Kraft Foods Co.

National Labor Relations Board - Board Decisions

May 28, 1954

108 N.L.R.B. 1164 (N.L.R.B. 1954)

1 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Loss of pay shall be determined by deducting from a sum equal to that which these em-
ployees would normally have earned for each quarter or portion thereof, their net earnings,
if any, in other employment during that period. Earnings in one particular quarter shall have
no effect upon the back-pay liability for any other quarter. The quarterly periods described
herein shall begin with the first day of January, April, July, and October.? It is recommended
further that Respondent make available to the Board upon request payroll and other records,
in order to facilitate the checking of the amount of back pay due.8
Because of the Respondent's unlawful conduct and its underlying purpose and tendency, I
find that the unfair labor practices found are persuasively related to other unfair labor prac-
tices proscribed and that danger of their commission in the future is to be anticipated from
the course of the Respondent's conduct in the past. 9 The preventative purpose of the Act will
be thwarted unless the order is coextensive with the threat. In order, therefore, to make
effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor
practices, and thereby to mmirruze industrial strife which burdens and obstructs commerce,
and thus effectuates the policies of the Act, I will recommend that Respondent cease and
desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Clay M. Bishop and Robert E. White are partners doing business at Hyden, Kentucky,
as New Hyden Coal Company. This partnership is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. United Mine Workers of America is a labor organization within the meaning of Section 2
(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Joe Baker, Carlos
Stollings, George Huff, Orville Huff, and William W. Taylor, thereby discouraging member-
ship in United Mine Workers of America, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of the Act.
4. By interrogating employees as to when they thought the Union would come in, by asking
employees if they belonged to the Union, if they had attended a certain union meeting, if they
had any information concerning a strike, if they were going to strike, if they had voted to
strike, and by polling its employees as to who would work the day a strike was to begin,
Respondent interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce within
the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
7 F. W. Woolworth Company, 90 NLRB 289.
8F. W. Woolworth Company, supra.
9 N. L. R B . v. Express Publishing Co., 312 U S 426.
KRAFT FOODS COMPANY and JOSEPH F. MURTHA. Case
No. 4-CA-834. May 28, 1954
DECISION AND ORDER
On October 15, 1953, Trial Examiner Robert E. Mullins
issued his Intermediate Report in the above - entitled proceeding
recommending that the complaint be dismissed in its entirety,
as set forth in the copy of the Intermediate Report attached
108 NLRB No, 160
KRAFT FOODS COMPANY 1165
hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief. The Respondent
filed briefs' in support of the Trial Examiner's findings and
recommendations.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The Board has considered the Intermediate Report,
the exceptions and briefs , and the entire record in the case,
and hereby adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner to the extent consistent herewith.
The Trial Examiner found, and we agree for the following
reasons, that the discharge of Joseph F. Murtha on the morning
of January 23, 1953, was not violative of the Act. The record
shows that Ternosky, the Respondent's assistant branch man-
ager, discharged Murtha on the basis of a report by Neiman,
the shop steward, to the effect that the men in the warehouse
were threatening to strike and that Murtha was the cause of
the disturbance. While Ternosky's testimony as to Neiman's
report to him was no more thanheresaywith regard to the fact
of Murtha's alleged activities, such testimony nevertheless
establishes that in discharging Murtha, Ternosky entertained
an honest belief that Murtha had engaged in activity violative
of the no-strike clause of the existing collective-bargaining
contract, for which he could have been properly discharged.
This prima facie honest belief having been established by
the Respondent, became the burden of the General Counsel
to establish by a preponderance of the evidence that despite
the Respondent's belief, Murtha's activity was not the inciting
of a strike in violation of the no-strike clause.2 This, we find,
the General Counsel failed to do.
In arriving at this finding, we rely to a great extent upon
Murtha's own testimony in which he admitted that after ascer-
taining that the Respondent proposed to use a nonunion mer-
chandiser to make a delivery, he vigorously protested to
Neiman, the shop steward. He further admitted that when Nei-
man displayed a reluctance to take positive action upon his
complaint he, Murtha, told Neiman, in substance, that there
was no need to call upon the Union for action and urged Nei-
man to inform the Respondent that the merchandise could not
go out and it would not go out. This testimony Murtha reiterated
upon cross-examination. We cannot believe that these words
were innocuously offered by Murtha in an attempt to assist
Nieman with his duties as shop steward or that they may be
construed as indicative of a desire for the adjustment of a
grievance within the framework of the existing bargaining agree-
ment. On the contrary, we believe that Murtha's conduct during
the morning clearly indicated that this final exhortation of
Nieman was the climax of a period of agitation. It is established
1 The Respondent's petition to file a reply brief is granted and the brief considered.
'Cf. Rubin Bros. Footwear, Inc., 99 NLRB 610.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Murtha left his work station at least three times during
the morning to seek out Neiman and remonstrate with him with
regard to the Respondent's plan. Finally, climaxing the morn-
ing-long period of agitation and protest, he made these un-
equivocal utterances to Nieman not in seclusion but on the
open floor of the warehouse within earshot of many of his
fellow employees who had also observed his behavior during
the morning.
We do not here hold, as our dissenting colleagues suggest,
that an employee may not, with complete protection by the Act,
as amended, attempt to process, or in fact urge a grievance,
alone or through his union representative, regardless of
whether or not a grievance procedure is provided in any current
collective-bargaining contract.
In the light of the foregoing, we are satisfied that Murtha's
words and actions were designed to incite strike action in
violation of his no-strike contractual obligations and were
therefore unprotected by the Act.
[The Board dismissed the complaint.]
Members Murdock and Peterson, dissenting:
It is our considered belief that the conclusion of our col-
leagues to dismiss the complaint in this case does not properly
reflect the evidence which is contained in this record and estab-
lishes a precedent dangerous in its implications. The majority
opinion finds that the complainant, Murtha, incited strike action
in violation of contract and that the Respondent lawfully dis-
charged him for such activity. We submit, to the contrary, that
the record compels the conclusion that Murtha engaged in
activity protected by statute and thathis discharge was in viola-
tion of the amended Act.
The issue in this case is whether or not the actions of Murtha
which precipitated his discharge are within the protection of the
National Labor Relations Act. Translated into the facts of this
case as we see them the issue may be further defined as being
whether or not an employee can be lawfully discharged for com-
plaining to his union representative concerning amattervitally
affecting his working conditions. A brief description of the
factual background surrounding this discharge is necessary to
the resolution of this question.
For some time prior to his discharge, Murtha, as well as
other employees in the unit represented by the Teamsters at
the Respondent's plant, was disturbed by the Respondent's use
of nonunit employees known as merchandisers for delivery
duties otherwise done by employees in the unit. On the morning
of January 23, 1953, Murtha protested to his shop steward,
3 Cf. N. L. R. B. v. National Die Casting Company, 207 F. 2d 344 (C A. 7), enforcement of
94 NLRB 845 denied; Harnischfeger Corp. v. N. L. R. B., 207 F. 2d 575 (C. A. 7); Dazey
Corporation, 106 NLRB 553.
KRAFT FOODS COMPANY 1 167
Neiman, concerning the latest incident of a merchandiser
engaging in delivery work. Murtha requested, as he and others
had done before, that the Union stop this practice and that
Neiman convey this position to the Respondent. Neiman then
spoke to the Respondent's assistant branch manager, Ternosky,
who promptly discharged Murtha. The Trial Examiner found
that the discharge was lawful on the ground that Murtha was
"usurping the functions of the duly authorized bargaining agent"
in regard to the Respondent's use of merchandisers and inciting
his fellow employees to strike in violation of a no-strike clause
in their contract. Our colleagues, while agreeingwiththe Trial
Examiner that the discharge was lawful, modify his conclusions
to the extent that they find only that Murtha's words and actions
were designed to incite "strike action" in violation of the no-
strike clause and that the Respondent had discharged Murtha
because of an "honest belief" that he had done so. We cannot
agree that the record or the law, however, supports either the
Trial Examiner or our colleagues ' basic conclusions.
The Trial Examiner, while apparently admitting that some
confusion existed, found that for several years prior to the
discharge the Respondent and the Teamsters had an oral agree-
ment whereby the Respondent could use merchandisers to make
emergency deliveries. The majority opinion is silent on this
point. It is patent that the practice in question was of vital
importance to Murtha and his fellow employees for it bore
directly on the assignment of work with its attendant effects
upon job tenure, wages , and hours. It is therefore important to
examine the basis for the Trial Examiner 's conclusion in this
respect. The record contains undenied and otherwise corro-
borated evidence that (1) despite the alleged existence of such
an oral agreement for "several years" ithadnever been made
a part of the written contract between the parties; ( 2) none of
the employees, up to the date of the discharge, had ever been
informed of the existence of such an agreement or were aware
of such existence; (3) the Respondent's witnesses admitted
that continuing complaints had been made on the subject; (4) at
a union meeting less than 2 weeks prior to the discharge,
Murtha, among others, had vigorously protested the use of
merchandisers for delivery duties and had been assuredby the
union business agent that the Union had never given permission
for such use; and (5) according to the testimony of Respondent's
own officers the union business agent had raised the merchan-
diser question only 9 days prior to the discharge. These facts,
largely ignored by the Trial Examiner, are in complete con-
flict with his finding that such an agreement did exist; a finding
based solely upon self- serving declarations of the Respondent's
officers and the hearsay testimony of one witness. Under these
circumstances, as seem indicated by the majority opinion's
silence on the point, it is impossible to accept the Trial Exam-
iner's finding that the grievance raised by Murtha and his
fellow employees was in derogation of any contract or agreement
between the Teamsters and the Respondent.
1 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The issue therefore centers upon what was actually done by
Murtha on the morning of January 23 toprocess his complaint.
The Trial Examiner and our colleagues both find that his
activity amounted to an incitement of his fellow employees to
strike in violation of the no-clause in their contract . What are
the facts?
It is established by the record that, on the morning of January
23, Murtha observed that the Respondent had again assigned
delivery duties to a merchandiser . In the course of the morning
he spoke to his shop steward, Neiman , on three occasions con-
cerning the incident . While performing his work, he also asked
the Respondent's dispatcher, when that individual approached
Murtha's work station, whether the Respondent had scheduled
further deliveries by the merchandisers. None of the witnesses
who appeared at the hearing testified thathe saw Murtha neglect
his work at any time during the morning . Instead , according to
undenied testimony, Murtha approached Neiman on all 3 occa-
sions only in the course of his duties which carried him to
various parts of the plant. It is this group of 3 hurried con-
tacts between an employee in the course of his duties and his
union representative which our colleagues characterize as a
"morning-long period of agitation and protest."
Both the Trial Examiner and the majority opinion, however,
lay great stress upon the substance of these conversations. On
the first occasion in which Murtha spoke to Neiman, he pro-
tested the morning delivery by the merchandiser and asked
that Neiman tell the Respondent to stop the practice. Neiman
replied that the Union had condoned emergency deliveries by
such employees. It should be noted that this was the first time
any representative of the Union had so informed the employees
and such advice was contrary to the statement of the Union's
business agent at the meeting 2 weeks earlier. Later in the
morning, in the second of his contacts with Neiman , Murtha
asked that Neiman call the Union to check on its position in the
matter--a reasonable request in view of the sudden change in
the announced policy. The call was made but could not be com-
pleted . Murtha later returned and a call was again made to the
union offices by the shop steward. Following this call, Murtha,
according to the undenied testimony at the hearing, then did
nothing further concerning the protest he had raised.
The Trial Examiner, as noted, finds that this activity con-
stituted an incitement to strike. Our colleagues find that it
was "designed" to incite strike action --a somewhat obscure
differentiation . Yet none of the witnesses who appeared at the
hearing testified that at any time they saw Murtha request any
employee'to strike or even temporarily stop work. None of the
witnesses , including those of the Respondent , testified that
Murtha caused any work stoppage or disruption in the work of
any employee on that morning. Onthe contrary,those witnesses
who worked on the warehouse floor in areas adjacent to Murtha's
work station unanimously testified that Murtha did not request or
cause any employee to strike or stop work.
KRAFT FOODS COMPANY 1169
In the complete absence, therefore , of any work stoppage
caused by Murtha or any request on his part to any employee
to strike , what remains to substantiate the conclusion that he,
in fact, incited a strike? The Trial Examiner, while not dis-
crediting the valid and uncontradicted testimony of these wit-
nesses who had personally observed Murtha's activity instead
accepts the testimony of Ternosky as to what Neiman allegedly
told him that Murtha allegedly did. This, the statement by one
person as to what he supposedly was told by a second person
as to what a still different person supposedly did, is such
obvious hearsay as to be inadmissible in any court of law.
Yet the Trial Examiner concludes that it may be accepted in
preference to the mass of contrary , valid evidence on the
further specious ground that Ternosky also testified that
Neiman had never reported such activity to him before. This
reasoning - which amounts to piling hearsay on hearsay--is,
to say the least, a novel concept . But, in fact , such compounding
of the remnants of rumors is useless in providing support for
the majority ' s conclusion, for, despite the erroneous statement
of the Trial Examiner, at no time in Ternosky's testimony did
he state that Neiman had told him that Murtha was actually
threatening to provoke a strike.
The majority opinion, while tacitly rejecting the hearsay
testimony of Ternosky as proof of an incitement to strike,
nevertheless places great stress upon a single comment made
by Murtha to Neiman. This comment, which Murtha testified as
having made during their first conversation , was that "all he
[ Neiman] had to do was to say that's it, and they couldn't move
the stuff." On cross-examination , Murtha restated the remark
as "I told him he didn't need to call the Union; all he had to
say is, it can't go out and it couldn ' t go out ." These statements
may, indeed, point to an overconfidence on the part of Murtha
in the ability of his union steward to influence his employer.
They may also be construed as the normal overstatements
which parties in collective -bargaining disputes are not unknown
to make in the heat of argument . They do not , however, under
any interpretation , amount to an incitement of Respondent's
employees to strike . The comment , whatever its precise
meaning may have been in the legally untutored mind of its
author , was quite clearly an attempt to persuade Murtha's
union steward to consider and take forward a grievance; a
grievance , indeed , which so far as the employees are concerned,
was already recognized and supported by their Union. It was not,
as the evidence previously mentioned clearly shows , attended
by any attempt or effort on the part of Murtha to "talk up a
strike " or request any such action among his fellow employees.
Even given its broadest interpretation , therefore , as a single
comment isolated from the context of his full complaint to
Neiman , it can hardly support a finding of " incitement" when
contrasted to the whole picture of Murtha's behavior on the
morning in question . Accordingly , its meager probative value
compared to the evidence of Murtha's other actions is certainly
339676 0 - 55 - 75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
far less proof of a conspiracy or a "design" to incite the
employees.
It is therefore clear that the conduct of Murtha on the
morning of his discharge, when viewed in its entirety, was
activity protected by the Act. Murtha, in the course of his work
and without requesting or causing any disruption of the work
of other employees, spoke to his union steward briefly on three
occasions. The subject of his conversation was a legitimate
grievance which bore directly upon his working conditions.
He requested that his union representative attempt to obtain
a cessation of the practice of which he complained. This we
submit, was an activity clearly and unquestionably within the
rights guaranteed by Section 7 of the Act and entitled to the
protection of his agency. Murtha, however, was discharged by
his employer as a result of this protected activity. Such a patent
violation of the Act cannot be justified and any attempt to so
justify it by terming his actions to have been an attempt to
cause a strike runs counter to the valid and admissible evidence
in this record. Moreover assuming Respondent's honest belief
that Murtha exceeded the bounds of protected activity, such
belief provides no defense, because, contrary to the finding of
our majority colleagues, the General Counsel has met the burden
of establishing that Murtha did not in fact exceed such bounds.
Nor is the lack of any obvious antiunion animus material for the
direct effect of this discharge was to penalize an employee for
the exercise of rights guaranteed by the Act:
It is apparent, accordingly, that the decision of our colleagues
to dismiss the complaint in this case raises serious implica-
tions. In the last analysis, the majority decision would seem to
hold that an employee maybe lawfully discharged for protesting
to his union representative concerning a grievance which he has
every reason to deem valid. To characterize such a protest as
an attempt to "usurp the functions of the duly authorized bar-
gaining agent,"5 as does the Trial Examiner, is completely
unwarranted. The entire extent of the limited protest made by
Murtha was channeled solely to his union representative and
sought the use of the Union's authority in support of its position
as indicated by the statement of its business agent at the earlier
meeting--not the evasion of its position. It is therefore impos-
sible to conclude, as does the Trial Examiner, that "Murtha
was seeking to compel the Respondent to accept his position"
without reference to the Union, when it was to the Union and not
the employees or the Respondent that Murtha went to lodge his
protest. To indict that action as an attempt to evade the griev-
ance procedure when the course taken by Murtha was precisely
that prescribed by the contract in existence at the plant is
4See Rubin Bros. Footwear, Inc., 99 NLRB 610.
5 Dazey Corporation, 106 NLRB 553, cited by the Trial Examiner as authority for this
conclusion, involves a factual situation so completely divergent from that herein as to require
no further analysis.
KRAFT FOODS COMPANY 1171
something we cannot understand. To accept such reasoning is
to provide a legal basis for the discharge of any employee
either so misguided or unfortunate as to seek the support of a
labor organization on a grievance which that organization has,
even sub rosa, decided against. We do not think that such
sweeping authority on the part of this or any other union is
either claimed or advisable.
As the complainant, Joseph Murtha, was clearly discharged as
a result of activity protected by the Act, we would therefore
find that the Respondent violated Section 8 (a) (1) and (3) and
order the usual appropriate remedy.
Intermediate Report
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the Labor Management Relations Act of
1947, 61 Stat. 136 (herein called the Act), was heard in Philadelphia, Pennsylvania, from
July 27 to 28, 1953, pursuant to due notice to all the parties. The complaint, issued on June
4, 1953, by the General Counsel of the National Labor Relations Board,, and based on charges
duly filed and served, alleged that the Respondent had engaged in unfair labor practices pro-
scribed by Section 8 (a) (1) and (3) of the Act by its discharge of one Joseph F. Murtha.
In its answer, duly filed, the Respondent conceded certain facts with respect to its business
operations, but denied the commission of the alleged unfair labor practices.
All parties were represented at the hearing, afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file
briefs and proposed findings and conclusions. At the close of its case. Respondent moved
to dismiss the complaint. This motion was taken under advisement; it is disposed of as will
appear hereinafter in this report. Oral argument was had by the attorneys for the General
Counsel and the Respondent and subsequent to the hearing the latter submitted a brief
which has been fully considered by the undersigned.
Upon the entire record in the case and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, maintains offices and places of business in various
States of the United States, including a branch office and warehouse at Philadelphia, Penn-
sylvania, where it is engaged in the sale and distribution of food products. Only its Philadelphia
branch is involved in this proceeding. Atthis latter location the Respondent's annual purchases
of materials and supplies exceed $4,000,000, at least 75 percent of which are received from
points outside the Commonwealth of Pennsylvania. Its annual sales of finished products
from this branch likewise exceed $ 4,000,000, and of this amount approximately 30 percent
are shipped across State lines to points outside the Commonwealth of Pennsylvania. Upon
the foregoing facts, the Respondent concedes, and I find, that the Kraft Foods Company, is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Food Driver Salesmen, Dairy and Ice Cream Workers Union, Local No. 463, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
'The General Counsel and the staff attorney appearing for him at the hearing are referred
to herein as the General Counsel and the National Labor Relations Board as the Board.
1 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL, herein called Teamsters (or the Union), is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events
For a number of years the Respondent has had contractual relations with the Teamsters,
its agreement during the period in question covering all the production and warehouse em-
ployees but not the sales or merchandising personnel.t In addition to the customary grievance
and arbitration provisions this contract also had a no-strike clause wherein the Union agreed
that it would not "authorize, sanction or approve any strikes, work stoppages or slowdowns."
On January 23, 1953, the Respondent discharged Joseph F. Murtha, one of its warehousemen.
The General Counsel alleges, and the Respondent denies, that this action was disc r uninatory.
It is this discharge which constitutes the only issue herein, there being no allegations of any
separate or independent violation of any other kind.
B. The discharge of Murtha
Shortly after 11 a. m. on January 23, Fred Neiman, shop steward for the Teamsters and
a warehouse employee, reported to Emil J. Ternosky, assistant branch manager, that he was
having trouble on the floor because Charles Young, a merchandiser, "had taken out [some
merchandise] for delivery and the [warehousemen] were going to go out on strike." After
Ternosky asked for an explanation, Neiman told him that because of objections Murtha had
raised when Young was assigned to deliver a truckload of orders that morning, a state of
turmoil prevailed among the employees and that the warehousemen were planning a walkout
unless the matter was settled. Ternosky then reminded Neiman that the agreement with the
Teamsters permitted the use of merchandisers. The shop steward replied that he was aware
of this fact and had so informed Murtha.A few minutes thereafter, Robert Bradley, warehouse
supervisor, reported to Ternosky that the shop steward had just reported trouble on the
warehouse floor, in that Murtha was "riling up the boys, and they were going to go on strike
on account of this merchandiser taking out merchandise." Bradley asked that Ternosky come
down to the warehouse section immediately.3 The latter testified that at this point he recalled
the fact that Murtha had been severely reprimanded only a short while before in connection
with another incident and that after hearing Neiman's account, he determined to dismiss
the employee at once. Murtha was thereupon ordered to report to the office where Ternosky
told him that he was discharged. When the employee inquired whether this was "For the
incident that happened downstairs," his superior answered, "Yes and for the episode we had
previously."4
The General Counsel alleged that on the morning in question there was in fact no work
stoppage and that Murtha's opposition to the use of a merchandiser for delivery work was a
legitimate effort on his part to protest this particular practice of the Company. The Re-
spondent contended that Ternosky was entitled to rely on the steward's report that Murtha
had provoked discussion of a strike; that, in the light of the prior warning given this employee,
his superior was justified in regarding such reported conduct on the day in question as "the
last straw"; and, finally, that Murtha's activity was unprotected since the practice about
which he complained was in conformity with the current collective- bargaining agreement
between the Company and the Union which contract had a no-strike clause.
It is plain from the record that the Respondent had a verbal agreement with the Teamsters
whereby the Company could use merchandisers to make emergency deliveries. Several of the
company officials responsible for negotiatuig contracts with the Unions credibly testified that
2 The latter, known as merchandisers, are concerned principally with erecting displays
in supermarkets and, in various other ways, assisting the sales personnel on their routes.
3 The branch offices were located on the second floor of the building and the warehouse
area covered a large section on the first floor
4The findings and quotations in the foregoing paragraph are based on the credited and
uncontradicted testimony of Ternosky,
5 William H Buchanan, branch manager, John G. Gleason, personnel manager for Kraft's
eastern division, and Ternosky.
KRAFT FOODS COMPANY 1173
this had been the situation for several years. They further testified that on about January
14, during the course of negotiations for a contract covering the female production em-
ployees, Thomas Barson, union business agent, had asked that they consider certain griev-
ances recently raised by the employees and that one of these protests concerned the Com-
pany's alleged abuse of the practice of using merchandisers to make deliveries. When the
company representatives assured Barson that they had not and would not resort to this prac-
tice except in emergency situations the Teamsters' officialagreed that they were free to con-
tinue to do so.6 Respondent's testimony in this connection was not contradicted. Indeed,
Thomas E. Fowler, Jr., one of the General Counsel's witnesses, testified that on January 23
he was present when Neiman told Murtha that the union agreement permitted merchandisers
to make emergency deliveries.
Murtha testified that at no time on the morning in question did he desert his post or call
upon his fellow employees to strike . His version of events in this regard was corroborated
by a number of his ardent partisans who followed him to the stand.1 On the other hand, Murtha
testified that when he discovered that Young had been assigned to deliver a load of company
products, he immediately set out to locate Neiman, that when he lodged his protest about
Young's assignment with the steward, the latter told him he had no intention of doing anything
about it, that he (Murtha) then insisted something should be done, and when Neiman indicated
that before taking any action it would be necessary to contact the Teamsters' office for
advice, he told Neiman that this was unnecessary since Neiman, as shop steward, could halt
the practice by simply delivering an ultimatum to the Company.8
Despite Murtha's testimony that he did nothing further about the matter that morning, Fowler
testified that Murtha subsequently contacted the dispatcher to learn whether Young would be
taking out any other orders, that he returned later to urge that Neiman call the union head-
quarters , that when this telephone call could not be completed Murtha came back a third time
for the same purpose and that on this occasion Neiman had a telephone conversation with
Barson in which the business agent stated that the Company's procedure on letting merchan-
disers take out deliveries was entirely proper. In the light of this testimony, in particular
that of Murtha himself, it is apparent that Murtha suggested to Neiman that he take steps to
halt the practice about which the employee was concerned and, further, that the activities
of the latter in support of this proposal were not confined to an isolated conversation with the
steward but extended over a considerable period of time that morning.
At a union meeting on about January 10, Murtha and other employees had protested the use
of merchandisers in making deliveries. Shortly thereafter Barson discussed the Company's
practice in this regard with the Respondent's management, but the fact that Murtha was one
of the members who had protested against this practice never came to the attention of any
supervisory official of the Respondent.9 There is no evidence of any kind that prior to January
23 the Respondent had knowledge of Murtha's concerted or union activities which would distin-
guish him from any other employee on the payroll. Moreover, there is nothing in the record
to indicate that the Respondent had a background of hostility to organized labor. In fact,
it had had contracts and, apparently, amicable relations with the Teamsters for years. Insofar
as Murtha was concerned it is likewise plain that about 2 months before his discharge he
had engaged in a gross breach of conduct involving one of the young female secretaries on
the office staff because of which Buchanan, the branch manager, had reprimanded him se-
verely and warned that any future misconduct would result in his immediate dismissal.
C. Conclusions
Here, the Respondent and the Union had a contract wherein the latter agreed that it would not
"authorize, sanction or approve any strikes, work stoppages, or slowdowns." This placed
6Barson was not called as a witness; counsel for the Respondent stated that at the time
of the hearing he was no longer with the Teamsters and that efforts to contact him prior to
the hearing had been unsuccessful.
7 Joseph A. McCarrick, James D. Malizia, L. P. Hoffman, and Fowler.
SMurtha testified, "I told him it was not necessary [to telephone the Teamsters' office]; all
he had to do was to say that's it, and they couldn't move the stuff." (Emphasis supplied.)
On cross-examination, Murtha reiterated, "I told him[Neiman] he didn't need to call the
Union; all he had to say is, it can't go out and it couldn't go out."
9 This finding is based upon the credited, undenied testimony of Ternosky, Buchanan, and
Gleason.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union and its agents under an affirmative duty to discourage walkouts or any action
verging on a strike during the term of the contract.io Consequently, when the shop steward
was confronted with a demand by Murtha that he immediately take steps to end a company
practice which the union officials had previously sanctioned, and that he do so with the
simple declaration that the merchandise "can't go out," Neiman had reason to be concerned
about the Union's obligation to discourage strikes or slowdowns. Moreover, it is clear
that Murtha's efforts to get action were not confined to a single, casual, conversation with
Neiman, but that, in fact, he came to Neiman about the matter several times that morning.
The General Counsel offered various witnesses to testify that they did not see Murtha
soliciting anyone to strike. On the other hand,Ternosky credibly testified that never before
had Neiman reported to him, as he did on this occasion, that a strike was being discussed
among the warehouse employees and that groups of men were away from their work. ii
When Neiman , the shop steward and duly designated employee representative , notified
Ternosky that Murtha was threatening to provoke a strike, Ternosky was entitled to rely
on this information (in the absence of collusion) n in deciding what action he would take.
Furthermore , it is apparent from Ternosky 's impulsive reaction to the steward 's remarks
that he was concerned only with the report that Murtha was causing a disturbance and not
with the nature of the complaint. Certainly there is no evidence that Ternosky was im-
pelled by any animus against union or concerted activity when he hastily decided that Murtha,
already the subject of one serious reprimand and a warning that he would be given only one
last chance , should be dismissed . iu Consequently , it is my conclusion that in effecting the
discharge of this employee the Respondent engaged in no violation of the Act.
The General Counsel's argument that Murtha 's conduct was protected concerted activity
so that the employee was immune from discipline or discharge is without substance. Re-
gardless of the vigor or lack of vigor with which Murtha pressed his demand for action on
Shop Steward Neiman, his goal was to compel the Respondent to abandon its practice of using
nonunion men on emergency deliveries despite the fact that that issue was already the
subject of an agreement between the Company and the Teamsters. Moreover, his conduct
was not directed toward accomplishing this objective through the Union, for Murtha himself
testified that he sought to convince Neiman that the latter could stop the practice in question
by acting on his own and without contacting the Teamsters' headquarters. In so doing,
Murtha was seeking to compel the Respondent to adopt his position without reference to
the Union 's business agent and without resort to the grievance procedure established by the
collective-bargaining contract. In view of these facts, here, as in Dazey Corporation, 106
NLRB 553, the employee's activity was directed toward usurping "the functions of the duly
authorized bargaining agent selected by the employees" and, as such, was unprotected. Fi-
nally, this conclusion is supported by the additional fact that the contract I%tween the Com-
pany and the Union had a no-strike provision. Cf. N. L. R. B. v. Rockaway News Supply
Company Inc., 345 U. S. 71.14
10 The contract specifically provided that the steward "see that each member of the Union
lives up to the rules of the Union and the Employer; and that this contract is not breached by
either the Employer or the Union." (Emphasis supplied.)
ii The General Counsel did not call Neiman as a witness.
2 The General Counsel conceded that he was not alleging that there had been any conspiracy
between the Company and the Teamsters.
i9Murtha never sought to protest his dismissal as a grievance under the contract. At the
hearing, he conceded that the Teamsters' business agent had refused to represent him in the
matter.
]d The decision in N. L. R. B. v. Nu-Car Carriers, Inc., 189 F. 2d 756 (C. A. 3), cert.
denied 342 U. S. 919, on which the General Counsel relied at the hearing, is not in conflict
with this conclusion. Apart from the fact that in the Nu-Car case the Respondent had engaged
in numerous acts in violation of the employees' organizational rights, the decision there
is clearly distinguishable from the present situation. In Nu-Car the Board held that the
discharge of the spokesmen for a minority group which was dissatisfied with certain pro-
visions in the contract dealing with the owner-operator system of truck transportation was
a violation of the Act because the dissidents had attempted to induce their union to change
a working condition and the discharge was an interference with the efforts of a minority
group to effectuate such a change. Here, there was no evidence that the Respondent, through
Ternosky or any of its other supervisors, had knowledge of any efforts on Murtha's part
MONTGOMERY WARD & COMPANY 1175
For the foregoing reasons, I will recommend that the complaint be dismissed in its
entirety.
Respondent , in an able brief filed with the Examiner , raised several additional arguments
in support of its motion to dismiss. However, in view of the conclusions set forth above. I
deem it unnecessary to pass upon any further aspects of the case.
On the basis of the foregoing and upon the entire record herein, I have reached the following:
CONCLUSIONS OF LAW
1. The Respondent, Kraft Foods Company, is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the complaint
within the meaning of Section 8 (a) (3) and (1) of the Act.
[Recommendations omitted from publication.]
prior to January 23 to induce his Union to change the practice in question . Moreover, and
most importantly, there was no evidence of any hostility on the part of the Respondent, as
there was in the Nu-car case, toward any efforts of the employees to persuade the Union
to abandon its agreement with the Respondent.
MONTGOMERY WARD & COMPANY and LOCAL 1627, RETAIL
CLERKS INTERNATIONAL ASSOCIATION, AFL. Case No.
18-CA-559. May 28, 1954
DECISION AND ORDER
On January 6, 1954, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above - entitled proceeding , finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices , and .recommending that it cease and
desist therefrom and take certain affirmative action as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter , the Respondent filed exceptions to the Intermediate
Report and a supporting brief . The Respondent also requested
oral argument . This request is denied as the record and brief,
in our opinion , adequately present the issues and the positions
of the parties.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report , the exceptions , the brief,
and the entire record in the case, and finds merit in the
Respondent' s exceptions.
On September 16, 1953, the Union began picketing the
Respondent's store for the purpose of obtaining certain eco-
nomic benefits in a collective -bargaining contract then under
negotiation . All employees continued working.
On September 17, a Railway Express driver , Dupey, came to
the store to deliver a number of packages . Ferrell, the Re-
108 NLRB No. 152.