do the same thing
again . Ceslok could not recall anything else that
Helbig might have said to him.
The General Counsel admits, and the Charging
Union does not seriously dispute , that the action by
Clark, Stockton, and Ceslok on February 15 con-
stituted a voluntary quit. The fact that they acted
concertedly over dissatisfaction with their wages or
working conditions does not transform their action
into a work stoppage or strike , since these contem-
plate a temporary withholding of services but not a
permanent severance of the employment relation-
ship . The three drivers intended to quit , announced
that they were doing so, and did not expect to be
able to return to work after Friday, February 17,
simply by withdrawing their resignations. Thus,
Helbig was under no obligation to induce them to
return after they quit , even though he may have
been secretly pleased that three union supporters
should choose to leave shortly before the scheduled
election . Did the Company violate Section 8(a)(3)
in refusing to allow the drivers to rescind their
resignations , thereby continuing in effect a situation
which it had done nothing to provoke ? The critical
issue is one of motivation : Why did Helbig refuse to
allow the drivers to return to work?
The Company asserts that the principal reason
for its ,refusal was because the three of them had
quit without adequate notice . A concomitant
reason was its fear that employees who have done
so once might do so again another time. Other
reasons which it says inclined it to reject their offer
to return were, with respect to Stockton and
Ceslok , that it regarded them as rather in-
adequate-not so unsatisfactory as to justify their
discharge, but not good enough to extend itself in
extricating them from the consequences of their
own hasty action . As for Clark, Helbig regarded
him as a better employee , but not worth taking
back at the risk of a possible charge of discrimina-
tion against the other two.
Winter testified that Helbig had told him before
the meeting that he suspected that the truckdrivers
were sympathetic toward the Union ; and Stockton's
statement to that effect at the February 15 meeting
corroborated it. Thus, the Company's knowledge of
their support of the Union is well established. The
General Counsel characterizes this knowledge as
animosity and distaste for the Union, basing it in
part on his assumption that the allegations of inde-
pendent violations of Section 8(a)(1) have been
proven . Two of them , in my opinion , have not
been proven-the allegation that Stockton was
threatened by Helbig in their conversation about
the Union and the former 's tardiness , and the al-
legation that Helbig or Winter threatened em-
ployees with a loss of existing benefits , and that
bargaining would start from scratch if the Union
got in . The remaining 8(a)(1) allegation has not yet
been considered , and this is the time for it.
It is based on a conversation between Stockton
and Foreman Van Blaricom on Sunday , February
19, in which the latter is said to have revealed that
the Company would not reinstate the three drivers
because they were union supporters . On Friday
NUTRENA MILLS 189
evening , February 17, Stockton had gone to Van
Blaricom 's home to engage in a few sets of table
tennis . Stockton used the occasion to ask his host if
he would get his job back , and Van Blaricom said
he didn 't know . Sunday afternoon the two again
played table tennis and went bowling . Stockton
again used the visit to sound out Van Blaricom
about getting his job back . He said he wanted to
come back even if it meant taking a reduction in
pay to do so. According to Stockton, Van Blaricom
then said , "Well, you realize that you are the three
guys that started this union business , and you know
we don 't want a union in there , now what would
you do if you was in our shoes ." According to Van
Blaricom , when Stockton asked him if he knew
whether he would get his job back , Van Blaricom
had said, "Well, with your past record, Bill, you
know it 's not too good , what would you do if you
were in my shoes." Van Blaricom also testified that
the next morning he told Helbig that Stockton ap-
peared sincere in wanting his job back, and that he
would be willing to give him another chance. Hel-
big then said he did not feel that he should take
Stockton back because of his tardiness , horseplay-
ing, and quitting without notice.
I believe Van Blaricom is to be credited over
Stockton . The two were not old friends , likely to
exchange confidences . Their socializing on Friday
and Sunday was, I feel , largely due to Stockton's at-
tempt to enlist Van Blaricom in his effort to get his
old job back, and in this he was partially successful,
since Van Blaricom was sufficiently swayed to
recommend his rehiring to Helbig . Van Blaricom
impressed me as a cautious person, not one to go
overboard in promising Stockton anything , and not
one to reveal to a former employee what his own
supervisor may have told him in confidence, even
assuming that Helbig had mentioned to him that his
true reason for refusing to rehire Stockton was the
latter's affiliation with the Union.
Even though I do not credit Stockton 's recollec-
tion that Van Blaricom had told him that it was his
support of the Union which made his reinstatement
unlikely, the issue of why Helbig refused to allow
the three drivers to return must still be decided.
In arguing that the Company was motivated by
the drivers ' support of the Union in refusing to rein-
state them , the General Counsel also relies on Hel-
big's remarks to Clark and Stockton on February
20 when he told them he would not take them
back, and on the asserted pretextual nature of the
Company's claim that it was dissatisfied with
Stockton and Ceslok 's work performance and its
claim that the notice to quit given by the drivers
was inadequate.
Helbig told both Clark and Stockton separately
on Monday , February 20, that he would not, in ef-
fect, allow them to rescind their resignations, but
that if they had not found anything in a couple of
weeks to come back after the whole thing had
blown over, and he would be happy to talk to them.
Ceslok did not testify that Helbig had said anything
to him about returning or calling back at any time
in the future. The General Counsel urges that Hel-
big's remarks were an invitation to return to work
for the Company after the election, when
presumably their sympathy for the Union would be
unavailing . The remarks are not as unambigous as
the General Counsel would have them. They may
refer to Helbig 's imputed intention to rehire them
after the election , but they may be nothing more
than a courteous and vague reference to the possi-
bility that something might be open for them in the
future. What objective facts there are seem to me
to preponderate in favor of the latter interpretation.
Helbig did not leave their jobs unfilled. He did what
he could to fill the gap immediately by transferring
two of his warehousemen to driving and by borrow-
ing a driver from a customer . He also placed a
newspaper advertisement for drivers , and was able
to hire replacements very soon thereafter . Thus, by
the time the Company was advised of the filing of
the charge and the withdrawal of the petition, Hel-
big had taken action which makes it appear unlike-
ly that he ever intended to leave Clark's or
Stockton 's positions open for them , without regard
to an election.
I come now to the Company's reasons for refus-
ing to reinstate the drivers , which the General
Counsel and the Charging Union characterize as
pretexts . The first is the Company 's claim that it re-
garded their notices to quit as inadequate . The em-
ployee handbook suggested that 2 weeks ' notice
should be given , whereas the drivers gave only 3
days' notice . As might be expected , the practice of
other employees varied widely . One employee had
quit without notice by not showing up for work and
not explaining his absence , while other employees
have given 2 or more weeks ' notice . Helbig might,
with reason , overlook a short notice which was
quickly withdrawn , in the case of one employee,
and feel differently when three employees do it
simultaneously.
The drivers had left Helbig in a hole when they
announced on Wednesday that they would not
work after Friday, and it is understandable if Helbig
felt no strong desire to help them out of their own
hole. People are sometimes swayed by such an
uncharitable notion as a desire to retaliate for the
trouble they have been put to . I think Helbig ex-
pressed some such resentment in a more acceptable
manner when he told the drivers that he would not
take them back because they might do the same
thing again . I consider it quite probable that Helbig
would have felt and acted the same way even if no
election were pending.
A great deal of time and effort was expended at
the hearing in supporting or refuting the Company's
claim that one of its reasons for refusing to rein-
state Stockton and Ceslok was their inadequacies as
employees . Much of this , in retrospect , seems to me
to be controversy over subsidiary issue . Without
analysing the testimony in detail , my conclusions on
this matter are that the Company would not, in the
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediate future , have discharged Stockton or
Ceslok for tardiness , horseplay , or other claimed
deficiencies in their attitude toward work or in their
performance . I am satisfied that Stockton and
Ceslok were fair , but in no way excellent, em-
ployees . They were , it seems to me , in the view of
the Company , good enough to retain , out of inertia
or a disinclination to discharge for minor deficien-
cies, but yet not so good as to overbalance the
other asserted reasons for not reinstating them.
Helbig and the other company people he con-
sulted after February 15, were undoubtedly aware
that the pending election , scheduled for early
March , would more likely result in a vote of the
employees against representation if Clark,
Stockton, and Ceslok were not eligible to vote. But
awareness and recognition of what might result if
these three were not reinstated is not proof that the
Company was motivated , even partially , in thereby
refusing to permit them to rescind their resigna-
tions . I have found that the Company displayed no
hostility to unionism generally or to this Union, and
that it has not otherwise interfered with , restrained,
or coerced its employees in the exercise of their
Section 7 rights . The Company did not act un-
reasonably by taking into account the manner in
which the drivers quit , the shortness of their notice,
the possibility of disruption of its business by
similar impetuous action , and their future value as
employees , and in then deciding that it did not want
them back . The General Counsel had a difficult
evidentiary problem in attempting to prove that all
of these considerations together would not have in-
fluenced the Company to reject their applications
for reinstatement , and that what actually swung the
balance was the Company 's objection to their vot-
ing for the Union . I am not satisfied that the
General Counsel has satisfied his burden of proving
that , but for the pending election , the Company
would have allowed the drivers to rescind their
resignations.
Finally , the Charging Union argues that the three
drivers " took the action they did " on February 15,
in order to protest their wages and working condi-
tions , and that the Company discriminatorily
refused to "retain " them because it was afraid that
sometime in the future they might engage in the ex-
ercise of a lawful protected right , that is , " to con-
certedly walk off their jobs again in order to protest
working conditions ." The argument depends on the
studied ambiguity of the phrases I have set out in
quotation marks . The action of the drivers on
February 15 was to announce that they were
quitting , that is, leaving their employment per-
manently . They may have done so in order to
protest their wages and working conditions, but
they did not demand that these be improved as the
price for their return. The Company, in fact, would
have run the risk of violating the Act if it had
granted them a raise while an election was pending.
The Charging Union then asserts that the Company
refused to "retain " them ( which bears the implica-
tion that they had not quit) because it feared that
having once engaged in concerted action they
might again walk off the job concertedly to protest
wages and working conditions . But if Helbig's
words are taken as an accurate reflection of his in-
tentions , he meant , as he said , that having once
walked off the job (by quitting) he was afraid that
the drivers might again walk off their jobs (by
quitting ). In refusing to reinstate them , Helbig
retaliated against them for quitting , and in order to
make it impossible for them ever to quit on him
again . I do not consider this to be reprisal for en-
gaging in a right protected by Section 7 of the Act.
Based on the foregoing , I hold that the General
Counsel has failed to establish , by a preponderance
of the proof , that the Respondent refused to rein-
state or rehire Stockton , Clark , and Ceslok because
of their support or sympathy for the Charging
Union . I shall, therefore , recommend the dismissal
of the complaint in its entirety.
CONCLUSIONS OF LAW
1. Nutrena Mills, Division of Cargill, Incor-
porated, is engaged in commerce and in activities
affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. General Drivers, Dairy Employees and Hel-
pers Union Local No. 579, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
The Respondent has not engaged in any unfair
labor practices as alleged in the complaint.
RECOMMENDED ORDER
It is hereby recommended that the complaint be
dismissed in its entirety.