Lever Brothers Co.

National Labor Relations Board - Board Decisions

Mar 1, 1967

163 N.L.R.B. 194 (N.L.R.B. 1967)

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Equitable Life Insurance Co.," inclusion of a
detached office derives from the fact that a detached
office is administered as part of the district office, as
in the instant case, and, hence, is appropriately
included with its parent office even though the two
offices may be some distance apart.
Finally, we find no merit in the Respondent's
contention that our unit finding herein is based on
extent of union organization, and, therefore, contrary
to Section 9(c)(5) of the Act. It is now well
established that Section 9(c)(5) was intended to
preclude the Board from basing its unit
determination solely on extent of organization where
other relevant criteria of appropriateness are absent.
It was not intended to invalidate units which, as
here, qualify under other tests of appropriateness.9
In view of the foregoing, and on the basis of
the record as a whole, the National Labor Relations
Board reaffirms its Order of March 25, 1963, in this
proceeding.
'163 NI.11B 138 , fn. 2. See, also, Metropolitan Life Insurance
Comport) (If oonsocket , B.I. ), supra , fn. 22.
F' N. I.. K.B . v. Metropolitan Life Insurance Co., supra;
Metropolitan 1.i1i• In .arroner Co. (Woon s ocket , R.I.), supra , In. 20;
The Western and ,Southern l , i/i• Insurance Cu., supra.
Lever Brothers Company and International
Chemical Workers Union , Local No. 452.
Case 21-CA-6891.
March 1, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND J ENKINS
On August 26, 1966, Trial Examiner Howard
Myers issued his Decision in the above - entitled
proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, that the conduct complained of was an
isolated incident, and that the violations found did
not warrant the issuance of a remedial order, and
recommending that the complaint be dismissed in its
entirety, as set forth in the Trial Examiner's
Decision attached hereto . Thereafter , the General
Counsel filed exceptions with a supporting brief, and
the Respondent filed cross -exceptions and a reply
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
' Member Brown secs no5 need for, and there fore does not join
his colleagues in, directing the remedial order in the special
eircumslancos of I his case.
z As to Respondent 's posting of a notice disavowing any
involvement iu the "clainu •d" interference with the "Shop
Steward ill the Machinist Section of the Mechanical
Ilrparlnu•ul ," we do not feel that this action was sufficient to
overcouu • the adverse effects caused by the unfair laborpractice.
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and cross-
exceptions, the brief and reply brief, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner, with the following modifications:
We agree with the General Counsel that, under
the circumstances of this case, a remedial order
should issue.' Foreman Koster's conduct in calling
together the employees under him, and telling them
in no uncertain terms that they should change their
shop steward or things will get rough for them,
strikes at the very heart of established collective-
bargaining relationships. In the overwhelming
majority of collective-bargaining agreements, the
foreman-steward relationship is generally the first
stage of the grievance procedure, and, as the Act
envisages, each party is entitled to the unrestricted
services of its representative. We are not unmindful
of the fact that there is but one incident before us.
However, not only would Koster's actions directly
affect Blankenship's relations with the employees he
represented in the machinist section as steward, but
could very likely have a direct impact on the
relationship between other stewards and the
employees they represent. In our opinion, the
dangers implicit in Koster's conduct can only be
remedied by the issuance of a cease-and-desist order
with the required notice posting.2
The Effect of the Unfair Labor Practicer Upon
Commerce
The activities of Respondent s ;t forth in section
III of the Trial Examiner's Decision, occurring in
connection with its operations described in section I
of the Trial Examiner's Decision, have a close,
intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
The Remedy
It having been found that Respondent has
engaged in certain unfair labor practices prohibited
by Section 8(a)(1) and (2) of the Act, it will be ordered
to cease and desist therefrom and take specific
The notice does no more than disavow involvement in conduct not
recognized to have occurred, was not posted until November 15,
6-1/2 months after the incident, and only after Respondent was
notified of the General Counsel's intention to issue a complaint in
this case. It also appears that the notice was only posted in the
machinist section, while it would appear from the record that
employees in other sections were aware of the occurrence of the
illegal conduct.
163 NLRB No. 29
LEVER BROTHERS COMPANY
affirmative action, as set forth below, designed to
effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in, and during all times
material has been engaged in, a business affecting
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is, and at all times material has
been, a labor organization within the meaning of
Section 2(5) of the Act.
3. By Respondent's supervisor threatening the
employees that if they did not get rid of their shop
steward in the machinist section and replace him
with someone else, he was going to make it "rough
on everyone in the department," and that there
would be "hell to pay in the department,"
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (2) of the
Act.
4. The above-described unfair labor practices
affect commerce within the meaning of Section 2(6)
and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent;
Lever Brothers Company, Los Angeles, California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its
employees in the exercise of their Section 7 rights by
threatening its employees that if they do not get rid
of their steward in the machinist section and replace
him with someone else, it would be made rough on
everyone in the department, and that there would be
hell to pay in the department.
(b) Interfering with the internal administration of
International Chemical Workers Union, Local
No. 452, by threatening its employees that if they do
not get rid of their steward in the machinist section
and replace him with someone else, it would be
made rough on everyone in the department, and that
there would be hell to pay in the department.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their right to self-organization, to form, join, or assist
said Union, or any other labor organization, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, and to refrain from
any or all such activities, except to the extent that
such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section
8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
195
2. Take the following affirmative action to
effectuate the policies of the Act:
(a) Post at its plant in Los Angeles, California,
copies of the attached notice marked "Appendix."3
Copies of said notice, to be furnished by the
Regional Director for Region 21, after being duly
signed by the Respondent's representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 21, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
' In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, or
coerce our employees in the exercise of their
Section 7 rights by threatening our employees
that if they do not get rid of their steward in the
machinist section and replace him with
someone else, it would be made rough on
everyone in the department, and that there
would be hell to pay in the department.
WE WILL NOT interfere with the internal
administration of International Chemical
Workers Union, Local No. 452, by threatening
our employees that if they do not get rid of their
steward in the machinist section and replace
him with someone else, it would be made rough
on everyone in the department, and that there
would be hell to pay in the department.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to form, join, or assist said Union, or any other
labor organization, to bargain collectively
through representatives of their own choosing,
or to engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all
such activities, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a
condition of employment, as authorized by
295-269 0-69-14
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure
Act of 1959.
LEVER BROTHERS
COMPANY
(Employer)
opportunity was afforded the parties to be heard, to
examine and cross-examine witnesses, to present evidence
pertinent to the issues, to argue orally on the record at the
conclusion of the taking of the evidence, and to file briefs
on or before July 6. A brief has been received from the
General Counsel which has been carefully considered.3
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be'
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 South
Broadway, Los Angeles, California 90014,
Telephone 688-2200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HOWARD MYERS, Trial Examiner: Upon a charge duly
filed on August 18, 1965,1 by International Chemical
Workers Union, Local No. 452, herein called the Union,
the General Counsel of the National Labor Relations
Board, herein respectively called the General Counsel2
and the Board, through the then Acting Regional Director
for Region 21 (Los Angeles, California), issued a complaint
dated November 18, against Lever Brothers Company,
Los Angeles, California, herein called Respondent,
alleging that Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (2) and Section 2(6) and (7)
of the National Labor Relations Act, as amended from
time to time, 61 Stat. 136, herein called the Act.
Copies of the charge and complaint, with notice of
hearing thereon, were duly served on Respondent and
copies of the complaint and notice of hearing were duly
served on the Union.
Specifically, with respect to unfair labor practices, the
complaint alleges that on or about May 1, Chester Koster,
a Respondent foreman, told certain employees whom he
had assembled, "he wanted them to get rid of their union
steward, Richard Blankenship, and if the employees did
not get rid of their union steward, hardships would be
imposed upon them."
On November 30, Respondent duly filed an answer
denying the commission of the unfair labor practices
alleged.
Pursuant to due notice, a hearing was held before me in
1966 on June 2 and 3, at Los Angeles, California. The
General Counsel and Respondent were represented by
counsel and participated in the hearing. Full and complete
Unless otherwise noted, all dates refer to 1965.
s This term specifically includes counsel for the General
Counsel appearing at the hearing.
3 On July 6, the General Counsel filed a motion to correct
certain inaccuracies appearing in the stenographic report of the
FINDINGS OF FACT
I. THE RESPONDENT'S BUSINESS OPERATIONS
Lever Brothers Company, a Maine corporation, is
engaged in, and during all times material was engaged in,
the manufacture, sale, and distribution of soap,
detergents, toiletries, margarine, and other household
goods. Respondent operates plants located in various
States of the United States, including one located in Los
Angeles, California.
Respondent, during the 12-month period immediately
preceding the issuance of the complaint herein, in the
course and conduct of its business, purchased,
transferred, and delivered from points located outside the
State of California, to its Los Angeles, California, plant,
the employees of which are the only ones here involved,
goods and materials valued in excess of $50,000. During
the aforesaid 12-month period, Respondent's out-of-State
shipments amounted to more than $50,000.
Upon the basis of the foregoing facts, it is found , in line
with established Board authority, that Respondent is
engaged in, and during all times material was engaged in, a
business affecting commerce, within the meaning of
Section 2(6) and (7) of the Act and that its business
operations meet the standards fixed by the Board for the
assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting - to
membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory Statement
For approximately the past 15 years the Union has been
the collective-bargaining representative of Respondent's
Los Angeles, California, plant employees, the only persons
here involved.
Chester Koster was first employed at the
aforementioned plant on March 12, 1951, as a machinist.
On August 8, 1964, he became foreman of the machine
shop and was such at the time of the hearing." In or about
1952, Koster was appointed the Union's steward of the
machine section and held that position until a few months
immediately prior to becoming the foreman of said
section.5
hearing. The motion is hereby granted and the motion papers are
received in evidence and marked Trial Examiner's Exh. 1.
' Throughout Koster's entire employment with Respondent, he
worked in and/or supervised the plant's machine section.
5 Koster also served on the Union's executive board for a 1-year
period ending June 1964.
LEVER BROTHERS COMPANY
B. The Pertinent Factss
About 7 a.m. on May 1, Koster assembled the
approximately 15 employees composing the entire
complement of the machine section? to discuss with them
certain problems which had arisen between himself and
Richard Blankenship, the union steward of the machine
section.9
Blankenship testified that Koster told the assembled
employees that he was having difficulty coordinating the
various things in the department; that he did not like the
way the department was operating; that he could not get
along with the present steward (Blankenship) and, in fact,
did not intend to get along with him; and that if the Union
did not replace Blankenship as steward, he was going to
make it "rough" on everyone in the department.
Blankenship further testified that after Koster had
repeatedly demanded that Blankenship be replaced as
steward, several employees, including Paul Nickelson and
Alfred Dutz, asked Koster, "Are you telling us that we
have to get rid of our elected steward and get another
steward that you can get along with, or you going to make
it rough on everybody?", Koster replied, "yes, that is
exactly what I mean"; that when Alfred Smith, another
employee, asked Koster, "Are you serious?" Koster
replied, "I certainly am," and that Smith said, "Well, you
must be out of your gourd" and then went on to say that,
the union members had a right to select who they wanted'
as steward and that they were satisfied with Blankenship.
Nickelson testified that Koster remarked on the
occasion referred to immediately above that Blankenship
should be replaced by another steward, otherwise, "it
might be a little hard to work in the department if there
was not something done about the matter"; that Koster
also remarked that if Blankenship remained as steward
"there would be hell to pay in the department"; and that
when he asked Koster if he really meant that Blankenship
should be removed as steward, Koster replied in the
affirmative.
Harlan McCray testified that he had been in
Respondent's employ for a little over 14 years; that from
June 1965 until sometime in March 1966, he was the
Union's president; that at the aforementioned May
meeting, Koster remarked that the relationship between
him and Blankenship had so deteriorated that he could no
longer continue the foreman-steward relationship and that
if Blankenship was not removed as steward "there was
going to be hell to pay" and he (Koster) "was going to be on
all of our backs until" Blankenship was replaced; that
when Smith, Nickelson, and Dutz each asked Koster
whether he was really telling the employees to get rid of
Blankenship as steward, Koster replied in the affirmative.
Regarding the aforesaid meeting, which lasted some 40
to 60 minutes , Koster testified that he opened the meeting
' In the light of my observation of the conduct and deportment
at the hearing of all the persons who testified , and after a very
careful scrutiny of the entire record, all of which has been
carefully read and parts of which have been reread and rechecked
several times , and being mindful of the contentions of the parties
with respect to the credibility problems here involved, of the fact
that in many instances testimony was given regarding events
which took place many months prior to the opening of the hearing,
and of the fact that very strong feelings have been generated by
the circumstances of this case , coupled with the fact that it would
unnecessarily protract this Decision to summarize all the
testimony or to spell out fully the confusion and inconsistencies
therein, the following is a composite picture of all the factual
issues involved and the conclusions based thereon The parties
may be assured that in reaching all resolutions , findings, and
197
by referring to certain problems which had arisen in the
department and that he wanted to discuss them with the
men; that he stated that Blankenship "was probably not
getting a clear picture to the people, in our relationship,"
and that he wanted to clarify the situation; that he then
reviewed a certain "involvement" Blankenship had with
other employees in the section and certain personal
problems which existed between Blankenship and
himself; that "basically the motive behind the meeting was
so that the relationship between the foreman and the
steward are based on facts, not rumors, or hearsay, and
dealings between the foreman and steward have to be in a
cordial and harmonious manner on facts, and facts alone";
and that after he pointed out that Blankenship wanted him
"to adhere strictly to the letter of the law [sic] of the
[bargaining] contract," he told the employees that if he
followed Blankenship's request then he would expect the
employees to also follow the terms of the agreement, and if
that procedure was followed the employees would be the
losers.
Koster further testified that he told the assembled
employees "who their steward was made very little
difference to me, because I had to deal with the steward.
Whether it was Blankenship or somebody else made very
little difference, but honesty is the primary factor"; that
when Smith and Dutz each asked him, "In other words, we
have to get [rid of] Blankenship," he replied that was not
what he intended to convey because "what you people
[should] do is [to] discuss this matter, and see if you can
come to some kind of an understanding between your
steward and,;-the workers, so that" the true facts are
brought to light and "we could then proceed in an orderly
manner"; and that he then asked the employees "to talk it
over amongst themselves, and see if we would resolve this
problem in a businesslike and friendly atmosphere ...
[and] let Mr. Blankenship let me know just what their
feelings were on this meeting."
In the light of my observation of the conduct and
deportment of Blankenship, Nickelson, McCray, and
Koster while each was on the witness stand, and after a
very careful scrutiny of their respective testimony, I find
that Blankenship's, Nickelson's, and McCray's versions of
what transpired at the aforementioned meeting to be
substantially in accord with the facts. This finding is based
mainly, but not entirely, on the fact that Koster gave me
the distinct impression that he was studiously attempting
to conform his testimony to what he considered to be to the
best interest of Respondent. On the other hand,
Blankenship, Nickelson, and McCray each impressed me
as being a person who was careful with the truth and
meticulous in not enlarging his testimony beyond his
memory of what was actually said at the aforesaid
meeting-9
conclusions , the record as a whole has been carefully considered;
relevant cases have been studied, and each contention advanced
has been weighed , even though not specifically discussed
' The meeting took place at the end of the first shift and the
beginning of the second shift The one employee working on the
third shift did not attend.
8 Blankenship , at the time of this meeting, was also the Union's
recording secretary.
9 This is not to say that at times Blankenship, Nickelson, and
McCray were not confused on certain matters or that there were
not variations in their testimony But it should be noted that the
candor with which each of them admitted that they could not be
certain as to dates , times, or exact words used only serves to add
credence to what a careful study of their testimony shows what
they honestly thought and believed to be the facts
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Considerable testimony was elicited as to whether or not
John Cooney,10 the industrial relations manager of the
RECOMMENDED ORDER
plant here involved from May or June 1962 until October 1, It is recommended, upon the basis of the foregoing
1965, had been informed by Blankenship and by any other findings of fact and conclusion of law, that the complaint
union officials on and after the date of the above-referred be dismissed in its entirety.
Koster meeting regarding Koster's demand for
Blankenship's removal as the machine section steward.
Cooney testified that the first time he, and as far as he
knew any other Respondent official knew, that Koster
demanded or requested that Blankenship be replaced as
steward was on, or shortly after, the day Respondent
received the copy of the charge filed herein.
On the other hand, Blankenship and Homer Virgil, the
Union's then financial secretary and executive board
member, testified that on five separate occasions, between
the date of the aforesaid Koster meeting and the filing of
the charge, Cooney was advised by either Blankenship or
other union officials of the incident and that on each
occasion the Union demanded that Cooney take
appropriate action.
It would serve no useful purpose to here resolve this
conflict for the fact remains that Respondent must be, and
is, held responsible for Koster's above-described
remarks. i t
C. Concluding Findings
I am convinced, and find, that by Koster's demand for
Blankenship's removal as the union steward, otherwise
the employees in that section would suffer dire
consequences was not only violative of Section 8(a)(1) of
the Act, but was also violative of Section 8(a)(2) of the Act
because said remarks attempted to interfere with the
normal, lawful internal affairs of the Union. However, I do
not consider this isolated incident, standing alone and
unrelated to any other antiunion conduct of Respondent,
coupled with the fact that (1) Koster's remarks were
directed to the 15 or 16 employees under his direct
supervision whereas at the time of his remarks there were
596 unit employees; (2) Respondent and the Union have
enjoyed a good history of labor relations over a period of a
great number of years; and (3) search of the Board's
decisions reveals that at no time, from the effective date of
the so-called Wagner Act to date, has the Board ever
issued a cease-and-desist order against Respondent, to be
sufficient to warrant the issuance of a remedial order by
the Board in this proceeding. Accordingly, I recommend
that the complaint be dismissed in its entirety.
I am not unmindful that, despite the fact that the Union,
through Blankenship and others, complained on five
different occasions to Respondent about Koster's above-
referred-to remarks, Respondent took no effective action
to repudiate or disavow them.12
On the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in, and during all times
material has been engaged in, a business affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is, and at all time material has been, a
labor organization within the meaning of Section 2(5) of the
Act.
3. It would not effectuate the purposes of the Act for
the Board to issue a remedial order based upon the facts
herein found.
1' Erroneously referred to in the stenographic transcript of the
hearing as John Kooney
11 See, for example, Herb Sadler Budweiser Distributing Co ,
153 NLRB 119.
12 On or about November 15, after Respondent had been
advised by the General Counsel that a complaint was about to be
issued in this matter, Respondent posted the following notice on
its plant bulletin boards
A claim has been made that the Company was involved in
interfering with the retention of the Shop Steward in the
Machinist Section of the Mechanical Department The
Company disavows any involvement in interfering with the
selection or retention of Union officials or representatives
In order that there be no misunderstanding, we want the
Company's position to be made absolutely clear
Management regards the selection of Shop Stewards or other
Union officials to be solely the concern of the Union.
Accordingly, no foreman or other representative of
Management will interfere with the members' selection of
their Union representatives
I find that the above-quoted notice does not repudiate, nor does it
disavow, Koster's unlawful conduct
General Electric Company, Battery Products,
Capacitator Department and International
Brotherhood of Electrical Workers,
AFL-CIO and Local 2156, International
Brotherhood of Electrical Workers,
AFL-CIO. Cases 12-CA-2793, 2920, and 3268.
March 2, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 25, 1966, Trial Examiner George A.
Downing issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices in violation of the National Labor Relations
Act, as amended, and recommending that the
Respondent cease and desist therefrom and take
certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He further
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended dismissal as to them. Thereafter,
the Charging Party and Respondent filed exceptions
to the Trial Examiner's Decision and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
163 NLRB No. 30