Chesty Foods

National Labor Relations Board - Board Decisions

Jun 20, 1947

74 N.L.R.B. 255 (N.L.R.B. 1947)

In the Matter of GEORGE F. JOHNSON AND MARION D. JOHNSON,
D/B/A CHESTY FOODS a'nd UNITED MINE WORKERS OF AMERICA,
DISTRICT 50
Case No. 11-C-1264.Decided June 20, 1947
Mr. Clifford L. Hardy, for the Board.
dlr. William J. Flynn, of Chicago, Ill., for the respondents.
Mr. Joseph J. Timko, of Columbus, Ohio, and Mr. Elmer Whitman,
of Indianapolis, Ind., for the Union.
111r. Ben Grodsky, of counsel to the Board.
DECISION
AND
ORDER
On October 24, 1946, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, finding that
the respondents had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter , the Union filed exceptions to the Intermediate Report and
a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief of the Union, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon the basis of the foregoing findings of fact and the entire
record in the case, and pursuant to Section 10 (c) of the National Labor
Relations Act, the National Labor Relations Board hereby orders that
the complaint against the respondents, George F. Johnson and Marion
D. Johnson, d/b/a Chesty Foods, Terre Haute, Indiana, be, and it
hereby is, dismissed.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
74 N L R B., No 48
755420-48-vol 74-18 255
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. Clifford L. Hai dy, for the Board.
Mr. William J Flynn, of Chicago, Ill., for the respondents.
Mr. Joseph J. Tonko, of Columbus, Ohio; and Mr. Elmer Whitman. of Indian-
apolis, Ind., for the Union.
STATEMENT OF THE CASE
Upon a second amended charge filed on May 24, 1946, by United Mine Workers
of America, District 50, herein called the Union, the National Labor Relations
Board, herein called the Board, by its Regional Director for the Eleventh Region
(Indianapolis, Indiana), issued its complaint dated June 12, 1946, against George
F. Johnson and Marion D. Johnson, doing business under the firm name and style
of "Chesty Foods,"' herein called the respondents, alleging that the respondents
had engaged in and are engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint and amended charge together with notices of hearing thereon were
duly served upon the respondents and the Union
With respect to the unfair labor practices, the complaint, as amended without
objection at the hearing, alleged in substance: (1) that, on and since February
18, 1946, in violation of Section 8 (1) of the Act, the respondents have (a) inter-
rogated their employees concerning their membership in and activities in behalf
of the Union, (b) advised, urged, threatened, and warned their employees to
refrain from becoming or remaining members of the Union, and (c) made dis-
paraging and derogatory remarks to their employees concerning the Union, and
otherwise indicated to their employees their disapproval of and opposition to the
self-organization of the employees; (2) that, on or about March 7, 1946, in viola-
tion of Section 8 (1) and (3) of the Act, the respondents discharged Employees
Dorothy Coplin, Bertha Brown, Violet Harrold, and Mary T. Pollack, and have
since failed and refused to reinstate them because of their membership in, and
their activities on behalf of, the Union ; (3) that, in violation of Section 8 (1) and
(5) of the Act, the respondents on and since February 18, 1946, have refused
upon request to bargain collectively with the Union which was at all such times
the exclusive representative of a unit of the respondents' employees appropriate
for the purposes of collective bargaining.
In their answer, as amended without objection at the hearing, the respondents
admitted certain of the allegations of the complaint but denied the commission
of any unfair labor practices With respect to the discharges, the respondents
specifically denied that they "were prompted by any alleged activity or member-
ship in the Union," and asserted that the respondents "had no knowledge of
whether three of said employees . . . were active on behalf of the Union or even
members of the Union."
Pursuant to notice, a hearing was held in Terre Haute, Indiana, from July 1,
1946, to July 3, 1946, inclusive, before the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board and the respondents, appearing by
counsel, and the Union appearing by representative, participated in the hearing
and were afforded full opportunity to be heard, to examine and cross-examine
1 The charge and the complaint state that the respondents ' partnership does business as
"Chesty Foods Company." At the bearing herein, the undersigned granted an unopposed
motion of counsel for the Board to amend the complaint by striking the word "Company,"
from the partnership's name wherever it appears in the complaint.
CHESTY FOODS 257
witnesses, and to introduce evidence bearing upon the issues At the end of the
Board's case, the undersigned denied a motion of counsel for the respondents
to strike the complaint for lack of proof. At the end of the Board's case and at
the conclusion of the hearing, unopposed motions to conform the pleadings to
the proof in such minor matters as the spelling of names and dates were granted.
The hearing was closed after oral argument before the undersigned by counsel
for the Board and counsel for the respondents. Thereafter, pursuant to leave
granted to all parties by the Trial Examiner at the hearing, counsel for the
Board and counsel for the respondents filed briefs with the Trial Examiner.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
The respondents, George F. Johnson and Marion D Johnson, doing business as a
co-partnership under the firm name and style of Chesty Foods, are engaged at
their place of business in Terre Haute, Indiana, in the processing, sale, and dis-
tribution of potato chips, popcorn, and related products. The respondents' pur-
chases of raw materials, consisting of potatoes, corn, cooking oil, and syrups,
amount to approximately $10,000 per month, and its sales of finished products, to
approximately $20,000 per month. The souiees of more than 50 percent of the
respondents' raw materials, and the shipping destinations of approximately 50
percent of its finished products, are points outside the State of Indiana. In their
answer, the respondents admit that they are engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Mine Workers of America, District 50, is a labor organization admitting
to membership employees of the respondents.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A The setting of the alleged unfair labor practices
Between February 13 and February 20, 1946, 23 of the respondents' employees
joined the Union. On February 18, the Union informed the respondents by letter
that it represented a majority of their employees and requested a conference
"for the purpose of establishing the validity of our claim by such methods as are
provided by law." On February 20, the Union filed with the Board a petition for
the investigation and certification of the representatives of the respondents'
employees pursuant to Section 9 (c) of the Act. By letter dated February 21,
the Regional Director of the Board for the Eleventh Region requested the
respondents to submit pay-roll lists pertinent to the Union's petition. Again, on
February 25, 1946, the Regional Director by letter of that date suggested to the
respondents that a conference be held at the respondents' office on March 6, 1946,
concerning the matters raised by the Union's petition
Although the respondents never answered the letter received by them from
the Union, they furnished the pay-roll information requested by the Regional
Director and, on March 6, 1946, during working hours, the respondent George
Johnson, Charles Sturm (his plant manager), and William Flynn (his at-
torney) met with representatives of the Board and of the Union at the re-
spondents' office. At the beginning of the meeting, the Union requested the
presence of Employees Dorothy Coplin, Nina Watson, and Fern Thomas as
recently elected representatives of the Union-a request which the respondents
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused unless all employees were permitted to attend 2 During the course of the
conference, the Field Examiner attending for the Board stated that an election
would have to be held.
On the following day, March 7, 1946, the respondents discharged Employees
Dorothy Coplin, Bertha Brown, Violet Harrold and Mary, T. Pollack under
circumstances which will be discussed hereinafter. On the next day, March 8,
1946, the Union filed charges with the Board pursuant to Section 10 of the
Act, alleging in substance that the respondents, by these discharges and their
refusal to reinstate the employees in question, discriminated against the em-
ployees with respect to their hire and tenure of employment because of their
membership in and activities on behalf of the Union, and also that the re-
spondents by this and other conduct interfered with, restrained, and coerced
their employees in the exercise of the rights guaranteed in Section 7 of the
Act. On the same date, March 8, 1946, the Union filed with the Regional
Director for the Board a signed statement that "we hereby waive the charge
[of unfair labor practices filed the same date] . . . as a basis for objection
for any election which may be conducted in Case No 11-R-950 [the representa-
tion case initiated by the Union's petition]."
Thereafter, on March 19, 1946, during a hearing held before a duly designated
Trial Examiner of the Board in the representation proceeding, the Union and
the respondents (1) stipulated that all production and maintenance employees
of the respondents at their Terre Haute, Indiana, plant, excluding office and
clerical employees, and all supervisory employees with authority to lure, pro-
mote, discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constituted a unit appropriate
for the purposes of collective bargaining, and (2) executed and submitted to
the Board an agreement providing that the Regional Director should super-
vise an election by secret ballot among the employees in this appropriate unit
to determine whether or not they desired to be represented by the Union.
On April 1, 1946, the Union, by telegram addressed to the Regional Director.
withdrew from the election in the representation proceeding "because of inter-
ference by the company with the employees of the Chesty Food Co " 3 Since
that time, the Union has never requested the respondents to bargain. the peti-
tion of the Union in the representation proceeding has never been reinstated,
the proposed election has never been held, and until the hearing in the present
proceeding, the Union has never ollered proof that it represented a majority
of the employees m the stipulated appropriate unit.
B. The alleged discrimination, interference, restraint, and coercion before the
consent election agreement
From approximately December 5, 1945, the date the plant was opened, until
March 7, 1946, the date of their simultaneous discharges. Dorothy Coplin,
Bertha Brown, Violet Harrold, and Mary T. Pollack were employed by the
respondents as packers During this time, the respondents employed a total of
16 packers, divided into crews of 4 girls, each crew working at a common table
and as a separate unit. Throughout the entire period of their employment,
Coplin, Harrold, and Brown worked on the same crew. In the middle of February
2 At the hearing counsel for the Board specifically denied any contention that the re-
spondents ' refusal in this respect constituted an unfair labor practice within the meaning
of the Act
3 On June 4, 1946 , the Union filed a formal request for the withdrawal of its petition in
the representation case on which the Regional Director endorsed his approval.
CHESTY FOODS 259
1946, at about the time the Union began organizing the employees, Pollack became,
and thereafter remained, the fourth member of the crew.
It was the job of this crew, as well as of the other crews, to fill, weigh, and
staple retail bags with the respondents' potato chips or popcorn and then to pack
the bags in shipping cartons which were later sealed by the respondents' "floor
lady." i One crew member scooped the potato chips or popcorn into the bag or
package ; the second weighed the filled bag, adding or subtracting from the con-
tents to leave only the required weight in the bag; and the third and fourth girls
on the crew folded and stapled the tops or mouths of the bags and packed the bags
in the shipping carton. Each member of the packing crew performed every one
of these tasks in rotation, with shifts from task to task occurring approximately
every hour. The speed at which the crews customarily worked may be gauged by
the fact that, in the case of 1% ounce bags of potato chips which were packed 36
to a shipping carton, each crew packed from 13 to 18 cartons per hour, thus
devoting only from 6 to 7 seconds to each bag.
Coplin, Brown, and Harrold joined the Union on February 13, 1946, and Pollack
joined the following day. Of the four of them, only Coplin played a role of any
prominence in the Union's activities. It was she who issued the Union's member-
ship cards to the other employees, collected their initial dues, and gave receipts
therefor. Furthermore, at the conference between the Board's, the Union's, and
the respondents' representatives on 'larch 6, the day before her discharge, she
was one of the three employees -whom the union representatives requested the
respondents to summon from their work so that they might also be present as the
Union's recently elected local officers.
Before this last mentioned incident, however, Coplin's activity in soliciting
union memberships among her fellow employees had already come to the re-
spondents' notice. According to the uncontradicted testimony of Warren
Behringer, who was employed as a cook, Coplin called him into the stock room
during working hours one afternoon in February and, in an argument which
lasted 20 minutes, unsuccessfully sought to persuade him to join the Union.
Questioned by Manager Sturm as to why he had left his popcorn machine idle
during that time, Behringer replied that Coplin had called him into the stock
room where they had had an argument about the Union F After telling Behringer
never to leave his machine again, Sturm reported the matter to the respondent
George Johnson and also spoke to Coplin alone, later that afternoon. Johnson,
too, spoke to Coplin the next day while she was at work with other members of the
crew at their bench.
The testimony is in conflict as to the substance of the remarks made by
Sturm and Johnson in their separate conversations with Coplin on these two
occasions. Coplin testified that Sturm asked her whether she was not satisfied
with her job, and upon her affirmative answer, charged her with being the "be-
ginning of this Union," which Coplin denied. According to Coplin, Sturm there-
upon said he was "glad" to hear her denial. As to Johnson's remarks the next day,
Coplin, Harrold and Brown,' testified that Johnson said, "I hear you girls want
4 Despite the possible implication of her title , the "floor lady" possessed no supervisory
authority.
s This finding is based upon Behruiger ' s testimony . Sturm stated in his testimony that
he did not "believe" Behringer had informed him of the subject of discussion with Coplin
but, then , in substance , that his memory was not certain on that particular point. In any
event, the respondent George Johnson readily admitted, when testifying as to Sturm's
report to hint of the incident , that from "the way [Sturm ] described it, I thought it was
Union talk"
6 Pollack , although a witness at the hearing , did not testify as to this conversation.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
a Union" ; that Coplin countered, "Do we?" that Johnson continued, "You ought
to know. What is your name?" and that upon Coplin's identifying herself, John-
son smilingly concluded the conversation with the comment, "You signed cards."
According to Brown, Johnson also asked them why they had not told him they
wanted a union. In their testimony as to the statements thus attributed to
them on these two occasions, Sturm and Johnson both denied that they had done
any morn than warn Coplin against leaving her work or causing other employees
to do so. Although Johnson testified that he suspected Behringer's and Coplin's
conversation had been "union talk" and that he opened his remarks to Coplin
by saying, "I hear you girls want a Union," he testified that he then said, "that
is none of my business anyway. I just wanted to tell you you stick to your
table and quit wandering all over the place and engaging other people in
conversation."
In view of Behringer's uncontradicted testimony concerning his conversation
with Coplin which interrupted their work, and the rebuke he received from Sturm
therefor, the undersigned is convinced, and finds, as Sturm and Johnson testified,
that Sturm's and Johnson's remarks to Coplin were also prompted by Coplin's
leaving her work during working hours and causing Behringer to do likewise and
that on these two occasions, Sturm and Johnson in fact reprimanded her for her
conduct in this respect. The failures of Coplin, Harrold, and Brown, in their
purportedly complete versions of Johnson's remarks even to mention--much less
to deny-that Johnson thus reprimanded Coplin cast serious doubt upon their
testimony as to what Johnson said about Coplin's union activity and also upon
Coplin's testimony as to what Sturm said on the same subject the previous day
The undersigned, therefore credits Sturm's and Johnson's testimony as to their
remarks to Coplin and furthermore finds that Johnson's admitted statement that
he understood the girls wanted a union, coupled as it was with his express dis-
claimer of any interest or desire to interfere, did not constitute interference
with, restraint, or coercion of the employees in the exercise of their rights to
self-organization and to bargain collectively, within the meaning of the Act.
Manager Sturm and the respondent George Johnson testified that (luring Feb-
ruary 1946, they both criticized Coplin, Harrold, Brown, and Pollack as a crew
for shortweighting two-ounce bags of popcorn as a result of weighing the bags
with the beam weight of their scale set at 13/4 ounces instead of 2 ounces, and that
on March 7, 1946, 4 days after they had returned to packing potato chips, Sturm
discharged the entire crew because his inspection of their work that morning
disclosed that they were overweighting 13/.r ounce bags of potato chips by as much
as '/_, ounce, that their scale was set for 2 ounces (as it had been when they
were packing popcorn) instead of 1% ounces, and that their stapling and folding
of the bags were extremely poor. Sturm testified that he called all this to the
attention of the four girls, that he received no explanation from them, that he
immediately reported the situation to Johnson, and that upon Johnson's agreement
with his suggestion, he went back to the girls and discharged them.
With respect to the February incident, Coplin, Harrold, and Brown testified
that Sturm never told them that they were shortweighting popcorn. Coplin
testified that on one occasion when Sturm said a bag of popcorn appeared to be
overweight, he weighed the bag and found it to be "right on the dot." But
Harrold and Pollack testified that on occasions Johnson and Sturm told them
to put more than 2 ounces in the popcorn bags, and Brown further testified that
Sturm told her he would rather have the bags overweight than underweight.
With respect to the circumstances of their discharges on March 7, 1946, Harrold,
Pollack, and Brown testified that their scale was properly set at 13/4 ounces that
CHESTY FOODS 261
morning. Coplm testified that when Sturm weighed a bag in their presence, he
stated that it weighed "right" and the scale was "all right." Brown testified
that Sturm said that although the crew's bags were overweight, that was the
way he liked them. Harrold, however, quoted Sturm as saying "this is too
much weight." According to all four of the employees, Sturm told them that
their stapling was bad either through "ignorance or spite" and that the entire
crew was discharged because he could not ascertain which of them was at fault.
Sturm's and Johnson's decision to discharge the girls followed Sturm's exam-
ination and weighing of a number of the bags from one of the 63 cartons packed
by the crew that morning and stacked alongside their table. After he discharged
the girls, he removed and examined bags taken at random from 6 more of their
cartons. The remaining 56 cartons packed by the girls were put in stock and
presumably disposed of in the regular course of business. Both before and after
the discharges, Sturm called the floor-lady and the girls working on the other
crews to look at the bags which he had set aside According to the testimony
of Employee Nina Watson, a packer and a member of the Union, "some of it was
stapled backwards, some of it was pleated, and it was awful, some of it." Florence
Beal, another packer and union member, also testified that, "the work was bad,
stapled wrong, and pleated. There was some holes in the bags."
After this general random inspection, Sturm had the first carton sealed with
the identical 36 bags packed therein by the discharged crew, and then, upon
Johnson's instructions to "preserve the evidence" as to the reason for the dis-
charges, Sturm had the girls of the other crew, who had also been packing 13/4
ounce bags of potato chips that morning, sign their names on the seal to indicate
that they had not packed that particular carton Sturm also packed and sealed
two other cartons with the packages he had taken at random from the other
six cartons inspected by him One of these two cartons having been inadvertently
watersoaked when the janitor mopped the floor of the respondents' office,
the other carton and the one sealed with the signatures of the employees on the
other crew, were later made available for inspection by the Union's representa-
tive, Elmer Whitman, at the respondents' office on March 19, 1946, the date of
the hearing in the representation case, and were also produced and identified at
the hearing by Sturm. On the former occasion, while Johnson told Whitman
that the sealed cartons contained the poor work of the discharged crew, he did
not remove the seal, nor did Whitman ask him to do so.
On the production at the hearing, of the 72 bags from these 2 cartons, the parties
stipulated that in lieu of their introduction in evidence as exhibits, they might
be examined and weighed in the presence of the undersigned, with the testimony
of Sturm as to each package, the observations of the undersigned, and the com-
ments of counsel noted on the record. All but 7 of the 72 bags were overweight
with 47 weighing 2 ounces or more.' Furthermore, 34 of the 72 bags were criticized
by Sturm in his testimony as being poorly stapled and folded. From his inspec-
' The distribution of the 72 bags according to their weight was as follows :
1 bag weighed 31/4 ounces or 11/2 ounce overweight.
1 bag weighed 23/4 ounces or 1 ounce overweight
3 bags each weighed 21/ ounces or 3/ of an ounce overweight
7 bags each weighed 23/8 ounces or s ounce overweight.
16 bags each weighed 21/4 ounces or 1/-, ounce overweight.
19 bags each weighed 23/8 ounces or 3/8 ounce overweight.
10 bags each weighed 2 ounces or 1/4 ounce over eight
8 bags each weighed 1 %s ounces or 1/8 ounce overweight.
6 bags each weighed 13/4 ounces or accurate weight.
1 bag weighed 1%8 ounces or 1/8 ounce shortweight.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the bags during Sturm's testimony, the undersigned disagrees with him
only in two cases.
Upon this evidence concerning the circumstances of the crew's discharge and
the alleged similar previous instance of their underweighting popcorn bags be-
cause of their misadjustment of their scale, the question of whether the dis-
charges were due to the union activities of any of the members of the crew or
due to their poor work, is an extremely close one. On the one hand, a number
of factors tend to support the former conclusion. Thus, the discharges occurred
on the day following the Union's disclosure to the respondent that Coplin was
one of its important leaders among the employees Furthermore, the discharge
of all four of the crew members without attempting to ascertain whether the
individual fault of one or several of the crew members was responsible for the
poor work, raises the argument that the respondents were intent upon fastening
the blame upon Coplin, the known union leader, so that she might be discharged,
and feared that an investigation might show her to be blameless. Then, too,
the precaution of Johnson and Sturm to "preserve the evidence" of the reason
for the discharges in the form of specimens of the work of the crew that morning,
indicates at least a consciousness on their part that the discharges might be
interpreted as discriminatory under the circumstances of the case. Finally, the
sale of the potato chips packed in the other cartons by the girls of the crew that
morning might be taken to show that the respondents did not regard the work of
the crew as being so bad that it would ordinarily have led to the discharge of
these girls.
But the record affords plausible explanations or answers to each of these
arguments Of the four employees discharged, only Copliii appears to have
been known to the respondents as a union member Since all four discharged
employees had admittedly performed each of the crew's tasks at various times
that morning, it would have been impossible to ascertain which, if not all, of
them was responsible for the overweighting and poor packaging and it would
therefore not seem unreasonable, particularly in view of their failure to give
an explanation, to hold then reslonsible as a unit. As to the "preservation" of
the evidence, the respondents had been apprised of the Union's campaign and
of the representation proceeding initiated by it, and had just learned of Coplin's
union leadership. Apprehension that Coplin's discharge might give rise to a
complaint of discrimination, difficult to meet, was surely understandable as was
also the respondents' precaution to provide an answer to such a charge. Finally,
as Johnson testified, the sale of most of the overweight cartons packed by the
crew that morning, constituted less of a loss than would have been involved in an
attempt to repackage the potato chips.
With these various arguments and counter-arguments thus tairly well balanced,
it is the opinion of the undersigned that the answer to the ultimate question of
whether the respondents in fact discharged the crew members because of the
union activities of any of them or because of their poor work, depends in the
last analysis upon a determination from the evidence whether the grounds as-
serted by the respondents for the discharges in fact existed According to the
respondents, and contrary to the testimony of the four discharged crew mem-
bers, the latter had on two occasions misweighed the respondents' product be-
cause of their failure to set their scale properly. In the second case, the re-
spondents produced the bags which they assert were packed and weighed by the
crew in question. While the signatures obtained from the members of the
other crew on the seal of one of these cartons'cannot be regarded as furnishing
any substantial support for this assertion, the undersigned perceives no reason
CHESTY FOODS 263
to doubt Sturm 's positive identification of these packages in his testimony. Since
all but 15 of these 72 bags weighed more than 2 ounces, the undersigned believes
and finds , as Sturm testified , that the scale of the crew in question had been set
at 2 ounces instead of 1% ounces . Moreover, the undersigned further finds,-
again upon the basis of Sturm's testimony and contrary to that of the four girls-
that the same crew had previously overweighed bags of popcorn as a result of
a similar careless misadjustment of their scale The other ground asserted
by the undersigned for the discharges is equally well proved by the evidence of
the crew's poor packaging on the morning of the discharges as shown by the
packages themselves when produced at the hearing and the testimony of the two
union members , Watson and Beal , that the work was bad. The undersigned
therefore believes , and finds , that the carelessness of the crew in packaging potato
chips on the morning of their discharges and their carelessness in weighing the
respondents ' product on that and on a prior occasion were not only proved
by the evidence but in fact constituted the reasons for the discharges.
Upon all the evidence , the undersigned , therefore, concludes and finds (1)
that the respondents discharged Dorothy Coplin, Bertha Brown , Violet Harrold
and Mary T . Pollack because of carelessness in their work and not because of
union activities ; (2) that the respondents did not, therefore , discriminate against
these employees in regard to hire or tenure of employment within the meaning
of the Act; and (3) that the respondents , up to and including the time of these
discharges , did not interfere with, restrain , or coerce their employees in the
rights guaranteed in Section 7 of the Act.
C. The alleged refusal to bargava and farther alleged tinterference, restraint, and
coercion subsequent to the consent election agi eeiment
1. The appropriate unit and the Union's representation of a majority of the
employees therein
In accordance with the terms of the agreement of March 19, 1946, between
the respondents and the Union providing for the conduct of an election under
the supervision of the Regional Director of the Boaid for the Eleventh Region the
undersigned finds that all production and maintenance employees of the respon-
dents at their Terre Haute, Indiana, plant, excluding office and clerical em-
ployees, and all supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or effectively
recommend such action, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act.
According to the respondents' pay-roll records, they employed 35 persons as
production and maintenance employees in this appropriate unit during the week
ending February 16, 1946, and 22 persons (not including Coplin, Brown, Harrold,
and Pollack) in the same appropriate unit during the week ending March 23,
1946. the pay-roll period fixed by the consent election agreement as determinative
of voting eligibility. As has already been noted, 23 of the respondents' employees,
including Coplin, Brown, Harrold, and Pollack, joined the Union between Feb-
ruary 13 and February 20, 1946. All except 1 of these 23 union members worked
as non-supervisory production and maintenance employees during the week end-
ing February 16, 1946. Thereafter, union members Coplin, Brown, Harrold, and
Pollack were discharged and one other union member's employment terminated
under circumstances not revealed by the record, thus leaving 17 union members
in the appropriate unit by March 23, 1946. The undersigned therefore finds that
on and since February 20, 1946, the Union has been, and is, the duly designated
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining representative of a majority of the employees in the aforesaid appro-
priate bargaining unit.
2. The alleged refusal to bargain and further alleged interference, restraint,
and coercion
As has already been noted , the Union filed a petition with the Boas d for an
investigation and certification of the representatives of the respondents' em-
ployees on February 20, 1946, only 2 days after it had advised the respondents
that it represented a majority of their employees and that it desired a conference
"for the purpose of establishing the validity of our claim by such methods as are
provided by Law." The respondents, at the request of the Board ' s Regional Di-
rector, thereafter furnished the pay-roll lists of their employees and on March
6, 1946, conferred with the Union ' s representatives and a Board representative
concerning the Union 's petition and the necessity for holding an election in the
Union to determine whether the employees desired to be represented by the Union.
The undersigned is of the opinion , and finds, that, although the respondents never
answered the Union 's letter, they did in fact fully comply therewith by cooperat-
ing with the Board's representative in furnishing the pay -roll intormation and
by meeting with the Union ' s representatives on March 6, 1946.
Thereafter on March 19 , 1946, as has also been noted , the Union and the
respondents entered into an agreement with the Board 's approval , providing for
an election among the employees in the appropriate unit, to be conducted under
the supervision of the Board ' s Regional Director. Having also waived any ob-
jections to the outcome of the election which might otherwise have been based
upon the discharges of Coplin, Brown, Harrold , and Pollack on March 7, 1946,
or any other unfair labor practices alleged in the charges filed by the Union on
March 8, 1946, the Union thus assented to the holding of the election for the pur-
pose of establishing the fact that it represented a majority of these employees,
notwithstanding any of the prior alleged unfair labor practices . With both the
parties in agreement as to the mode of ascertaining the Union 's status , the re-
spondents were certainly under no obligation to bargain collectively with the
Union unless and until either ( 1) the Union had won the agreed upon election
or (2) the respondents committed unfair labor practices which precluded the
possibility of a free uninfluenced election , which indicated a determination not
to bargain with the Union , and which thus justified the Union' s cancelation of
the election .' Consequently , in the present case , the answer to the question of
whether the respondents committed an unfair labor practice by failing to bargain
collectively with the Union , turns upon whether the respondents by any conduct
on their part precluded the possibility of a free choice of representatives in the
scheduled Board election.
The undersigned has already found that neither the discharges of Coplin,
Brown, Harrold, and Pollack , nor any other action on the part of the respondents
prior to the execution of the consent election agreement , constituted unfair labor
practices within the meaning of the Act. However, the Union 's representative
expressly stated.at the hearing that its withdrawal from the election was based
not upon these discharges or any other unfair labor practices before the execu-
tion of the consent election agreement but rather upon alleged interference which
occurred thereafter.
The record reveals only two possible instances of such interference , consisting
of statements alleged to - have been wade by Manager Sturin to Employee Nina
8 Matter of Prigg Boat Works, 69 N. L R. B 97.
CHESTY FOODS 265
Watson. Watson, it will be recalled, was mentioned by the Union's representa-
tive as one of its leaders during the conference with the respondents' representa-
tives on March 6. She also accompanied union representative Whitman when
the latter visited the respondent Johnson at his office on March 19, 1946, the
day of the representation hearing, to discuss the reasons for the discharges of
the four crew members. According to her testimony, Sturm told her on the fol-
lowing day, that, contrary to statements he understood she had made to other
employees, the respondents had not recognized the Union and that he wanted
"the Union talk stopped." Again, according to Watson's testimony, Sturm
charged her a week later with talking with Fern Thomas about they Union in the
ladies' restroom during 5 minutes rest periods, and told her she had "no right to
talk about the Union on the premises," and that, if she persisted in doing so,
she would be discharged. In her testimony, however, Watson stated that she
was worried about losing her job and had talked to the other girls about that
possibility. Although she denied speaking to Sturm about this, she admitted his
later telling her that, whatever the outcome of the election, she "would always
have employment with the Company as long as she did her work." Al-
though Sturm did not testify 'specifically about these alleged conversations with
Watson, as he did about his previous remarks to Coplin, which have already been
discussed, he categorically denied discussing union activities with any em-
ployee. It should be noted in- this connection that during his examination by
counsel, Sturm's attention was not directed to Watson's testimony as it was to
Coplin's testimony. Furthermore, when Board's counsel, during argument at
the conclusion of the hearing, stated in response to a question put by the under-
signed, that Sturm's alleged remarks to Watson were the only directly proved
interferences of the respondents with the union activities of their employees after
the execution of the consent election agreement, counsel for the respondents as-
serted that he did not recall that testimony. Under the circumstances, the un-
dersigned is not inclined to regard Sturm's failure to snake a specific denial of
Watson's testimony as tantamount to an admission of its truth, but rather to
weigh his general denial of having had any discussions of union activities with
any employee against Watson's testimony of the specific instance to the con-
trary In doing so, the undersigned is mindful of, and relies upon, the fact
that as to every other instance in which the respondent's conduct or that of
Sturm was questioned, there was apparently no basis for the complaint and
Sturm's pertinent testimony was credible. The undersigned, therefore, credits
Sturm's denial that he ever discussed union activities with any employee as
against Watson's testimony as to his'remarks to her concerning that subject.
There is thus an absence of credible proof warranting any finding that the
respondents either prior to, or subsequent to, the execution of the consent elec-
tion agreement interfered, with, restrained, or coerced their employees in the
exercise of their rights guaranteed in the Act, or that, therefore, the respondents
by conduct or statement either refused, or indicated that they would refuse, to
bargain with the Union when and if the Union's proffered proof of its majority
by election or otherwise was forthcoming. The Union, on the other hand, has
failed to justify its withdrawal from the election or to demonstrate to the re-
spondents in any other manner, prior to the hearing herein, the fact that it had
been designated as bargaining representative by a majority of the employees in
the appropriate unit. Under the circumstances, the mere failure of the respond-
ents to bargain collectively with the Union cannot be held to constitute a refusal
to bargain within the meaning of the Act. The undersigned therefore finds (1)
that the respondents have not, refused to bargain collectively with the Union
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of the Act and (2) that the respondents have not interfered
with, restrained, or coerced their employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1 The respondents are engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
2. United Mine Workers of America, District 50, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. At, all times material herein, all production and maintenance employees
of the respondents at their Terre Haute, Indiana, plant, excluding office and
clerical employees, and all supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, have constituted, and now consti-
tute, an appropriate unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
4 On or about February 20, 1946, and at all times thereafter, the United
Mine Workers of America, District 50, has been the exclusive representative
of the employees in the above appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
5. The respondents have not engaged in unfair labor practices within the
meaning of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact, conclusions of law, and the
entire record in the case, the undersigned hereby recommends that the com-
plaint herein be dismissed in its entirety.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203 38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington 25, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof,; and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support of the Intermediate Re-
port. Immediately upon the filing of such statement of exceptions and/or
briefs, the party or counsel for the Board filing the same shall serve a copy
thereof upon each of the other parties and shall file a copy with the Regional
Director. Proof of service on the other parties of all papers filed with the
Board shall be promptly made as required by Section 203 65. As further pro-
vided in said Section 203 39, should any party desire permission to argue orally
before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of service of the order transferring the
case to the Board.
WILLIAM F. SCHARNIKOw, ^
Trial Examiner.
Dated October 24, 1946.