Cook Chocolate Co.

National Labor Relations Board - Board Decisions

Jul 20, 1962

137 N.L.R.B. 1517 (N.L.R.B. 1962)

COOK CHOCOLATE COMPANY 1517
and Section 2 (6) and (7) of the Act, and shall direct an election in the
following unit which we find to be appropriate for the purposes of
collective bargaining within Section 9 (b) of the Act : 2
All production and maintenance employees at the Employer's two
Dayton, Ohio, plants, including shipping clerks, janitors, and truck-
drivers, but excluding office clerical employees, salesmen, guards, pro-
fessional employees, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
9 The appropriateness of the unit was stipulated by the parties.
Cook Chocolate Company and Miscellaneous Warehousemen and
Production Employees ' Union , Local No. 781 , I.B. of T. Case
No. 13-CA-4515. July 20, 1962
DECISION AND ORDER
On April 5, 1962, Trial Examiner Arthur E. Reyman issued his.
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in unfair labor practices as alleged
in the complaint and recommending dismissal of the complaint in its
entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Re-
port and a supporting brief. The Respondent filed a brief in support
of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
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 briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended , 29 U.S.C. 151, et seq., herein called the Act.
Miscellaneous Warehousemen and Production Employees' Union , Local No, 781,
I.B. of T. ( International Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America ), herein sometimes called the Union or Local No. 781, having
137 NLRB No. 168.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on November 1, 1961, filed a charge against Cook Chocolate Company, herein some-
times called the Respondent, the Company, or the Employer, the General Counsel
of the National Labor Relations Board, on behalf of the Board, by the Regional
Director for the Thirteenth Region, on December 18, 1961, issued a complaint and
notice of hearing against the Respondent, alleging that by certain acts set forth in
the complaint the Respondent had engaged in and is engaging m unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the Act. On December 28,
1961, the Respondent filed an answer to the complaint, effectively denying the alleged
violations and setting up an affirmative defense, discussed below.
On the issues framed by the complaint and the answer, this case was heard before
Trial Examiner Arthur E. Reyman at Chicago, Illinois, on January 29, 1962, and
was concluded and closed on the following day. At the hearing, all parties were
represented by counsel, each party was afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence pertinent to the issues,
and each was afforded opportunity to argue orally upon the record, to file proposed
findings of fact and conclusions or both, and to file briefs. Briefs have been sub-
mitted by counsel for the General Counsel and counsel for the Respondent.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF COOK CHOCOLATE COMPANY
Cook Chocolate Company, is, and has been at all times material herein, a corpora-
tion duly organized under, and existing by virtue of, the laws of the State of Illinois,
and at such times has maintained its principal office and plant at Chicago, Illinois,
at which it is now and at all such times has been engaged in the manufacture, sale,
and distribution of chocolate products and related products.
During the calendar year 1961, the Respondent in the course and conduct of its
business operations, manufactured, sold, and shipped goods valued at in excess of
$50,000 from its Chicago, Illinois, plant to States in the United States other than the
State of Illinois.
The Respondent is now, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Miscellaneous Warehousemen and Production Employees' Union, Local No. 781,
I.B. of T., is now, and has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
The employees involved here were employees in the Company's cocoa department.
Edmond Opler as president of the Company holds its highest executive position.
Roy Berg, plant production manager, is in overall charge of the production of the
Company, and Eugene Kocimski, assistant superintendent, has charge of the produc-
tion in the cocoa department.
The General Counsel contends that Walton Willis is, and during the times ma-
terial herein, was the foreman in charge of the first shift in the cocoa department
and as such is and was a supervisor within the meaning of the Act. This is denied
by the Company. The complaint asserts that Kocimski on or about October 24, 1961,
and Walton Willis, on or about October 27, 1961, threatened the employees of
Respondent with discharge or other reprisal if they became and remained members
of the Union, or gave any assistance or support to it. The complaint alleges further
that on or about October 27, 1961, the Company did lay off Jack Vance, Jr., Benny
Saxon, William O. Shumpert, James Carroll, Rogers Chalmers, John C. Willis, and
Willie Bryant for the reason that these employees joined or assisted the Union or
engaged in other union concerted activities for the purpose of collective bargaining
or other mutual aid and protection. The Respondent in its answer denied that it had
engaged in such activities, denied that Walton Willis was its foreman or supervisor
within the meaning of Section 2(11) of the Act, and asserted he was and is an
ordinary laborer in its employ. The Respondent says further that the employees
named in the complaint, constituting an entire shift of the cocoa department, were
dismissed for valid business reasons, namely, that the cocoa sales of the Respondent
had declined and no longer justified the retention of three production shifts in this
department.
COOK CHOCOLATE COMPANY 1519,
A. Walton Willis not a supervisor
A laboratory technician is on duty on each shift. Every 30 minutes, a basic check
for quality and texture of the product is made. A sample is taken from each mill
in the cocoa plant sent through a pneumatic tube to the laboratory for analysis. As
the cocoa in process progresses to the blenders, a sample is taken from every 10th
bag and sent to the laboratory for analysis. A report on each sample is made in
from 10 to 20 minutes to determine whether the product is up to specification. If
the report is unsatisfactory an adjustment in the cocoa is made either at the mill or
the blender.
Berg, on the basis of orders received, furnishes to Kocimski a schedule for pro-.
duction including specifications concerning the type or kind of product to be made.
Kocimski oversees the work on all three shifts in the cocoa plant or department;
from production records and by reference to the laboratory records he is able to
determine the type and kind of production from day to day and from shift to shift
and also the volume of production. Once the operation is set up for a certain speci-
fication or type of product, he said, the operation as an operation more or less
runs by itself although Walton Willis, as well as the other leadmen on the other
shifts, are there to watch the operation and to make necessary corrections on inspec-
tion results obtained from the laboratory in the event adjustments need to be made.
Kocimski decides how much is to be run, instructs Walton Willis accordingly, and if
the schedule is completed during the course of Willis' shift he will stop production
and notify Kocimski, who then issues instructions for further production, either on
the same or different specification and order.
Both Willis, as a witness called by the General Counsel,' and Kocimski, a witness
called by the Respondent, testified that in the absence of Kocimski, Berg assumes the
responsibility of overseeing the work in the cocoa department and that Willis, either
under the supervision of Berg or Kocimski, simply carries out the detailed instruc-
tions given to him as the type of product running and what to do in the event an
adjustment is needed. Willis has been employed by the Respondent for some 11
years and is the most exeprienced of any shift employee concerning the proper ad-
justments which from time to time are made in a particular cocoa run. Concerning
his duties, Walton Willis testified:
.. . if a man is -absent, I take his job and carry it on. Out of nine men, when a
man is not present, I take either one of the jobs over and do it; I see that every-
thing stays in order. I walk out and check different things, different machinery,
see to the pH on the cocoa lines-alkalize-that the alkalize is made right and
that the fineness of the product is correct .. . .
Kocimski transmits orders to Willis as to what is to be produced, and Willis carries
out those orders and informs the other men on the shift as to what those orders are.
He testified that when all of the other nine men are at work, it still is his duty-
to check over everything to see that everything is all right and keep them
running all right . if there is nothing but cleaning, I see to the cleaning, and
maybe I have to take the truck and go over to the other building and get stuff
from over there and bring it back.
With regard to schedules being run, in summary, Willis and Kocimski both agreed
that Willis checks Kocimski with regard to the quality of production, and he gets
his orders from Kocimski who has received them from Berg; that Kocimski gener-
ally advises him orally in regard to the orders to be run, what changes are to be
made on a particular day or at a particular time, and that when Kocimski "gets
enough of one order, he comes and tells me to change over to something else "
Willis is paid at an hourly rate and receives a differential in the way of higher hourly
rate of pay than the other employees in the cocoa department.
The General Counsel contends that Willis has the authority to stop and start
production of the various items processed. This is not "authority" in the true sense,
since Willis is simply performing a function delegated to him by Kocimski or Berg.
The General Counsel argues, too, that Willis has authority to assign employees to
various jobs and to transfer them during the course of the work shift. This is not an
accurate statement. Among his duties, he is required to see that employees are at
work on their various jobs and not to transfer them but to inform them at times
during the course of the work shift where they are to be placed. Again, when the
General Counsel says that he has told the temporary employees that they would no
longer be needed at the plant, the General Counsel overlooks that such informa-
I Walton Willis was also called as a witness on behalf of the Respondent.
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion is conveyed by Willis at the instruction of higher authority and that he himself
had nothing to do with the decision to lay off or terminate the employment of
temporary employees . The General Counsel says that Willis has recommended the
hiring of an employee and subsequently indicated to the employee that his efforts
resulted in the hiring . Actually, in this isolated case of Bryant, a temporary em-
ployee furnished by an employment agency, Willis recommended to Berg that in the
event of an opening on one of the shifts, Bryant would be able to handle the job
as an unskilled worker on a shift . Eventually, when a vacancy did occur, Berg hired
Bryant.
The Company had used an employment agency, referred to as Manpower, over
a number of years for specific jobs that came up from day to day, mostly unskilled
such as clearing railroad tracks of snow and ice, sprinkling calcium chloride in
parking lots, sprinkling cinders, unloading freight cars to avoid demurrage, and for
other common labor. Manpower men were from time to time brought into work
with the Company's men in the shipping or receiving departments. Manpower em-
ployees would help with loading, unloading , and plant maintenance . The Com-
pany used Manpower men on a temporary basis so that it was not required to keep
records for social security, withholding tax, or to engage in other incidental account-
ing practices . Manpower employees did not punch timecards. President Opler
testified that no temporary help from Manpower was used subsequent to October 27,
1961, in the cocoa department, and that it could have happened that Bryant worked
from October 1960 through May 1961 on a 5- and 6-day week when referred by
Manpower. Records were kept of the hours performed by Manpower employees on
a slip of paper which was signed or initialed daily by Kocimski or, if he was absent,
by Willis. The purpose of this daily slip was to show the number of hours worked
by the temporary Manpower employees so that records could be kept of the amount
of wages owed by the Respondent to the agency fer the work performed by the
agency's employees.
In the case of Bryant, it was proved by the General Counsel that Walton Willis
did from time to time initial the slip for Bryant at a time when the latter was work-
ing in the cocoa department. From this the General Counsel argues that "his
[Willis'] authority even extended to the pledging of the credit of Respondent by
authorizing payment of wages to temporary employees by the agency referring such
employees." This is indeed farfetched. Willis certainly did not have the authority
to pledge the credit of the Respondent. The agreement for hire was made between
the Respondent and the agency, and Willis' only function, in the absence of Kocimski
or Berg, was to verify the fact that Bryant had been at work and had worked a
stated number of hours on the days he did work.
Willis falls far short of having performed any of the functions which would
denote him to be ^a supervisor within the meaning of Section 2(11) of the Act.
Having found that Willis is not a supervisor, I find that the threats attributed to
him, if made, were not binding on the Respondent, were made without authority,
and can only be regarded as an expression of his own opinion
B. The alleged discriminatory discharges
Prior to their discharge on October 27, 1961, Jack Vance, Jr., Benny Saxon,
William O. Shumpert, James Carroll, Rogers Chalmers, John C. Willis, and Willie
Bryant were-employees of the Respondent, all employed or working -on the third
shift which ended at 7 o'clock in the morning. These are the employees alleged to
have been discriminatorily discharged on October 27. Shumpert was employed
on October 3 or 4, 1961, as a laborer on the first shift in the cocoa department. He
worked on the first shift for approximately 2 weeks and was transferred by
Kocimski on October 16. On October 13, Shumpert said 2 he was told by
Kocimski "that he would be starting on the night shift," and further was told
"you are a very good worker, I want you to continue your work-your good work,"
that Kocimski told him, "I want you to stay away from two men," and when
Shumpert asked who they were, Kocimski replied, "I'm not giving any names. You
are a good worker. I like you. Stay away from them."
Shumpert said that about the first part of October shortly after be was hired,
he observed leaflets and union authorization cards being distributed outside the
plant, that he obtained one and discussed the signing and mailing of the card with
other employees who told him he had better be quiet about it because if any one
2'This employee is called Shumpert in the complaint and in the stenographic transcript
of proceedings of the hearing although he spelled his name when sworn in as Shumeert.
I shall refer to him herein as Shumpert , to avoid confusion in the record.
COOK CHOCOLATE COMPANY 1521
found out about it he would be fired. Eventually he signed a union authorizaiton
card and sent it in about the middle of October. Shortly after that, he called at
the office of Local No. 781, talked to Joe Bernstein, a union official, and subsequently
called at the union hall where he, with Vance, talked to Bernstein, when they ob-
tained some authorization cards and later solicited signatures from other employees
on cards distributed to ,them.
Vance was employed by the Respondent in the cocoa department as a mill operator
in April 1959. He testified that he had received a union authorization card in
March or April 1961, had signed it and mailed it to Local 781. He further testified
that the authorization cards and leaflets were passed out first in September 1961,
and that he had signed the card in October; that ,he talked to Shumpert during the
early part of October. As a result of their conversation, they having agreed that they
would make an effort "to get a union in here," they called at the union hall and
talked to Bernstein; that Bernstein promised to work with them in an effort to
organize the employees; that subsequently he, Shumpert, and Saxon called at the
union hall in connection with their organization efforts; that the had passed out
authorization cards and had made telephone calls to different employees of the plant;
and that some signatures to cards were obtained from employees, which were taken
to the union hall.
Bryant first worked for the Company in September 1960 as an employee of
Manpower and later, in May 1961, was put on the payroll of the Respondent. He
was working on the third shift on October 27, 1961, when his employment was
terminated.
Carroll, employed August 5, 1959, worked on the third shift in the cocoa depart-
ment at the time of his termination on October 27, 1961. He observed the passing
out of -leaflets or authorization cards at the plant, observing that the cards were
passed out from time to time near the plant entrance about every 2 months after
he first obtained and signed a union card in October.
Thus, it appears affirmatively from the record, that Vance, Bryant, Carroll, Saxon,
and Shumpert were all interested in or members of the Union on the day they were
discharged and by implication that Chalmers, who did not testify at the hearing, also
was a member of ,the Union.3
Except for observing the distribution of leaflets or authorization cards near the
plant entrance and the inferences to be drawn from the alleged knowledge of com-
pany management concerning union activities as may be drawn from a meeting be-
tween Kocimski and employees on the third shift on October 24 (mentioned below),
the record is silent as to company knowledge of the activities on behalf of or
membership of any individual employee in the Union. There is a complete absence
of proof that the Respondent at any time manifested hostility toward the Union in
the prior certification elections nor can I find anything in the record to show
(other than the violations attributed to Kocimski), that any employee at any time
was threatened or was interfered with, restrained, or coerced in any manner
in connection with the activity of any employee in support of, or because of his
membership in, the Union. The first knowledge the Company had .that Local 781
claimed .to represent its employees was through receipt of a telegram sent by Union
Representative Bernstein from the local to the Company on October 26.4 The
General Counsel says in his brief that Berg "admitted that he had knowledge of
the organizing by the charging party for the past 4 years" and "even discussed
with Kocimski the fact with the Union and its organizing, on October 26, discussed
with Opler the fact of receipt of the telegram from the Union." This is based on a
statement by Berg that he had acknowledged that employees had discussed a union
because it had happened two or three times "from the time I had been with the
Company."
Further, I see nothing wrong in Berg having mentioned the Union to Kocimski or
discussing with Opler the receipt of the telegram. The General Counsel mistakenly
states that Kocimski "admitted seeing union authorization cards being passed out to
3 For background purposes, I admitted testimony to show that Board-conducted repre-
sentation case elections were held on May 23, 1953, and December 15, 1958, and that an
election scheduled for March 4, 1954, was not held
'Berg said, under questioning by counsel for the General Counsel, that in regard to the
"last election" the entire plant voted and that he had perhaps discussed that situation
with supervisory personnel as the situation then existed, but had never discussed the
matter with employees. I disergard this testimony as indicating animus or hostility
toward the Union, and as being insufficient in fact and too remote to be considered as
bearing on that question in the instant case.
649856-63--vol. 137-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees." Actually Kocimski agreed in answer to a question on cross-examina-
tion that he was aware that authorization cards were from time to time passed out
but that he had seen no authorization cards within the plant "except possibly right
after they were being distributed " He denied that he had ever discussed the Union
or the authorization cards with anyone including the leadmen.
The case of the General Counsel must stand or fall on the illegal activities or state-
ments of Kocimski at a meeting between him and the third shift on October 24 in
the lockerroom of the cocoa department building after the end of the third shift
about 7:15 or 7:20 a in. This, in connection with the remark attributed to
Kocimski by Shumpert, at the time Shumpert was transferred to the third shift.
Kocimski had first thought he would call the employees on the third shift together
at the end of the shift on the morning of October 23, but because two of the men
were absent he postponed the meeting until the following morning Among the
employees who were present at the October 24 meeting and who testified at the
hearing were Vance, Carroll, Saxon, and Shumpert, each of whom testified in effect
that at that meeting Kocimski had told them there was too much talk going around
and that it would have to stop; that he pointed out Jack Vance as the "ring leader"
of the group and said that he was exercising a bad influence on the men; that he
had remarked that Saxon had joined up with Vance and that Vance had the whole
third shift and some employees of other shifts following him; that there was some
discussion concerning possible discharges; and that Kocimski, singling out several
men by pointing his fingers, said that before he would fire J. C. Calimee (,a -leadman)
he would discharge "you and you and you "
Kocimski testified that during the middle part of October 1961, he, through lead-
men Walton Willis and John Willis had heard of rumors circulating through the
plant concerning the possibility of a layoff or the discharge of the leadmen of each
shift-Walton Willis, John Willis, and J. C Calimee. He said that he at first
ignored ,these rumors but later became concerned about them and about the quality
of the men's work and therefore called them together as he did. All of the men
on the third shift were present, as was John C. Willis, J. C Calimee, and, during
some parts of the meeting, Walton Willis Bryant, who was employed on the second
shift, was not present. He said he talked to the men about the quality of their work
on the cocoa and also about the rumors he had heard. He said that he then stated,
for comparison purposes, that before he would fire the leadman, J C Calunee, that
he would fire each and everyone of the third-shift employees. He said that he
told them at some length that he was not satisfied with the quality of the work being
performed by the third shift.
At this meeting the Union was not mentioned either by Kocimski or by any single
employee present (at the meeting ). Kocimski said he did not know, and had no way
of knowing, if the men were members of the Union. From his testimony it appears
that Kocimski had no thought of the Union in mind when he talked to the men on
the third shift as he did on the morning of October 24. Even if the testimony of
Shumpert is to be believed regarding Kocimski's alleged warning to him to stay away
from two men on the third shift, without naming them and even accepting the full
substance of what Kocimski is reported to have said at that meeting, the General
Counsel seems to urge a conclusive presumption drawn, or at least an inference
adopted, that Kocimski's sole purpose in calling the men together was to threaten
them with respect to their union activities. I cannot read into the testimony of the
men nor the testimony of Kocimski anything to indicate that any threat was made
intended to be directed toward the union activities or membership of the men in the
Union. It is asking too much, in the circumstances of the case, to draw that in-
ference, without more.
The General Counsel also would have an inference or a presumption imposed
here because of the receipt of the telegram by the Company from the Union, in which
a claim for recognition was stated, was received on October 26 and the men were
discharged almost immediately on October 27. Such a presumption will not stand
nor can such an inference be drawn in the fact of the uncontradicted and credible
testimony of Berg and Opler, now discussed.
C. Termination of third shift
President Opler makes all final decisions including policy decisions for the Re-
spondent and consults with Superintendent Berg and the vice president in charge of
bulk sales, Flynn, on policy matters. Kocimski is a production man only, and is
never consulted on policy matters; he merely executes orders given to him through
Berg.
COOK CHOCOLATE COMPANY 1523
On September 20, 1961, Opler met with Berg and Flynn on the question of what
might be done with surplus cocoa piling up on the floor and in the warehouses.
A large inventory had accumulated due to the fact among others that the Company's
business had decreased substantially due to the loss of large accounts including Na-
tional Biscuit Company, Sunshine Biscuit, and Frank's Cookies. At this meeting
Flynn opposed a suggestion made by Berg who recommended that a shift be elim-
inated, and who said then that two shifts could keep up with current business and
that the elimination of a shift, while not eliminating or disposing of all cocoa in the
warehouse, would eliminate a good deal; and that if Flynn succeeded in getting back
lost accounts, the termination of a shift would not be permanent, but could be re-
established at such time as it might be found that additional production of cocoa
would be needed to supply future orders. At this meeting Flynn expressed an op-
timistic view toward getting back lost accounts, so that the elimination of the third
shift would not be necessary. It was agreed at the end of that meeting to hold up
the elimination of a shift for the time being to give Flynn an opportunity to recover
lost business and to acquire new accounts.
Opler, Berg, and Flynn met again on October 20, 1961, at which time because there
had been no change in the Company's warehouse stock except to increase warehouse
inventory, and because Flynn had attempted without success to get back lost business
and obtain additional business, it was decided that Berg' s plan of eliminating a shift
be adopted. After discussion, the third shift was picked as the one to be terminated
because it was the least efficient of the three shifts. October 27 was decided upon
as the day on which the third shift would be eliminated. About 5 p.m. on October 27,
Berg began telephoning each man on the third shift to advise him that the shift was
being abolished because of business conditions and that the man was not to appear
for work on Friday night, October 27. He was unable to reach Shumpert by tele-
phone, but advised him of the termination of the shift about 10:30 that night, when
he saw Shumpert go into the cocoa building, Berg being at the plant on that night,
together with Walton Willis, to turn off steam valves, water valves, and adjust ma-
chinery to avoid possibility of damage.
Kocimski was not advised of the decision made on October 20 to terminate the
third shift on October 27, although Berg was aware that Kocimski had intended to
call the men together, as Kocimski did on October 24, to speak to them about poor
production. It was explained that since the Company manufactures food for human
consumption, it always has been company policy whenever anyone is laid off, not
to afford an employee under notice an opportunity of reprisal by allowing him to
remain on the job. It was explained that company policy is always handled in that
manner, because a person who is informed of impending layoff might become dis-
gruntled and vindictive and deliberately attempt to hurt the Company. Instances
were recited when the Company had experienced sabotage, with cigar butts, cigar
stubs, flash lights, metals, scoops, and scrub brushes being placed in the cocoa bags
Such foreign substances could not get into the cocoa in any way other than to be
put in the bags while they were open and before they were stitched. Consequently,
it is said, that over many years it has been the Company's experience that the only
way to safeguard customers and the Company is, not give advance notice of layoff,
and that company policy for terminated employees who participate in the company
profit-sharing plan is to pay them severance pay. Those of the employees who are
on a part-time basis, or are nonparticipants in the profit-sharing plan, do not receive
severance pay. This policy and practice has been in existence for more than the 35
years since the Company was founded 5
On the preponderance of the evidence I find that the General Counsel has failed
to sustain the burden of proof, and that the allegations of violations of the Act, as
set forth in the complaint, have not been proved.
The motion of the Respondent to dismiss the complaint herein, for the reasons
set forth in the written motion filed at the hearing, is hereby granted.
On the basis of the foregoing findings of fact, and on the record as a whole, I
make the following:
5 The financial condition of the Company and its unusually large warehouse stocks and
inventory, together with its sales records, and the severe decline in the Respondent's
cocoa business, are fully demonstrated and supported by records offered by the Respond-
ent and accepted without question by the General Counsel. I find that the decision of
the Company made on October 20 to terminate the third shift as of October 27 was
dictated by sound business reasons, was within the prerogative of management, and had
nothing to do with the interest in, or activities, or membership of, any of its employees
in the Union.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent, Cook Chocolate Company, is, and during the times material
herein has been, engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
3. The complaint herein should be dismissed in its entirety.
RECOMMENDED ORDER
It is recommended that an order be entered herein dismissing the complaint in its
entirety.
International Association of Machinists, Local Lodge 681, Dis-
trict Lodge No. 27, AFL-CIO and American Radiator &
Standard Sanitary Corporation and Patternmakers League
of North America, Louisville Association , AFL-CIO and The
Standard Allied Trades Council . Case No. 9-CD-54-2. July
20, 1962
DECISION AND DETERMINATION OF DISPUTE
STATEMENT OF CASE
This proceeding arises under Section 10(k) of the Act, which pro-
vides that, "whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4) (D) of
section 8(b), the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair labor practices have
arisen, . . .."
In May 1961, American Radiator & Standard Sanitary Corpora-
tion, hereinafter called American or the Employer, filed with the
Regional Director for the Ninth Region a charge alleging that Inter-
national Association of Machinists, Local Lodge 681, District Lodge
No. 27, AFL-CIO, hereinafter called the Machinists, and Pattern-
makers League of North America, Louisville Association, AFL-CIO,
hereinafter called the Patternmakers, have, in substance, threatened to
engage in and have induced and encouraged their members who are
employed by American to engage in a strike with the object of forc-
ing American to assign the operation of the Keller machine and cer-
tain maintenance functions on the Osborne molding machines to one
of these unions rather than the other and that by such conduct the
Machinists and the Patternmakers have violated Section 8(b) (4) (i)
and (ii) (D) of the Act.
Thereafter, pursuant to Section 10(k) of the Act and Sections
102.89 and 102.90 of the Board's Rules and Regulations, Series 8, the
Regional Director investigated the charges and, after dismissing the
charge as to the Patternmakers, provided for an appropriate hearing
upon due notice to all parties on the issue of the disputes over the
137 NLRB No. 155.