Frigo Brothers Cheese Corp.

National Labor Relations Board - Board Decisions

Jun 12, 1943

50 N.L.R.B. 464 (N.L.R.B. 1943)

In the Matter of FRIGO BROTHERS CHEESE CORPORATION- and DAIRY &
CREAMERY EMPLOYEES,, LOCAL No. 507 (AFL) and LENA LOCAL
INDEPENDENT UNION, PARTY TO THE CONTRACT
Case No. C-2502.-Decided June 12, -19V
DECISION
AND
ORDER
On January 13, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had not engaged in and was not engaging in certain unfair labor
practices and recommending that the complaint be dismissed, as set
out in the copy of the Intermediate Report attached hereto. There-
after the Uniori filed exceptions to the Intermediate Report and a brief
in support of the exceptions. The respondent filed a brief in reply to
that of the Uniori. The Board has considered the rulings of the Trial
Examiner at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has considered
the, Intermediate Report, the exceptions, the briefs, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon 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 Frigo Brothers Cheese
Corporation, Lena, Wisconsin, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Messrs. Robert T. Drake and Clarence Z. Meter, for the Board.
Messrs. 0. S Hoebreckx, of Rhinelander , Wisc. and John V. Zanardi , of Iron
Mountain , Michigan , for the respondent. -
Mr. Martin J. Young, of Green Bay , Wisc, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on September 21,,1342. by Dairy & Creamery
Employees, Local No. 507, (AFL) affiliated with the American Federation of
50 N. L. R. B., No. 73.
464 -
FRIGO BROTHERS CHEESE CORPORATION 465
Labor, herein called the Union, the National Labor Relations Board, herein called
the Board, by the Regional Director for the Twelfth Region (Milwaukee, Wis-
consin), issued its complaint dated November 27, 1942, against Frigo Brothers
Cheese Corporation, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning'of' Section 8 (1), (2), 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, accompanied by notice of hearing thereon, were duly served
upon the respondent, the Union, and Lena Local Independent Union, herein
called the Independent.
With respect to the unfair labor practices, the complaint alleged that (1) on or
about February; 24, 1942, the respondent instigated, formed and sponsored the
Independent and thereafter dominated and interfered with the administration
of the Independent and contributed support thereto; (2) the contracts entered
into by and between the respondent and the Independent on or about March 1,,
1942, an&again on or about July 1, 1942, were illegal, unenforceable and void
because entered'into as a consequence of unfair labor practices and tending to
perpetuate such unfair labor practices; (3) on or about February 21, 1942, the
respondent refused to bargain collectively with the Union as the representative,
of the respondent's employees in an appropriate unit, although a majority of the'
said employees had designated the Union as their representative for such pur-
poses; and (4) at various times from and after February 23, 1942, the respondent
had interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the National Labor Relations Act. -
On or about December 6, 1942, the respondent filed its answer wherein it ad-
mitted certain allegations of the complaint but denied that it had engaged in
any unfair labor practices The Independent failed to answer the complaint.
Pursuant to notice, a hearing was held on December 28 and 29, 1942, at Lena,
Wisconsin, before the undersigned, the Trial Examiner duly designated by the
Chief,Trial Examiner. The Board and the respondent were 'represented by coun-
sel. The Union was represented by its business agent. All parties actively
participated in the hearing. The Independent failed to appear at the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and- to
introduce evidence bearing on the issues was afforded all parties. At the con-
elusion of the hearing the parties argued orally before the undersigned and stated
that they did not desire to file briefs in the. matter.
Upon the-entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a corporation organized and existing'by virtue of the laws
of the State of Michigan, with its main offices at Iron Mountain, Michigan,
where a storage warehouse is also maintained. The respondent's main factory
and warehouse are located at Lena, Wisconsin. In February 1942, it also had
a plant known as the Meadowbrook plant, located about 3 miles from Lena. The
respondent is now and has been at all times material herein engaged in the man-
ufacture, sale and distribution of American and Italian cheese. During the year '
ending June 30, 1942, the respondent manufactured and sold 891,608 pounds of
cheese, of which 410,644 pounds were sold and transported to consignees out-
side of the State of Wisconsin.
' 466 DIEiCTSfON1S OF NATWONiAL LABOR RELATIONS BOARD,
i
II. THE ORGANIZATIONS INVOLVED
Dairy & Creamery Employees , Local ' No. 507 ( AFL) is a labor organization
affiliated with the American Federation of Labor; admitting to membership
employees of the respondent.
Lena Local Independent Union is an unaffiliated labor organization admitting
to membership employees of the respondent.
i
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
Or} or about February ' 10, 1942, Martin J. Young, business agent of the Union,
conferred at Lena with the three employees of the respondent who worked at
the Meadowbrook plant.' A few days thereafter Young again met with about.3
of the respondent 's employees in Lena. On February 21, Young held a meeting
with 11 of the 13 men engaged in production and maintenance work for the
respondent at its three plants around Lena1 This group gathered in a tavern
located about 3_ miles from town. At this meeting nine of the employees signed
cards authorizing the Union to act as their bargaining agent and agreeing to
iay the union initiation fees and dues . - On February 23 or 24, similar' cards
executed by two other employees were received at union headquarters in Green
Bay, Wisconsin . The respondent acknowledged at the hearing that, as of Febru-
ary 21, the Union represented a majority of the employees in the appropriate
unit composed of all production and maintenance employees without supervisory
duties, employed at the respondent 's plants in - and around Lena, Wisconsin.
On Monday , February 23, Young went to the respondent 's'ofce in Lena for
the-purpose of meeting the respondent 's president , Pasquale Frigo, and of com-
mencing negotiations for a contract covering the respondent 's employees.
Through no fault of Frigo, Young failed to'locate him on this occasion.
Early that Monday morning , employee Lawrence Martens , wlho had executed
a union card on Saturday informed Pasquale Frigo in the respondent 's warehouse
that all the employees had joined the Union the previous Saturday night. Frigo,
who was both surprised and excited by the news , remarked that, he was surprised
that the men had not come to him first and that he thought all the employees
were satisfied . ' Although there apparently was more to this conversation , Martens
testified that he could 'not recall anything further 2
On February 24, Young talked with Pasquale Frigo by long distance telephone-
He told Frigo that the respondent 's employees had joined the Union and that the
Union wanted to negotiate a contract with the respondent . At Frigo's suggestion,
it was agreed that the men would meet the following day at union headquarters '
in Green Bay.
On' February 25, as agreed , Frigo and Young met. Young reiterated his
previous statements that the employees had joined the Union and that the
Union wished .to negotiate a contract. Frigo then explained that, while he was
president of the respondent corporation , he had not been authorized by the
corporation to bargain but that he would secure that authority and meet with
1 The respondent's pay roll as of February 27„ 1942, shows that 13 men were employed
in production and maintenance work in the three plants in and around Lena, Wisconsin
This figure excludes Lyle Longrie, the bookkeeper, and Antonio Frigo, who admittedly was
a supervisory employee I '
2 The testimony of Martens was characterized by such forgetfulness as amounted prac-
tically to a studied effort to conceal the facts . The same thing was equally true of all
the Board witnesses , all of whom with one exception were still employed by the respondent-
FRIGO BROTHERS CHEESE CORPORATION= 467
Young at their mutual convenience during the following week. This was agree-
able to Young.
On February 25 or 20, a number of the respondent's employees:, met, in ,the
respondent's warehouse in Lena after working hours, where there was a discus-
sion about forming an independent union , Although the witnesses could not
recall how arrangements for the meeting were made, the evidence was that the
respondent had nothing to do with the meeting, did not give permission for the
use of the warehouse, and, in fact, knew nothing about, the meeting. During
this meeting Martens informed the employees of his Monday conversation with
Pasquale Frigo. As some of the employees, particularly the three, employed at
the Meadowbrook plant, continued to prefer to remain members of the Union to
forming an independent union, it was decided to continue' the discussion at
another meeting to be held Friday, February 27; in the boiler room at the
respondent's main plant in Lena.
As agreed, this meeting was held in the boiler room after working hours on
February 27. After further discussion, 8 of the 11 employees who had previously
executed union cards signed a statement to the effect that they were "withdraw-
ing" from the Union' The three employees who did not sign this notice of with-
drawal were the three employees of the Meadowbrook plant. Thereafter the
assembled employees formed a labor oiganlzation known as "Employees Union
of Lena Plant (Independent)," elected employees Anderley, Martens, and Burg
chairman, treasurer, and secretary, respectively. The group then discussed the
terms.of a contract to be proposed to the respondent. A form of contract was
drafted and executed by the eight employees individually. Anderley was ap-
pointed to submit this proposed contract to the respondent.
Some time ,between February 27 and March 1, 19-12, Anderley submitted this
proposed contract to Louis Frigo, the secretary'of the respondent. Frigo read the
contract over; inquired if the employees wanted the contract executed, and, when
informed that they did, executed the contract as secretary of the corporation.
The contract, written in longhand, read as follows :
FEE. 27, 1942
EmPLOYEEs UNION OF LENA PLANT INDEPENDENT
CONIRACr '
We the employees of Frigo Bros. Cheese Corp. are demanding an increase
in wages and other considerations. The wages for each employee asked are
as follows
Per month 4
Justin--------------------------------------------------------- $70
Bernard Gabriel ----------------------------------------------- $70
Sylvester Metzner -----------------------------------------------
Bernard Schraufnagel__________________________________________ $85
Norbert Burg-------------------------------------------------- $8.i
Fred Wilhelmi--------------------------------------------- -- ---- $85
Lawrance Marten (sic)________________________________________ $95
Matt Anderly (sic) ------------------------------- '- ---------- $95
After one years service with the Company we want seven days vacation
with pay for each employee, and one half day off every ten days. On Sundays
no one takes off and we go home soon as possible.
' This notice was mailed that evening to the Union and received by it in due course of
the mails.
4 These figures increase the wages of each member from $5 to $10 apiece.
468 DUC11SiONS OF NATIONAL LABOR RELATIONS BOARD
Before a man is,discharged the company will first discuss with the officers
of the' union the reasons for such action.
We will work 9 hours a day or as,near that as possible depending upon,
conditions which some times arise An the milk industry. This contract
extends from March 1, 1942 to July 1, 1942.
(Signed) Louis FRIGO, ,Scc y
(s) Norbert Burg, $85; (s) Mathen Anderly, $95; (s) Fred Wilhelini, $85;
(s) Sylvester Metzner, $85; (s) Bernard Gabriel. $70; (s) Justin Vdr Brug-
gen, $70; (s) Laurence Martens, $95; (s) Bernhard Schraufnagel, $85.
On February 28, 1942, the respondent suddenly closed its Meadowbrook•plant
and -laid off two of the employees working at said plant. The third employee
was transferred to the main plant at Lena. The record fails to disclose the cause
of this sudden shutdown. The Meadowbrook plant has never since been recitiened
Pasquale Frigo failed to arrange a -further, meeting with Young, during the
first week of March. On March 11 Young wrote the respondent complaining
about this failure and stating that he had, filed -unfair labor practice charges.,
Respondent replied agreeing to meet at a later date
On March 24, Pasquale Frigo and Young•met again in Green Bay as a result
of the above correspondence. On this occasion Frigo informed Yound that the,
iespondent could not-bargain with the Union as it had signed a contract with
i he employees themselves. However, it was suggested that Young submit the
Union's proposed contract to the respondent's attorney, John V. Zanardi: This
Young did that same doy. Zanardi answered Young's letter containing, the
proposed contract and the request foi• negotiations, by letter dated April 1,
reading in part as follows : "I pi esume that the independent union at Lena has
their own agreement with the company. In view of these circumstances, it was
,thought that they [the respondent] could not sign this proposed contract which
you had-mailed to,me."
On March 25 the Independent held its-regular monthly meeting in the office
occupied by Louis Frigo in the Lena plant. This meeting was held after working
lrouis and was followed by a party held in the auditorium at the respondent's
plant ° The independent secured permission from the Frigos for the use of the,
plant for these purposes. Thereafter the meetings of the Independent have been
held at places away from the respondent's premises. ,
On April 24, Young, Zanardi, and Pasquale and Louis Frigo met with John
Brophy, field examiner for the Board, at the respondent's office at Iron Mountain,
Michigan, where, at Brophy's suggestion, the respondent agreed 'to, and did,-post
the following notice in the Lena plant:
NOTICE
Pursuant to a request from sthe Twelfth Regional Office of the National
Labor Relations Board , the Frigo Brothers Cheese Corporation wishes to
advise its employees as follows :-
-Effective immediately , the Lena Local Independent . Union will no longer
be recognized as the collective bargaining agency for the Frigo Brothers
Cheese Corporation 's employees , and the contract betweenathe Frigo Brothers
Cheese Corporation arid. the Lena Local Independent Union is , hereby can-
celled, and it will no longer have any force and effect or binding on any of
the employees. -
I
None of the Independent meetings were attended byai{y supervisory employee or coin-
pany officials.
FRIGO BROTHERS CHEESE CORPORATION 469
All employees of the Frigo Brothers Cheese Corporation are hereby advised
that they or_any of them have the free right to join and remain members,of
the Dairy and Creamery Employees Local 507, affiliated with the A F. of L.,
and they will not be discriminated in any manner whatsoever while in the
employ of the Frigo Brothers Cheese Corporation for such union activity.
FRIGO BROTHERS CHEESE CORPORATION.
By PASQUALE FRIGO, President.
Dated at Lena, Wisconsin, April 25, 1942.
Despite the posting of this notice, the Independent continued to hold meetings
as usual. The officers remained the same, as did the membership. Although
the notice stated that the contract was cancelled, the employees continued to work
at the same salaries and under the same conditions as before . It was agreed at
the hearing that- the Independent was not disestablished.
On May 6 the following letter in long hand was sent to the Regional Office of
the Board in Milwaukee : -
Mr. EDWARD J. BROPHY, Field Examiner
National Labor Relations Board,
.623 North 2nd St., Milwaukee, TVis.
We the employees of Frigo Brothers Cheese Corp. have organized our own
union namely-Lena Local Independent Union.'
MATHEW ANDERLEY.
BERNARD GABRIEL.'
BERNHARD SCHRAUFNAGEL.
SYLVESTER METZNER.
FRED WILHILMI.
JUSTIN VER BRUGGEN.
NORBERT BURG.
LAURENCE MARTENS.
The following letter in longhand was sent to the respondent:
LENA, WIS.,
May 20, 1912.
FRICO BROS. CHEESE CoRP., Lena, Wis.
DEAR SIRS : The Lena Local Independent Union asks you that they be
recognized as collective bargaining agents for the employees of the company.
We would want a contract to cover this matter.
Yours truly
MATHEW ANDERLEY, Pres.
NoRBERO BURG, Sec:
LAURENCE MARTENS, Treas.'
On June 24, a week prior to the stated expiration date contained in the March
1 contract, the Independent at its regular meeting discussed the terms of a new
contract to be submitted to the respondent. A committee submitted the contract
to Louis Frigo , On this occasion the respondent requested, time to consider the
contract and later submitted a counter-proposal. According to the testimony,
this counterproposal was considered at another Independent meeting of which
no minutes were kept. This proposed contract was executed by five of the
members of the Independent. The counterproposal contained, among other
things, further wage increases of $5 to $10 per member per month. After its
9 Although this name differs somewhat from that used on February 27, it is clear that
the labor organization remained the same
So far as the evidence shows, no answer was ever received by the Independent.
536105-44-vol. 50-31
'470
/
DIE,C1SfBONIS OF NA:TgONAL -LABOR RELATIONS BOARD
execution by the individual members df the Independent, the contract was
executed by Louis Frigo as secretary. The contract read as follows :
UNION CONTRACT
This contract made and entered into this 1st day of July, 1942, by and
between Frigo Brothers Cheese Corporation, Lena, Wisconsin, as party of the
first part, and Lena Local Independent Union, Lena, Wisconsin, as party of
the second part; -
Whereas the Frigo Brothers Cheese Corporation is engaged in the produc-
tion of cheese at its Lena, Wisconsin, plant ; and i -
Whereas the Lena Local Independent Union is a labor union' consisting of
the employees of the above Corporation, and has a majority of the employees
,as members of said Union ; and '
Whereas the said Union, as the sole collective bargaining agency of the
said employees, desires to enter into a contract for its members,
It Is Agreed that the said Lena Local Independent Union, representing a
majority of the Corporations employees, is hereby recognized as the sole col-
lective bargaining agency for the said employees.
It is further agreed as. follows :-
1. That the monthly wages, starting July 1, 1942,• and extending for the
period of this contract, shall be as follows :
Matt Anderly [sic]_______ $105.00 Bernard Schraufnagel_________ $95.00
Lawerence Martens [sic]__ 105 00 Bernard 2abriel---------- ------ 95.00
Norbert Burg____________ 100.00 Fred Wilhelmi________________ 100.00
2. That out of every ten (10) days, Sundays included therein, a full day
off with pay shall be allowed by each employee ; and that no extra,,work shall,
be done on Saturdays,' Sundays, or holidays, other than the usual cheese mak-
ing production. 7 days being the week.
3. That the "seniority rights" system shall be recognized, and the last em-
ployee hired shall be the first one laid off in slack period ; that when an em-
ployee is incompetent or cannot do his work, before laying him off, the matter
shall be discussed by the Corporation and the officers of this Union.
• 4. That when the Corporation shall be in the production of American cheese,
the employees shall work 10 hours a day at the above wages ; and when pro-
duction is had of Italian cheese, then 9 hours a day shall be the working , day ;
the working week shall be 7 days a week with the day off every ten days, as
above provided in No. 2 and at the wages above mentioned.
5. that after a year's service with the company, a week's vacation with pay
shall be allowed to the employees having been with the Company the year.
6. That a newly hired employee shall have 60 days time in which to, join
this Union ; if he desires to remain in the employ of the Corporation beyond
that time, he must become a member thereof, provided he is able to do his
work.
7: Those employees desiring to attend, church Sunday mornings shall ar-
range amonst themselves as to the hour they will report to work, so as to
allow employees desiring to attend church to do so, conveniently, the oppor-
tunity being hereby' given•by the Corporation.
8. Each employee shall promptly report for work on the hour at which
he shall be scheduled to commence.
FRIGO BROTHERS CHEESE CORPORATION 471
9. This contract shall be valid and binding on both parties hereto for one
year, from July 1, 1942, to June 30, 1943, inclusive.
FRIGo BROS. CHEESE CORPORATON.'
by /s/ Louis,FRIGO, Secretary.
(s) NORBERT BURG.
(S) MATHEW ANDERLEY.
(s) LAURENCE MARTENS.
(s) FRED. WILHELMI.
(s) BERNARD SCHRAUFNAGE..
Representing the Lena Local Independent Union, Lena, Wisconsin.
The employees are still working under this agreement.
B. Conclusions
1. Interference, restraint,,and coercion
The remarks made by Pasquale Frigo on February 23 that he was surprised
that the employees had joined the Union, that he did not know that they had
any complaints, and that he wished the employees had come to the respondent
first, and the respondent's action in closing the Meadowbrook plant, consti-
tute the only evidence in the record which might be considered to amount to
interference, restraint, and coercion.
As to the remarks of Pasquale Frigo, they would seem, under the circum-
stances, to have been innocent enough. It is true that employee Martens, to
whom the remarks were made, soon thereafter became one of the leaders in
the move to withdraw from the Union and to form an independent union.
However; Martens testified that although he had filled out an A. F. of L. card,
he was even at that time considering the formation of an independent union
with certain others of the respondent's employees . Perhaps the best evidence
that the remarks were not interpreted as being coercive by, the other em-
ployees to whom they were repeated by, Martens appears from the fact that
the employees held two discussions on the question before reaching any de-
cision. Although the reticence and forgetfulness of the employee witnesses in
this case might be due to employer interference, still, in the absence of any
evidence on that score, the remarks of Pasquale Frigo, standing, alone can not
be found to have constituted interference, restraint, and coercion.,
The Meadowbrook plant was closed the day after the three employees sta-
tioned there by the respondent had failed to withdraw from the Union. Al-
though this is a suspicious circumstance , this suspicion is weakened by the fact
that one of those employees wars transferred to the Lena plant thereafter and
by the fact that the plant has never since been reopened. The evidence pre-
sented on this phase of the case fails to overcome the presumption that shut-
down of the Meadowbrook plant was caused by legitimate business reasons.
2. The Independent
While the reticence and forgetfulness of the employee witnesses creates some
suspicion, still that reticence and forgetfulness cannot change the facts as
testified to by the witnesses themselves. The testimony shows that even at
the time the employees executed cards authorizing the Union to bargain for
them, some of them were considering the possibility of forming an independent
union. That the employees were unable to agree upon what action to take at
their first free discussion of the matter, and that a second discussion was
necessary before a decision could be reached tends to indicate that the ultimate
472 D'EC SIDON'S OF 1VATfONAL LABOR - RELATIO\ S BOARD
decision to form an-independent union was reached by the employees themselves
without interference from the respondent. The employee's continued loyalty
to' the Independent even after the posting of the notice of April 25 seems to
corroborate this. The fact that the meetings were held in the plant of the
respondent creates some suspicion that -the employees were under the influence
of the respondent. The uncontradicted testimony that the respondent had
nothing to do with these meetings, did not even, know thereof, and gave no
permission for them to be held in the plant makes the fact that meetings were
held in the plant standing alone an insufficient basis for finding that the Inde-
pendent was dominated or interfered with, by the respondent. Under the
testimony adduced at the present hearing, the undersigned finds the evidence
-insufficient to hold that Lena Local Independent Union was company-inspired,
dominated, or assisted. He also finds that the withdrawals from the Union
executed by the employees at one of these meetings were not the result of any
unfair labor practices committed by the respondent.
While the action of the respondent in executing the proposed contract of
February 27 was in sharp contrast to the action taken when requested by the
Union to bargain, still in view of the lapse of time between the Union's request
and February 27 it is possible that the corporation had authorized its officers
'to bargain with the union entitled to be recognized as the exclusive representa-
tive of the employees. As the proposed contract showed on its face that it was
approved by a majority of the employees in the appropriate unit discussed
below, it cannot be found under the facts here that the respondent was not
entitled' to execute the agreement or that the agreement was invalid. As the
contract also contained no provisions contrary to the terms of the Act and as
it appears to have been submitted by a majority of the employees of their own
'free will, the undersigned finds it unnecessary to determine whether the indi-
vidual employees or the Independent were the second party to the contract.
On April 25, the respondent posted a notice providing for the disestablishment
of the Independent and the cancellation of the contract of March 1. At the
hearing the parties agreed that, although the name of the Independent may
'have been slightly changed between its formation and July 1, it, nevertheless,
was the same labor organization and was never ^ disestablished in accordance
with the terms of the notice. Despite the assurance contained in the notice
that the employees were free to join or remain members of the Union, the
employees continued to remain loyal to the Independent. This continued
affiliation appears to be cogent proof that the Independent was the freely chosen
representative of the employees.
The failure of the evidence adduced at the hearing to disclose the commission
of unfair labor practices by the respondent vitiated the possible admission of
company-domination of the Independent contained in this notice.
3. The refusal to bargain
a. The unit
The evidence shows, and the undersigned finds, that all production and main-
tenance employees of the respondent employed at its plants in Lena, Wisconsin,
Exclusive of clerical and supervisory employees, constitute a unit appropriate
for the purposes of collective bargaining.
In its complaint the Board contended that "sons of the respondent's officials"
should also be excluded from the appropriate unit. The respondent objected to
FRIGIO BROTHERS CHEESE CORPORATION '473
this proposed exclusion. The
inappropriate.'
undersigned finds this proposed exclusion to be
b. The majority
The facts show, the respondent acknowledged, and the undersigned finds that
on February 21 the Union represented 11 of the 13 employees in the above found
appropriate unit and was therefore entitled to recognition as the exclusive bar-
gaining agent of the employees as of that date.
However, as found above, 8 of the 11 employees who had executed cards
authorizing the Union to bargain for them withdrew that authority by letter
dated February 27. As also found above, there is no proof that these with-
drawals were the result of any unfair labor practices. The undersigned there-
fore finds that the withdrawal of authority to the Union to bargain by these
eight employees was the voluntary acts of the individuals involved and that
the Union thereby lost its right to be recognized as the exclusive bargaining
agent of the employees on said date.
c. The refusal to bargain
While the Union represented a majority of the employees of the respondent
between February 21 and February 27, the respondent and the Union had but
one meeting. During this meeting the respondent's president explained that
he had received no authority to bargain from the corporation and agreed to
meet again with the Union the following week after securing the necessary
authority. The fact that the respondent's president took this precaution before
attempting to negotiate a contract cannot, in view of all the facts in this case,
be held to constitute a refusal to bargain.
Although Pasquale Frigo thereafter failed to keep his agreement to meet with
the Union, the respondent by this time was under no duty to bargain with the
Union because of the withdrawal of authority from the Union.
The undersigned will, in accord with these conclusions, recommend that the
complaint be dismissed.
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 operations of the respondent occur in commerce within the meaning
of Section 2 (6) of the Act.
2. Dairy & Creamery Employees Local No. 507 (AFL), affiliated with the
American Federation of Labor, and Lena Local Independent Union, unaffiliated,
are labor organizations within the meaning of Section 2 (5) of the Act.
3 The respondent has not interfered with, restrained, or coerced its employees
in the exercise of the right guaranteed in Section 7 of the Act within the mean-
ing of Section 8 (1) of the Act.
4. The respondent has not dominated or interfered with the formation or
administration of Lena Local Independent Union or contributed financial or
other support thereto, within the meaning of Section 8 (2) of the Act.
5. The respondent has not refused to bargain collectively with Dairy & Cream-
ery Employees Local No. 507 (AFL) as the exclusive representative of all the
g The facts show that this proposed exclusion would affect only one employee, namely,
Francis Frigo . It was admitted that Antonio Frigo was at all times material herein a
supervisory employee.
474 DE.CESUJON'S OF 1,,RATPONAL LABOR RE'LATIO'NS BOARD
respondent's production and maintenance employees employed at its plants in
and around Lena, Wisconsin, exclusive of clerical and supervisory employees,
within the meaning of Section 8 (5) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the complaint against Frigo Brothers Cheese
Corporation be dismissed. -
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Shoreham Building, Wash-
ington, 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.
As further provided in said Section 33, 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 the order transferring the
case to the Board.
THOMAS S. WILSON
Trial Exam finer
Dated January 13, 1943.
I