Lo-K Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1961

134 N.L.R.B. 956 (N.L.R.B. 1961)

956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pompura's concerted activity and interest in union activity generally , there is no
direct evidence that Respondent was aware of John 's activity on behalf of the Team-
sters. Nevertheless , in the light of the record as a whole , such knowledge may be,
and is, inferred . Several factors warrant such a finding and two are especially sig-
nificant : ( 1) the timing of the discharge and (2 ) the abruptness thereof. As noted
above, the discharge took place on the date the organizational meeting on behalf of
the Teamsters was to take place and while John , the employee who had made the
initial contact with the Teamsters 3 days earlier , was informing employees of the
interest of the Teamsters in representing them and of the change in plans for holding
the organizational meeting. In addition , John was summarily dismissed at the end of
the first day of a pay period-dismissed without warning or explanation on Monday
night, April 10 , 1961-and the only activity by John Pompura at or about the time
of his discharge varying from his normal activity was his activity on behalf of the
Teamsters . These facts plus the small number of employees at the plant (40 to 45 of
whom 35 were women ) and the small size of the community where John 's activity on
behalf of the Teamsters took place warrant not only a finding and conclusion that
Respondent was aware of John 's Teamsters' activity, but, in the light of the other
facts noted in this report , a finding and conclusion that Respondent was motivated by
this activity in discharging John Pompura.
In the light of the fact that John Pompura was the kingpin for the Teamsters'
organizational activities , the sequence of events-especially the timing of the dis-
charge in relation to the organizational efforts, the failure of Respondent 's conten-
tions to stand up under close examination , and Respondent's resentment of concerted
and/or union activity , I am not convinced that Respondent 's contentions are anything
more than pretexts to conceal the real reason-antiunion motivation.
CONCLUSIONS OF LAw
In summary , I find and conclude:
1. The evidence adduced in this proceeding satisfies the Board 's requirements for
the assertion of jurisdiction herein.
2: Teamsters , Chauffeurs and Helpers Local Union , No. 491, and United Mine
Workers of America, District 50, are labor organizations within the meaning of
Section 2 (5) of the Act.
3. The evidence adduced establishes that Respondent discriminatorily discharged
and/or laid off John Jerome Pompura and thereby engaged in unfair labor practices
within the meaning of Section 8 (a) (1) and ( 3) of the Act.
[Recommendations omitted from publication.]
Lo-K Foods , Inc. and Dairy Employees Union , Local 754, Inter-
national Brotherhood of Teamsters, Chauffeurs , Warehouse-
men and Helpers of America . Case No. 13-CA-4199. Decem-
ber 5, 1961
DECISION AND ORDER
On August 31, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report herein, finding that the Respondent had not en-
gaged in the unfair labor practices alleged in the complaint and recom-
mending that the complaint herein be dismissed, as set forth in the In-
termediate Report attached hereto. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
134 NLRB No. 107.
LO-K FOODS, INC. 957
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
While adopting the Intermediate Report, we note that circumstances
attending the Respondent's termination of the alleged discriminatees
give rise to a suspicion of discriminatory motivation therefor. How-
ever, suspicion is not sufficient basis on which to predicate an unfair
labor practice finding. As found by the Trial Examiner, the record
evidence does not preponderate in favor of such a finding and we must
therefore dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges in the above -entitled case having been issued and served, a complaint
and notice of hearing thereon having been issued and served by the General Counsel
of the National Labor Relations Board, and an answer having been filed by the
above-named Respondent , a hearing involving allegations of unfair labor practices
in violation of Section 8(a)(1) and ( 3) of the National Labor Relations Act, as
amended, was held in Sterling, Illinois, on July 25 and 26, 1961 , before the duly
designated Trial Examiner.
General Counsel and the Respondent were represented at the hearing, and were
afforded full opportunity to present evidence pertinent to the issues , to argue orally,
and to file briets . Briets have been received from both parties.
Disposition of the Respondent 's motion to dismiss the complaint , upon which
ruling was reserved at the hearing , is made by the following findings, conclusions,
and recommendations.
Upon the record thus made, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Lo-K Foods , Inc., is an Illinois corporation , with principal office in Chicago,
Illinois, and place of business in Sterling , Illinois, at which latter place it is engaged
in the manufacture and processing of butter and other dairy products.
From November 1960 to July 1961 , the Respondent purchased and had shipped
to its Sterling plant from points outside the State of Illinois materials valued at
more than $50,000.
The Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Union is a labor organization admitting to membership employees
of the Respondent.
111. THE ALLEGED UNFAIR LABOR PRACTICES
° A. Setting and major issues
In September 1960, the Respondent leased a Sterling plant previously operated by
another milk-processing concern but which had been closed and idle for more than
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 years. Ray Lokay, an officer and apparent manager, described the condition
of the plant and its equipment at the time of lease as "just a general mess." During
the month of leasing four employees were hired, and by early 1961 eight em-
ployees were on the payroll.
During the first few months the work of such employees was varied, consisting
chiefly of cleaning up, repairing, moving, and getting new and old machinery in
shape for operation. All such employees hired were informed by Lokay that their
employment would be temporary or on a part-time basis. In February and March
1961, about a dozen more employees were hired and production was begun.
Two major products are processed and derived at this plant from milk and cream:
abutter and dried milk.
Sometime in early February a representative of the Charging Union visited the
plant, a fact coming to the attention of Lokay through Foreman Kraft, who told
Lokay he himself had been approached by the representative.
On February 16 Lokay called together the employees then on the payroll and
informed them, in substance, that he opposed their joining a "Chicago" union, and
suggested that they consider a "Dixon" local. (The issue as to whether on this
occasion Lokay also made unlawful threats is discussed in the following section.)
There is no evidence of union activity after early February until April 10, when
a meeting was held at an employee's home.
The chief issues are whether or not on February 17 the Respondent unlawfully
discharged employee Harry Riddle and on April 12 terminated the employment of
13 other employees.'
B. Lokay's speech of February 16
There is no dispute in the record that on this date Lokay told his assembled
employees that if they wanted to join a union he preferred to deal with a nearby
local instead of a "Chicago" union. (The Charging Union, whose representative
had visited the plant a few days before this, has its office in Chicago.)
Two of General Counsel's witnesses , Hurd and Richmond, quoted Lokay as
having made this threat? Two other employees testifying about the speech,
Riddle and Yeoward, did not refer to any threat of this nature. And General
Counsel himself, on cross-examination, elicited a flat denial from Lokay that he
made "any comment . about closing the plant."
In the opinion of the Trial Examiner the present state of the record fails to sus-
tain, with a preponderance of evidence, General Counsel's allegation that Lokay
did, in fact, threaten to close the plant.
C. The discharge of Riddle
Harold Riddle was one of the first employees hired by Lokay after the plant was
taken over. He was employed as a fireman and maintenance man, but a good part
of his time was spent doing other tasks required to put the plant in operating order.
He was discharged on February 17, the day after Lokay's speech. General
Counsel claims that the discharge was unlawfully motivated and for the purpose of
discouraging union membership.
The record discloses no union activity on Riddle's part. Nor is there any evidence
that any other employee was engaging in union activity at this time. The one
item of evidence tending to support an inference that Lokay had reason to believe
that Riddle would support a union, if and when organization began, is found in the
employee's undisputed testimony that during the discussion of unions the day before
his discharge he had told Lokay: "We would like to have a union in here so we
can get higher wages." According to his testimony, also, Lokay's reply was: "He
said he didn't want anything to do with the Chicago union whatever, in; his plant.
That he had trouble with them and he didn't want any more to do with them. We
could try the other union if we wanted to."
1 These 13 are: Leo Harrington, Jane Richmond (Fisher), Donald Hurd, Wayne Bollman,
Bonnie Weeks, Ely Miner, Jack Hippen, John Clary, David IIippen, Ted Penhollow, Charles
Koehler, Frank Yeoward, and Joyce Knelsen.
2 Hurd testified: "(Lokay) said if we would go for a union, the Chicago union . . he
would close the doors ." Richmond claimed that Lokay said: "He would close the doors
before he would allow them in "
LO-K FOODS, INC. 959
Also according to Riddle's testimony Lokay discharged him after criticizing him
for the way he had run a wiring conduit from one room to another. He quoted
Lokay as saying: "Harry . with this and other things . . I guess I'll have to
let you go." He replied: ". . . if you feel that way, well, I guess that's all right
with me."
Thus there is in Riddle's own account no direct evidence that Lokay discharged
him for expressing himself as in favor of a union, or that Lokay said anything
when firing him to create that impression.
On the other hand, reasonable factual support for Lokay's contention that Riddle
was discharged because of "improper firing, taking care of our boiler and not per-
forming his job as he was expected to," is found not only in the employee's testi-
mony but also in that of Norval Mitchell, manager of a local machine shop, who-
so far as the record reveals-was a disinterested witness. Riddle admitted that on
one occasion he permitted the water to get low in the boiler , causing a safety-plug
to melt. He admitted that "maybe (on) one or two occasions" water pipes had to
be replaced because of the "manner" in which he controlled the flow of hot water
to butter-making units. And Mitchell told credibly of replacing space bars and
grates because of the improper firing of the boiler, as well as replacing a "plug"
shortly before the employee's discharge.
The reasons advanced by Lokay for his action, having ample foundation in fact,
are not so unreasonable as to occasion disbelief.
In short, the Trial Examiner is of the opinion that General Counsel has failed
to sustain his burden of proof regarding his allegation that Riddle was unlawfully
discharged to discourage union activity.
D. The dismissals of April 12
On Monday night, April 10, 9 or 10 employees met at the home of Donald Hurd.
A representative of the Charging Union was present. Some of the employees
signed union cards.
Credible testimony establishes, and the Trial Examiner finds, that all but 2 of
the 13 employees listed in footnote 1, above, signed cards that night or before
April 12. The two exceptions are John Clary and Ely Miner, neither of whom
was called as a witness at the hearing.
In the early afternoon of April 12 Supervisor Kraft told employees that "due to
financial conditions" there would be a general layoff at the close of the shift.
Ten of the employees listed in the footnote cited were in fact dismissed later
that day and either were not recalled until later or not at all. The exceptions were
Yeoward, Knelsen, and Penhollow, each of whom testified that his or her layoff
was rescinded before it became effective.
It is General Counsel's contention that this general layoff , affecting more than
half of the number of employees then on the payroll, was to discourage union mem-
bership and activity.
The Trial Examiner is unable to find in the record any substantial evidence
tending to support a finding, essential if General Counsel 's position is to be sus-
tained, that before the layoff action was announced either Lokay or Kraft had any
knowledge or suspicion that a union meeting had been held or that any such ac-
tivity was being engaged in. Many of the employees testified that they had not
made known any such activity on their part. Thus General Counsel's case must
fall for lack of this necessary element of foundation.
On the other hand, Lokay's credible testimony, unchallenged on cross-examination
on this point, is to the effect that his sudden decision to reduce his working force
was prompted by the fact that that morning, April 12, he received notification that
his application for a financial loan had been turned down. He further testified,
credibly, that because of this he decided to make immediately effective certain
recommendations for reduction previously submitted to him by John Ernster, a
dairy manufacturing specialist, who for some weeks had been making studies of the
operations at the new plant. Lokay's testimony on this point was corroborated
by Ernster.
In short, the Trial Examiner concludes and finds that the preponderance of
evidence in the record fails to sustain the allegations of the complaint as to the
layoffs of April 12.
[Recommendations omitted from publication.]