Ore-Ida Potato Products, Inc.

National Labor Relations Board - Board Decisions

May 6, 1959

123 N.L.R.B. 1037 (N.L.R.B. 1959)

ORE-IDA POTATO PRODUCTS, INC. 1037
Accordingly, we find that the multiplant unit is now appropriate,
and that three separate single-plant units are no longer appropriate
for purposes of collective bargaining.5
We find that the following employees of the Employer constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act : s All hourly paid and piece-
work production and maintenance employees at the Employer's
Waterbury, Connecticut, manufacturing plants, excluding clerical
and salaried employees, timekeepers, press checkers, maintenance
electricians, garagemen and truckdrivers, watchmen, gatemen, guards,
executives, foreladies, foremen, and all other supervisors as defined in
the Act.
[Text of Direction of Election omitted from publication.]
5 Eaton Manu facturing Company, 121 NLRB 813; Gulf Atlantic Warehouse Company,
111 NLRB 1249 ; Owens -Illanoas Glass Company, 108 NLRB 947; The Goodyear Tire and
Rubber Company, 105 NLRB 674. On November 3, 1958, the Board, on the basis of the
facts presented in the motion , rejected the Petitioner ' s motion to amend certification on
the ground that it did not reflect that bargaining had been conducted on the basis of a
single multiplant unit. The Board 's action on the motion is not controlling here as, apart
from any other considerations , there is evidence here which was not alleged in the motion
which warrants our reaching a different result.
O There is no dispute as to the composition of the unit.
Ore-Ida Potato Products, Inc., and Oregon Frozen Foods Com-
pany and Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO. Case No. 36-CA-856. May 6,1959
DECISION AND ORDER
On November 13, 1958, Trial Examiner Maurice M. Miller issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Re-
port attached hereto. Thereafter, the Respondents filed exceptions
to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Fanning].
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 In-
termediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications
and exceptions.
123 NLRB No. 128.
1038 DECISIONS,:OF NATIONAL LABOR RELATIONS BOARD
1." The Trial Examiner found that Personnel Manager Parker Fill-
more's designation of employees Waldo Jones and Maxine Merrill
as "ringleaders" of the Union's organizational campaign implied
that their activity in behalf of the Union was under surveillance and.
violated; Section 8 (a) (1) of the Act. 'We do not agree with this find-
ing. On January 16, while Fillmore was posting notices of the then
forthcoming election, Jones inquired about the date of the election.
Fillmore replied "You're one of the ringleaders" apparently suggest-
ing that as a leading union adherent, Jones should have known the
date. On the same date, Fillmore stopped to talk to Merrill at her
work station, and in the case of explaining the financial condition of
the Respondent, also referred to her as a "ringleader." We do not
believe under the circumstances of this case that Fillmore's reference
to Jones and Merrill as ringleaders may reasonably be construed as.
indicative of a violation of the statute by the Respondent. We shall
therefore dismiss the complaint in this respect.
2. We also do not agree with the Trial Examiner that Fillmoret
solicited the active assistance of employees to combat the organiza-
tional efforts of the Union in violation of Section 8 (a) (1). As found.
by the Trial Examiner 2 or 3 days before the election Fillmore
stopped Jones in the shop and asked him "to turn around and talk
against the union." Jones made no reply to Fillmore. A few days
after the election, Fillmore asked another employee, Roger Strawn,
"to junk the union." We are of the opinion that Fillmore's remarks
do not warrant the inference drawn by the Trial Examiner that they
constituted unlawful solicitation of employees to campaign against
the Union. Viewed in the circumstances fully detailed in the Interme-
diate Report, we find that the evidence does not preponderate in favor
of a finding of a violation of Section 8 (a) (1) of the Act. In our
opinion, the remarks amounted to no more than the solicitation of
employees to abandon their union sympathies.'
3. We likewise are unable to agree with the Trial Examiner that
the Respondents violated Section 8 (a) (1) by soliciting specific com-
plaints from the employees concerning their working conditions. Five
days before the election, in the course of the conversation between
Fillmore and Merrill referred to above, Merrill interrupted Fillmore
and told him "that it wasn't so much the money, that it was the
conditions that we were working under, such as lunchrooms and
restrooms. . . ." Fillmore thereupon asked Merrill if she would be
willing to repeat these complaints directly to Otis Williams, the
Respondents' vice president. There is no evidence that Fillmore's
starting the conversation with Merrill was motivated by a desire to
elicit specific employee complaints. This fact, together with Merrill's
1 Member Fanning would find that Fillmore's remark to Jones described above con-
stituted unlawful solicitation and a violation of Section 8(a) (1).
ORE-IDA POTATO PRODUCTS, INC. 1039
testimony that she initiated the discussion relating to the complaints,
in our opinion, negates any basis for finding unlawful solicitation.
4. We find in agreement with the Trial Examiner, however, that
Fillmore's invitation to Merrill described above, and other employees
to present. their, grievances directly to Vice President Williams, to-
gether with his decision to form an employee committee through which
the employees would be enabled to present grievances to management
and which the Respondents ultimately recognized, is a violation of
Section 8(a) (1). We agree with the Trial Examiner that the above
conduct, in the face of the Union's pending representation petition
and the Board-directed election, was reasonably and foreseeably cal-
culated to interfere with the exercise by the employees of the rights
guaranteed in Section 7 of the Act.2
5. We also agree with the Trial Examiner that Respondents violated
Section 8 (a) (1) of the Act by Fillmore's threat to Jones of reclassi-
fication and a reduction in wages in the event of a union victory in
the Board election. Although Jones at that time was classified as a
roustabout, the lowest unskilled employee classification, any sugges-
tion of a lower classification under the circumstances could only have
been construed as a threat to his employment tenure.3
Having found that the Respondents violated Section 8 (a) (1) of
the Act in the manner set forth above, we shall order the Respondents
to cease and desist therefrom. However, unlike the Trial Examiner,
we find that the Respondents' conduct does not demonstrate a general
opposition to the purposes and policies of the Act, and we shall there-
fore order the Respondents to cease and desist from engaging in the
conduct which we have found violative of the Act and any like or
related conduct.
ORDER
Upon the entire record and pursuant to Section 10(c) of the Na-
tional Labor Relations Act, as amended, the National Labor Relations
Board hereby orders that the Respondents, Ore-Ida Potato Products,
Inc., and Oregon Frozen Foods Company, Ontario, Oregon, and their
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Supporting and attempting to form labor organizations.
(b) Threatening employees with job reclassifications and pay re-
duction in the event of a union victory.
(c) In any like or related manner interfering with, restraining,
or coercing their employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Amalga-
mated Meat Cutters and Butcher Workmen of North America, AFL-
See Wall Tube & Metal Products Co., 122 NLRB 13.
B 'Watson Bros. Transportation Company, Inc ., 120 NLRB 146.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO, or any other labor organization, to bargain collectively through
representatives of their own choice, or to engage in other concerted
activity for the purpose of collective bargaining and other mutual
aid and 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 em-
ployment as authorized in Section 8(a) (3) of the Act, as amended.
2. 'Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post in conspicuous places at their places of business in On-
tario, Oregon, including all places where notices to employees are
customarily posted, copies of the notice attached hereto marked
"Appendix A."' Copies of such notice, to be furnished by the Re-
gional Director for the Nineteenth region shall, after being duly
signed by the Respondents' authorized representative, be posted im-
mediately upon receipt thereof in conspicuous places, and maintained
by it for at least 60 consecutive clays thereafter. Reasonable steps
shall be taken by the Respondent to insure that said notice is not
altered, defaced, or covered by any other material.
(b) Notify the said Regional Director in writing, within 10 days
from the date of this Order, as to what steps they have taken to
comply herewith.
IT IS rURTIIER ORDERED that the complaint be dismissed insofar as
it alleges unfair practices not found herein to be violative of the Act.
4 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 "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
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 support and attempt to form labor organizations.
WE WILL NOT threaten our employees with job classifications
and pay reductions in the event of a union victory.
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 labor organizations, to join or assist
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own free choioe,
or to engage in other concerted activities for the purpose of
collective bargaining and other mutual aid or protection, or to
ORE-IDA POTATO PRODUCTS, INC. 1041
refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the National Labor Relations
Act, as amended.
ORE-IDA POTATO PRODUCTS , INC., AND
OREGON FROZEN FOODS COMPANY,
Employer.
Dated------------- --- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed and served, the General Counsel of the National Labor
Relations Board, in the name of the Board, caused the Regional Director for its
Nineteenth Region, at Seattle, Washington, to issue a complaint and notice of hear-
ing in this case on July 24, 1958, under Section 10(b) of the National Labor Rela-
tions Act, as amended, 61 Stat. 136. Therein, Ore-Ida Potato Products, Inc., and
Oregon Frozen Foods Company, designated jointly as the Respondents throughout
this report, were charged with certain unfair labor practices under Section 8 (a) (1)
of the statute. Copies of the complaint and notice of hearing were duly served
upon the Respondents named; they were also served upon the Union by virtue of
its status as the Charging Party in the case.
With respect to unfair labor practices, the General Counsel alleged that certain
conduct attributable to Personnel Manager Fillmore of the Respondents, imme-
diately prior to a representation election conducted by this agency on January 21,
1958, interfered with, restrained, and coerced the employees of these firms in the
exercise of rights statutorily guaranteed. In a joint answer, duly filed, the Respond-
ents conceded certain jurisdictional allegations of the complaint, denied others, and
denied the commission of any unfair labor practices.
Pursuant to notice, the hearing in this matter was held before a duly designated
Trial Examiner at Ontario, Oregon, on September 23, 1958. The General Counsel
and the Respondents were represented by counsel, and the Union by counsel and
a business representative. Each of the parties was afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce evidence per-
tinent to the issues. At the close of the testimony, oral argument in support of
the position taken by the General Counsel, the Union, and the Respondents was
heard. Briefs were subsequently received from the Respondent and the Union;
they have been duly considered.
FINDINGS OF FACT
Upon the entire record in this case, and my observation of the witnesses, I make
the following findings of fact:
1. THE RESPONDENTS' BUSINESS
Oregon Frozen Foods Company commenced operation, I find, in 1948; at all
material times it has functioned as an Oregon corporation, with its principal office
in Ontario, Oregon, where it is engaged in processing, freezing, packing, and ship-
ping corn. During 1957 the firm sold and shipped products valued in excess of
$50,000 to out-of-State customers. Ore-Ida Potato Products, Inc., began operations
in 1952; at all material times, it has likewise functioned as an Oregon corporation,
with its principal office in Ontario, Oregon, where it is engaged in processing, freez-
ing, packing, and shipping potato products. During 1957 this enterprise also sold
and shipped products valued in excess of $50,000 to customers located outside of
the State of Oregon.
508889-60-vol. 1.23-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint includes an allegation that the two firms involved in this case
constitute a single employer within the meaning of Section 2(2) of the statute.
Despite a formal denial of this allegation in their joint answer, the Respondents
have stipulated that they may be considered a single employer within the mean-
ing of the indicated statutory provision, as this agency has previously found.
Oregon Frozen Foods Company, etc., 108 NLRB 1668 and 112 NLRB 1503. On
the basis of this stipulation, and the agency's findings in the cases cited, I find
that the two enterprises, throughout the period with which this case is concerned,
conducted their operations in the same building, using substantially the same facilities,
the same office employees, the same maintenance employees, and many of the
same production employees. The firms, I find, have the same officers and many
common directors. And the same individuals hold a majority of stock in each.
The industrial complex which includes these enterprises also includes a business
entity designated as Oregon Industries Corporation, which owns the property uti-
lized by Ore-Ida and its sister enterprise for productive purposes. Oregon Industries
Corporation, however, has not been designated as a respondent employer in this
case. See Oregon Frozen Foods Company, 112 NLRB 1503.
In the light of the factual admissions noted, and upon the entire record, I find
the Respondents to be a single employer engaged in commerce, and business activ-
ities which affect commerce, within the meaning of the Act, as amended. On the
basis of the available evidence, and in the light of the Board's established juris-
dictional policy-see Jonesboro Grain Drying Cooperative, 110 NLRB 481, and
related cases-I find further that the assertion of the Board's jurisdiction in this
case is warranted and necessary to effectuate the statutory objectives.
II. THE LABOR ORGANIZATION INVOLVED
In the light of a formal concession by the Respondents herein, I find that
Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO,
is a labor organization within the meaning of Section 2 ( 5) of the Act , which has
admitted employees of the Respondents to membership.
III. THE UNFAIR LABOR PRACTICES
A. Background
1. The representation case
On or about September 10, 1957, an organizational campaign was initiated by
a union representative, among the production and maintenance employees of
the respondent enterprises. Thereafter on October 7, 1957, the Union filed a rep-
resentation petition (Case No. 36-RC-1303) with this agency; it sought an election
among the employees of Ore-Ida Potato Products, Inc., and Associates, specifically.
On December 12, 1957, the Board issued a Decision and Direction of Election
in the case which designated both of the enterprises cited in this report as the
"employer" involved. And on January 21, 1958, an election was held pursuant to
this Board decision.
The Union failed to win designation, therein, by a majority of the voting em-
ployees. Later, however, it filed objections to the conduct of the election. These
objections were considered by the Board in due course; in a supplemental decision
issued on July 9, 1958, it held that certain conduct attributable to the Respondents
constituted interference with the election, and set it aside. Ore-Ida Potato Products,
Inc., and Oregon Frozen Foods Company, 121 NLRB 40. The Union's charge in-
the present case had previously been filed on June 10, 1958; as previously noted,
the General Counsel's complaint in this matter issued on July 24, shortly after
the Board's Supplemental Decision on the objections.
2. Personnel Manager Fillmore
The course of conduct challenged as an unfair labor practice by the General
Counsel's complaint in this case has been attributed, primarily, to Parker Fillmore,
personnel manager of the respondent enterprises. The available evidence establishes
that, throughout the period with which this case is concerned. Fillmore was actually
employed by Oregon Industries Corporation; it is conceded, however, that he func-
tioned, at all material times, as the personnel director of the respondent enterprises.
No attempt has been made by counsel for the Respondents to deny responsibility for
his activities on the basis of his status as an Oregon Industries employee.
As a witness, Fillmore admitted his active interest in the outcome of the Board
election, and his participation in varous attempts to persuade employees of each
ORE-IDA POTATO PRODUCTS , IN C. 1043
Respondent to reject union representation . The available evidence establishes,
among other things, that two letters were prepared for distribution to the employees
of the Respondents prior to the election, at the instance of the president of the
respondent enterprises , which elucidated his opposition to their unionization;
Fillmore, I find, read the second of these letters aloud to invited employees , during
the "dinner" hour on each of three shifts at the plant.
His additional participation in the course of conduct characterized as an unfair
labor practice in the General Counsel's complaint will be discussed in the subsequent
sections of this report.
B. Challenged Conduct
1. The threat of reclassification
It is alleged in the complaint that Fillmore , on or about January 11, 1958, con-
fronted the employees of the Respondents with a threat of reclassification downward
and reduced pay, in the event of a successful effort by the Union to win representative
status. The available evidence in this connection , however, reveals but a single
instance of the conduct challenged.
Waldo Jones, a maintenance carpenter in the employ of the respondent enterprises,
had a conversation with Fillmore on January 11, 1958, in the latter 's office, prior
to the election previously noted. Previously , in the fall of 1957 specifically, Jones
had executed a union authorization card; his interest in union representation was
known, I find , to the personnel director of his employers . The testimony of the
carpenter , which I credit, establishes that Fillmore , in the course of the January 11
conversation , attempted to persuade him that the employees would lose certain
advantages if they chose the Union as their representative . Specifically , I find, Jones
was informed that a union victory in the election would ultimately lead to his re-
classification as a "roustabout " or common laborer, and that he would not receive
as much pay.
Fillmore's testimony , with respect to the incident , indicated that he considered his
relationship with Jones to be a friendly one. He conceded his awareness, at the
time of the conversation in question , of the fact that Jones was a union supporter,
but insisted that he had merely observed , in the course of their talk that, if the Union
won representative status, it would "classify" the employees for the purpose of wage
rate negotiations , and that Jones would be able to qualify for nothing more than a
"roustabout" classification , with a probable reduction in pay. As a witness, Fillmore
insisted that no threat to Jones was intended.
Upon the entire record, I have been persuaded that the personnel director 's version
of the conversation must be rejected . And I find merit in the General Counsel's
contention that the comments attributable to Fillmore suggested the possibiliy of
action by the Respondents , rather than the Union herein, and that they were, there-
fore, reasonably subject to interpretation by the employee involved as a threat and
not a mere prediction . Linn Mills Company , 116 NLRB 96, 99. As a witness,
Fillmore insisted that Jones had not been considered a qualified carpenter or me-
chanic. The record establishes , however, that he had never been so classified by the
respondent firms; any contention that he might not have deserved such a classifica-
tion , therefore , may be dismissed as immaterial . The personnel director 's testimony
shows that the carpenter had, in fact , been classified as a "roustabout" or common
laborer on the Respondent 's payroll. Under the circumstances , he could not have
anticipated or feared a lower classification . And even if such a classification con-
ceivably could have been assigned , pursuant to a union contract , its effectuation and
any pay reduction would have required the concurrence of the respondent enterprises.
Fillmore's reference to the possibility of a reclassification , in the event of a union
victory, and a resultant pay reduction , therefore , could only have been construed as a
threat to the employment tenure and status of the worker involved. And I so find.
2. Accusations
It is the General Counsel 's contention that Personnel Manager Fillmore, on or
about January 16, 1958, accused various employees of being "ringleaders" in the
Union's campaign for representative status; thereby , it is alleged , the impression was.
created that the Respondent had employee activities for and on behalf of the Union
under surveillance.
The testimony of Waldo Jones and Maxine Merrill in this connection , which Fill-
more did not expressly deny, establishes that on January 16 , 1958, in separate con-
versations , they were designated by the personnel director as "ringleaders" in the
union campaign . In the Respondent 's behalf, it is argued that the identity of the
union supporters was generally known and that Fillmore's reference to the interest
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Jones and Merrill in union representation ought not to be construed as indicative
of improper conduct on his part. Upon the entire record, however, this contention
must be rejected.' The opposition of the Respondents to unionization was clear;
under all the circumstances the designation of Merrill and Jones as "ringleaders" of
the Union's organizational campaign clearly implied that their activity in behalf of the
labor organization was under surveillance. The creation of such an impression in
the minds of employees clearly violated their employer's statutory obligation. Aero-
sonic Instrument Corp., 116 NLRB 1502, 1527; Idaho Egg Producers, 111 NLRB 93,
99, 103; Nashua Mfg. Corp., 108 NLRB 837, 841; F. W. Woolworth Company, 101
NLRB 1457, 1458; Knickerbocker Plastic Company, Inc., 96 NLRB 586, 587. And I
so find.
3. Solicitation of specific complaints
It is alleged in the complaint that the personnel director of the Respondents, on
or about January 16, 1958, sought to solicit specific complaints from employees
with respect to wages, hours, and working conditions, and that he promised, on
or about the 19th of the month, to take care of such complaints.
In this connection, it is the contention of counsel for the respondent enterprises, at
the outset, that employee Maxine Merrill was, in fact, the source of a request for
some "correction" in working conditions, and that Fillmore had solicited no em-
ployee complaints. In part, at least, this contention may be characterized as meri-
torious. Merrill's testimony with respect to her conversation with Fillmore on the
16th, which I credit, does establish that it began as follows:
Well, Parker accused me of being a ringleader of the union, which was new to
my knowledge. I was for it, and I didn't ever deny it, and he started telling us
the reasons why the plant couldn't afford more money, that the plant was in
the red, and he had to sell his home and invest it in the plant. At this point, I
interrupted him, and told him that it wasn't so much the money, that it was the
conditions that we were working under, such as the lunchroom and the rest-
rooms. For about 54 women, they had exactly two and the heating is terrible.
This recital does, indeed, suggest that Merrill may have initiated the discussion
which ensued with respect to employee complaints. The record establishes, however,
that Fillmore went on to ask her if she would be willing to present these complaints
directly to Vice President Otis Williams of the respondent enterprises. Upon the
receipt of her affirmative reply, I find, the personnel director left. When he
returned, approximately 15 minutes later, Merrill was asked specifically whether
she would repeat her complaints to Vice President Williams at 8:30 a.m. on the
18th of January, together with other employees; she replied that she would be willing
to do so.2 Under the circumstances, a conclusion that Fillmore, ultimately, solicited
Merrill to present specific employee grievances to a responsible official of the
Respondents would seem to be ineluctable. And later, when the other employees
at the plants were advised that they would be able to present grievances to the
management of the respondent enterprises at the January 18th conference and
subsequent conferences, the solicitation implicit in the effectuation of any grievance
procedure, I find, became patent.
It is argued in behalf of the Respondents that, under the statute, employees retain
their freedom to present grievances to employers, and that employers are likewise
free to entertain such a presentation without committing an unfair labor practice.
This contention, however, fails to take into account the fact that Merrill was actually
solicited to present her specific complaints to Vice President Williams, and that
other employees were invited to avail themselves of the opportunity to make a similar
presentation, at Fillmore's instance, under circumstances to be noted. And since
the solicitation in question took place such a short time before the scheduled elec-
tion, an inference would clearly seem to be warranted that it was prompted, at the
very least, by Fillmore's otherwise patent desire to forestall the designation of the
Union as an employee representative. In its total context, therefore, the personnel
'The testimony of Jones establishes that the conversation in which Fillmore thus
characterized him occurred on the very day when the personnel director posted the notices
of the scheduled January 21 election. He asked Jones if he knew when the election
would be held, and, when Jones replied that he did not know, Fillmore remarked, I find,
that he was a union ringleader. In its context, therefore, this characterization certainly
implied a taunt, since it suggested that Jones should have known the election date, of
which the personnel director had just been apprised. I so find.
2 At the time, however, Merrill was not advised, I find, as to whether she would be
expected to appear individually, with other employees, or in a representative capacity.
ORE-IDA POTATO PRODUCTS, INC. 1045
director 's effort to solicit the presentation of specific complaints-and his ultimate
indication , to be noted , that the grievances presented would be taken under advise-
ment-can only be characterized , properly, as an unfair labor practice . Milham
Products Company, Inc., 114 NLRB 1441 , 1445; cf., Eastman Cotton Mills, 90
NLRB 31, 32-33. And I so find.
4. The grievance procedure
It is the General Counsel 's further contention that Fillmore , on or about January
17, 1958, suggested the formation or revival of a grievance committee ; thereafter,
it is alleged , he and other officials of the respondent firms participated in the forma-
tion of such a committee , selected its employee members , and conferred with them
on and after January 18, 1958, at which time employee complaints were solicited
and taken under advisement.
Upon the entire record, there can be no doubt that Maxine Merrill's expression
of willingness to present employee grievances to Vice President Williams, when
communicated to the personnel director , provided the immediate impetus for the
formation of the employee grievance committee which eventuated . As a direct
result of Merrill 's declaration , I find, Fillmore conferred with Williams and decided
to sponsor the organization of an employees ' committee to present grievances to
management.
The brief submitted in behalf of the Respondents includes an assertion that the
formation of the committee was suggested by the employees and that it was "given
a trial" by the management of the firms . This contention must be rejected. Fill-
more's testimony in cross-examination clearly reveals his reponsibility for the
origination of the grievance procedure which was effectuated on the morning of
January 18 , 1958; it reads as follows:
Q. (By Mr. Richardson .) When did you decide to adopt this system of
Saturday morning meetings with committee representatives from the employees?
A. After I talked to Mr. Williams.
Q. And was that the same day of your conversation with Maxine Merrill?
A. Yes.
Q. You hadn't decided before that?
A. No, sir.
* * * * * *
Q. All right. Then you talked about the union first and that led into the
discussion of the toilets and the other grievances?
A. It probably did, yes, sir.
Q. Yes, now, you suggested to Maxine Merrill about a different system.
You don 't mean to suggest or to testify that this committee system on the Sat-
urday meetings was her idea, do you , Mr. Fillmore?
A. Maxine said that it didn't do any good to go to the foreman.
Q. It wasn't her suggestion ? She didn 't outline this?
A. No, but she suggested we should have a better system of taking care of
grievances.
Q. She didn't suggest the system , did she?
A. Not the system.
Q. It was your system, was it not?
A. Yes, that's right.
The committee , of course , did meet with Vice President Williams and Personnel
Director Fillmore on January 18 , and continued to meet every Saturday morning
for a number of weeks thereafter , to present complaints.
The Respondents assert that the committee members were selected, democratically,
by the employees. The available evidence , however, will not support this assertion.
It establishes that Merrill was expressly requested by Fillmore to be present at the
January 18 conference, ultimately , as the representative of the packaging depart-
ment day shift . And every other employee present at the conference in question,
in the office of Vice President Williams of the respondent enterprises , appears to
have been selected for membership in the group by a management representative.3
In some departments, I find, supervisory personnel-specifically Supervisor George
Little and Foreman Christianson-reported the decision of the management to entertain
grievances presented by a committee , and suggested the designation of specific employees,
initially, to function as the representatives of particular groups. On one occasion, I
find, Fillmore suggested an employee to serve on the committee. In every instance noted,
the individuals chosen by the management representatives appear to have been approved
by the employees . I so find.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is a suggestion, in the brief submitted on behalf of the respondent enter-
prises, that the committee which Fillmore envisaged and organized functioned only
as a "channel of communication" between the employees and management; as
such, it is asserted, the committee's procedure merely reflected a new approach in
the management's persistent attempt to achieve some degree of rapport with the
employees. The contention is based upon a misconception of the situation. It may
be conceded, for the sake of argument, that a managerial "open door" policy,
which is calculated to encourage employees, individually or in groups, to present
personal grievances and complaints directly to their foremen and higher manage-
ment representatives for adjustment, in the absence of any designated or selected
collective-bargaining representative, may be beyond statutory or administrative
interdiction. The committee which the Respondents organized and recognized at
Fillmore's instigation, however, did not involve such privileged employer-employee
relationships. It was organized as a representative group, and its membership-at
least at the outset-was chosen, in every realistic sense, by management representa-
tives. The group which met to confer with Vice President Williams in short-even
though it may have been approved by the employees as a whole-was not the
"bona fide, undominated, employee-management committee" which counsel for the
respondent enterprises has described as a mere channel of communication.
Upon the entire record, then there can be no doubt that Fillmore's decision to
form a committee, by means of which the employees of the respondent enterprises
would be enabled to present complaints for the consideration of management,
visualized the establishment of a group, which would be expected to function, in
a limited sense, as a collective-bargaining agent. The fact that Williams and Fill-
more, when apprised of an employee complaint, merely expected to indicate that
it would be taken under advisement by the management of the Respondents cannot
affect the validity of this conclusion. And the fact that his decision with respect to
the committee's organization stemmed from Employee Merrill's disclosure that her
interest in unionization had been stimulated by the failure of the Respondents to
deal effectively with earlier employee complaints, would clearly seem to warrant a
conclusion that the decision in question was rooted in a desire to undermine the
Union's representative status. Cf. Harrisburg Building Units Co., Inc., 116 NLRB
334, 352-353. Fillmore's program necessarily contemplated recognition of the
committee by the Respondents as representative of their employees. And when
it met with management representatives to discuss grievances, and to present specific
complaints with respect to working conditions, it functioned, clearly, as a labor
organization, within the meaning of Section 2(5) of the statute. The DeVilbiss
Company, 102 NLRB 1317, 1323; Cabot Carbon Company and Carbon Shops, Inc.,
117 NLRB 1633, enforcement denied, 256 F. 2d 281 (C. A. 5) [reversed and re-
manded 360 U.S. 2031. The willingness of the Respondents to recognize the
group as a representative organization, and to discuss the adjustment of specific
complaints, in the face of the Union's representation petition and the pendency of
a Board-directed election, might well have deserved characterization, in the com-
plaint, as a contribution of support to a labor organization, within the meaning of
Section 8(a)(2) of the Act, as amended. And, in the particular circumstances of
this case, the decision of the Respondents to pay the members of the group for the
time they spent in the performance of their committee functions might well have
been open to characterization as an act of interference with the administration of
the committee, and as a further contribution of support to the organization. No
such contentions have been advanced. Nevertheless, there can be no doubt that
Fillmore's decision to activate the organization as an employee grievance com-
mittee which the Respondents ultimately recognized was reasonably and foreseeably
calculated to interfere with the exercise by employees of the rights guaranteed them
in Section 7 of the statute. Nor can there be any doubt that the Respondents,
thereby, became involved in the commission of an unfair labor practice. I so find.
5. Solicitation
It is alleged in the complaint that Fillmore, on or about January 18, 1958,
solicited the active assistance of employees to combat the Union's organizational
effort. I find merit in the contention.
The available evidence with respect to this aspect of the complaint is to be
found, however, only in the testimony of Waldo Jones and Roger Strawn. That of
Jones, which I credit, establishes that Fillmore accosted him in the shop 2 or 3
days before the election, and requested him to "turn around and talk against the
.union" for the next 2 or 3 days. Jones, however, made no reply. As Fillmore was
about to leave he observed that, apparently, Jones had not changed his mind with
ORE-IDA POTATO PRODUCTS, INC. 1047
respect to the desirability of union representation. The testimony of Strawn with
respect to Fillmore's solicitation is equally brief. His credible description of a
conversation which he had with the personnel director about 1 week after the
election reads as follows:
Well, one of the first things that I remember, he said he was very surprised to
see that I was for the union . I believe, if I remember correctly, I told him that
he should believe it . . . . He asked me if I knew that the union had signed
a-I don't know just exactly what they call it-it would be a complaint, I
guess, against the company for unfair labor practice [Trial Examiner's note:
Objections to the election] I guess that's as good a way to put it as any. I
told him I had no knowledge of it. I had seen no union official since the elec-
tion. A little later in the conversation, he asked me if I liked the union, why
didn't I [go] up and work for Simplot's, and I told him that I had very little,
if any, use for the Teamsters at all, was the main reason . . Yes, he asked
me if I knew what the grievances [Trial Examiner' s note: Objections] were
that the union had complained about, and I said, no, I didn't, and he said they
were in his office and I was welcome to see them any time I wanted to come
up and look at them . . . . Yes. Mr. Fillmore asked me to junk the union and
come back and be a company man. I told him that I had my doubts about the
situation , and I'd have to think it over. [Emphasis supplied.]
Strawn had been a union observer at the election; Fillmore's knowledge of this fact
would indubitably explain his reference to the Union's objections in the course of the
conversation noted.
In this connection, the Respondents deny any proscribed effort to solicit the
active assistance of employees in their campaign against the unionization of their
plants; the comments attributed to Fillmore by Jones and Strawn, it is asserted,
should not be so construed.
It is argued, at the outset, that Fillmore's conduct does not deserve characteriza-
tion as an unfair labor practice, because it merely involved the solicitation of in-
dividual employees to reject unionization, without any threat of reprisal or promise
of benefit. This argument, however, must be rejected as deficient in merit. An
employer's personal solicitation of employees to abandon union sympathies may,
under some circumstances, reflect nothing more than his "views, argument or
opinion" with respect to the desirability of their unionization. When, however, such
an employer personally solicits the assistance of employees to articulate for other
employees his opinions with respect to the desirability of their representation by a
union, a verbal act is involved. The fact that no threats or promises may have ac-
companied such a solicitation should be dismissed, therefore, as irrelevant; Section
8(c) of the statute can not be considered applicable in such cases.
The Respondents also argue that the solicitation now under consideration ought
to be dismissed as casual and personal. The contention must be rejected. Jones
was requested, specifically, to "talk against the union" prior to the scheduled election.
Since the management's antipathy to the unionization of the respondent enterprises
had already been made manifest, Fillmore's active interest in a favorable response
by the carpenter may legitimately be inferred. And the fact that Jones was invited
to decry unionization publicly-necessarily in talks with other employees-would
seem to be more than sufficient to take Fillmore's request out of the personal realm.
The fact that Fillmore may not have pressed his solicitation aggressively cannot
vitiate the strength of a conclusion that its very presentation tended to interfere
with the exercise, by Jones and others, of statutory rights. In Strawn' s case, it is
true, any suggestion attributable to the Respondents that his decision to "junk" the
Union herein ought to be a public one must be considered implicit, rather than ex-
plicit, in Fillmore's remarks. The record establishes, however, that the Union's
election objections, previously noted, were already filed, and that the question of
representation raised in the Union's antecedent petition had not, therefore, been
resolved finally. A second election was possible-and one has, indeed, been directed.
Under the circumstances, it would be reasonable to expect that a repudiation of the
Union by its first election observer would come to the attention of the union
representatives, and to that of he employees involved. In effect, Strawn also was
being solicited both to alter his views with respect to unionization, and to make a
public avowal of his new opinion. Solicitation with such an end in view cannot
be considered merely an expression of views, argument, or opinion. Upon the
entire record, the General Counsel's contention that the conduct attributable to the
respondent enterprises in this connection involved an unfair labor practice would
seem to be well founded. 1. Taitel and Son, 119 NLRB 910; New England Upholster-
ing Co., Inc., 121 NLRB 234. 1 so find.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Conclusions
Each individual aspect of the course of conduct herein attributed to the Respond-
ents has been found to involve an unfair labor practice. There is a suggestion
nevertheless, in the presentation on behalf of the respondent enterprises, that,
separately considered, Fillmore's challenged activities had a minimal impact upon
the employees. This suggestion must be rejected.
While several of my conclusions in this report relate to specific conduct which
directly affected a limited number of employees only, the extent to which such con-
duct may have been publicized within the plants, and the strength of its impact
upon the other employees in a preelection situation, can be inferred. In the absence
of any effective demonstration by the Respondents herein, beyond mere assertion,
that Fillmore's entire course of conduct had a negligible effect, the logic of ex-
perience would seem to compel an inference to the contrary. There can be no
doubt that each aspect of his conduct dealt with in this report, and his course of
conduct considered in its total context, were reasonably calculated to inhibit free-
dom of choice by each respondent's employees in the Board-directed election.
By each of the acts attributable to Fillmore, therefore, and by his course of con-
duct considered as an entirety, the Respondents interfered with, restrained, and
coerced their employees in the exercise of rights guaranteed by the statute. I so
find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The course of conduct attributable to the Respondents as set forth in section III,
above, which occurred in connection with their operations as described in section I,
above, had a close, intimate, and substantial relationship to trade, traffic, and com-
merce among the several States, and, if continued, would tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondents engaged in certain unfair labor
practices, it will be recommended that they cease and desist therefrom, and take cer-
tain affirmative action designed to effectuate the policies of the statute.
Specifically, it has been found that an agent or representative of the Respondents
has interfered with, restrained, and coerced their employees by a course of conduct
reasonably calculated to interfere with their freedom of choice in a Board-conducted
election. It will be recommended, therefore, that the Respondents cease and desist
from such conduct, generally, and that they post notices declarative of their inten-
tion to do so.
It is found, also, that the course of conduct attributable to the Respondents as
a matter of law was reasonably calculated to interfere with, restrain, and coerce-
their employees, generally, in the exercise of rights statutorily guaranteed. I find
that course of conduct, therefore, indicative of a general purpose on the part of the
Respondents to inhibit the exercise by their employees of rights guaranteed in
Section 7 of the Act, as amended. It follows, and I find, that the unfair labor prac-
tices found to have been committed are closely related to other unfair labor practices,
statutorily proscribed, and that a danger of their commission in the future is to be
anticipated from the conduct of the Respondents in the past. In order, therefore, to
make effective the interdependent guarantees of Section 7 of the Act, as amended,
to prevent a recurrence of unfair labor practices, to minimize industrial strife which
would tend to burden and obstruct commerce, and thus to effectuate the policies of
the statute, it will be recommended that the Respondents cease and desist from
infringement, in any manner, upon the rights of employees guaranteed under Section
7 of the Act, as amended.
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact, and upon the entire record in the
case, I have reached the following conclusions of law:
1. The Respondents, Ore-Ida Potato Products, Inc., and Oregon Frozen Foods
Company, constitute a single employer engaged in commerce and business activities
which affect commerce, within the meaning of Section 2(6) and (7) of the Act, as
amended.
2. The Union, Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act, as amended, which admits employees of the Respondents to membership.
3. By its interference with, restraint and coercion of, employees in the exercise of
rights guaranteed under Section 7 of the Act, as amended, the Respondents have
AROOSTOOK FEDERATION OF FARMERS , INC. 1049
engaged in and are engaging in unfair labor practices within the meaning of Section
8 (a)( I) of the Act, as amended.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act, as amended.
[Recommendations omitted from publication.]
Aroostook Federation of Farmers , Inc., Petitioner and Truck-
drivers, Warehousemen and Helpers Union , Local 340, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America. Case No. 1-ISM-313. May 7, 1959
DECISION AND DIRECTION
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted on December 16, 1958, under
the direction and supervision of the Regional Director for the First
Region, at the Employer's Caribou and Fort Kent, Maine, plants,
among the employees in the agreed appropriate unit. Following the
election, a tally of ballots was furnished the parties, which showed
that of the approximately 35 eligible voters, 11 voted for, and 7
voted against, the Union, and 15 ballots were challenged.
The challenged ballots being determinative of the results of the
election,' the Regional Director conducted an investigation, and on
January 28, 1959, issued and duly served upon the parties his report
on challenged ballots. In this report he recommended that 3 chal-
lenges be sustained, 12 to be overruled, and that he be directed to open
and count these 12 ballots and to issue a revised tally of ballots to
the parties. The Union filed timely exceptions to the Regional Di-
rector's report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Fanning].
The Board has considered the Regional Director's report and the
Petitioner's exceptions, and on the entire record in this case finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. In agreement with the stipulation of the parties, the following
employees of the Employer constitute a unit appropriate for the pur-
1 No objections were filed to conduct affecting the results of the election.
123 NLRB No. 131.