Peter Paul, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1966

156 N.L.R.B. 1321 (N.L.R.B. 1966)

PETER PAUL, INC. 1321
day-to-day subassembly operations of the Hibbing plant. Although
interviewing and hiring is done by the Duluth-based personnel depart-
ment, the Employer utilizes the State employment services in Hibbing
to fill manpower needs for the Hibbing plant. There is no bargaining
history for the employees of either of the two plants.
Upon the foregoing and the entire record, we are unable to agree
with the Regional Director's conclusion that the presumption favoring
the appropriateness of the single-plant unit confined to Duluth has
been effectively rebutted. As the Board indicated in The Black and
Decker Illanu f acturing Company, 147 NLRB S25, ,,t substantial degree
of product integration between two plants does not in itself preclude
a single-plant unit when there are other factors supporting such a
finding. Here, there is substantial geographic separation of the two
plants, the Hibbing subassembly employees are recruited generally
from the Hibbing area and are under separate supervision, there is no
employee interchange, and no labor organization seeks to represent a
two-plant unit.3 These factors satisfy us that the plant employees at
Duluth enjoy a separate community of interest apart from the em-
ployees at Hibbing. We find, therefore, that a unit confined in scope
to the Duluth plant is appropriate.4
Accordingly, the case is hereby remanded to the Regional Director
for Region 18 for the purpose of holding an election pursuant to his
Decision and Direction of Election, as modified herein, except that
the period for determining eligibility shall be the payroll period im-
mediately preceding the date above.
3It is clear that the Intervenor , Communications Workers of America, AFL-CIO, did
not have sufficient showing of interest to be treated as a cross -petitioner.
d The Black and Decker Manufacturing Company, supra ; Dixie Belle Mills, Inc, etc,
139 NLRB 629.
Peter Paul, Inc. and Retail , Wholesale , and Department Store
Union , AFL-CIO. Cases Nos. 16-CA-0182 and 16-CA-2044. Feb-
ruary 8, 1966
DECISION AND ORDER
On October 8, 1965, Trial Examiner George L. Powell issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in unfair labor practices as alleged in the complaints
and recommending that the complaints be dismissed in its entirety,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial Examiner's Decision
and a supporting brief and the Respondent filed a brief in support of
the Decision.
156 NLRB No. 116.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
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 and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Case No. 16-CA-2182
This is an unfair labor practice case, based on a complaint issued on January 28,
1965, and prosecuted against Peter Paul, Inc., herein called Respondent . The com-
plaint issued on behalf of the National Labor Relations Board by the General Coun-
sel through the Regional Director for Region 16 (Fort Worth, Texas ), is founded on
a charge filed on November 18, amended November 30 and December 17, 1964.1
These charges were filed by Retail, Wholesale, and Department Store Union, AFL-
CIO, herein called the Union . The complaint in substance alleges that Respondent
has violated Section 8 (a) (1) and ( 3) and that such conduct affects commerce within
the meaning of Section 2(6) and (7), of the National Labor Relations Act, as
amended, herein called the Act. Respondent answered putting in issue the commis-
sion of the unfair labor practices.
The case was heard before Trial Examiner George L. Powell at Dallas, Texas, on
March 29, 30 , and 31, 1965. All parties were presented at and participated in the
hearing, and were granted full opportunity to offer evidence , examine and cross-
examine witnesses , present oral argument , and submit briefs. Briefs were filed by
the Respondent and the General Counsel on May 11 and 12, 1965, respectively.
Case No. 16-CA-2224
This is an unfair labor practice case based on a complaint issued on July 30, 1965,
which in turn was based on a charge filed on January 6, 1965, substantially similar
to the November 30, 1964 , amended charge in Case No . 16-CA-2182. This com-
plaint alleged , in substance , that Respondent violated Section 8(a) (5) of the Act by
refusing to bargain with the Union on September 22, 1964 ,2 when it on that date
requested bargaining , having at the time an alleged card -showing majority of the
employees . Upon a motion duly made by the General Counsel to me (objections
thereto filed by Respondent ) to reopen Case No. 16-CA-2182 and consolidate Case
No. 16-CA-2224, the original case was ordered reopened and hearing was held on
September 14 and 15, 1965,3 in Dallas, Texas.
1 November 118 charge alleged the discriminatory discharge of Fannie May Ray and
general interference, restraint, and coercion of employees. November 30 amendment added
an allegation of a refusal to bargain on September 28. December 17 amendment deleted
the refusal-to-bargain charge of the November 30 amendment. All dates are 1964 unless
otherwise noted.
2 The November 30, 1964, amendment to the charge in Case No. 16-CA-2182 alleged
the refusal to bargain took place on September 28, 1964.
31 initially denied the motion to reopen and consolidate on ground that my decision
was "ripe for issuance and further delay would impose an unreasonable burden on the
parties." I pointed out, that the discharge In Case No. 16-CA-2182 took place in Novem-
ber 1964, the case was heard on March 29, 30, and 31, 1965, the transcript of the hearing
was delivered on April 14, 1965, and briefs of the parties were filed on May 11 and 12,
1965. However, on a motion for reconsideration made by the General Counsel (objected
to by Respondent) I was persuaded that an orderly and full development of the issues
could be presented by consolidating the cases.
PETER PAUL, INC. 1323
For the reasons set out below I find the General Counsel has not sustained his
burden of proof and will recommend both complaints in the consolidated case be
dismissed.
Upon the entire record in this case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent , a Delaware corporation , is engaged at Dallas, Texas, in manufacturing
candy products . During the 12-month period immediately preceding the issuance of
complaint Respondent manufactured , sold, and distributed products valued in excess
of $500,000 , of which products valued in excess of $50,000 were shipped from said
plant directly to States of the United States other than the State of Texas. I find
that Respondent is engaged in commerce within the meaning of the Act, and that it
will effectuate the purposes of the Act and assert jurisdiction over Respondent in
this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Retail , Wholesale, and Department Store Union , AFL-CIO, is an organization
representing employees such as those employed by Respondent and it bargains in
their behalf with respect to wages, hours, and working conditions . I find that it is a
labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Case No. 16-CA-2182
This case involved the question of: (1) whether Respondent unlawfully discharged
employee Fannie May Ray; and (2) whether Respondent interfered with, restrained,
and coerced its employees by certain specific acts by named supervisors of Respondent.
1. The discharge of Fannie May Ray
a. Sequence of events
During the 2 to 3 months of the union organizing campaign , friction among the
employees set in. "Tempers were on edge." The "happy family" atmosphere of the
plant had totally changed.4 There were numerous rumors in the plant of what would
happen of the Union won the election which was coming up. And Respondent issued
five letters devoted to "rumors" on urging a "No " vote.5 This then was the arena
and the atmosphere on the morning of November 10, 1964 , when there was an
unusual glue spillage.
Fannie May Ray entered the plant at her usual early hour of about 6 : 30 a.m on
November 10, and, as had been her custom for some 17 years, turned on the switch
that activates the glue pump. After she finished dressing for work she came out
and went to her machine to get it ready to work. On the machine next to her
machine, someone , it has never been determined who, had opened the valve which
permits the glue to flow from the overhead line into the glue pot . With this valve
open and with the glue pump working, glue poured onto the' floor. A considerable
quantity of glue was involved, estimated variously at between 2 and 3 gallons and
covering an area in diameter of approximately 4 feet. In addition to the loss of
glue, the glue poured over wrapping paper destroying many pounds of the two types
of paper used . However, by starting time of 7 a.m. or shortly thereafter , the glue
had been wiped up and the machines were ready to commence operations. When
Rosenbaum , the plant manager, arrived at work that morning, he was advised of
this unusual experience . Never had anything like this happened before. Glue spil-
lage that was normal occurred when an operator would momentarily forget to turn
off the valve after periodic filling of the glue box,6 and only a slight amount would
spill.
In an effort to find out more about this occurrence , unusual because it happened
before work even started , Rosenbaum , at the close of the day , had his assistant plant
manager, Phillips , get the forelandy (McMannus) to bring Fannie May Ray to his
4 Polly Lloyd called it "turmoil."
5 General Counsel's Exhibit No 9, "Exhibits A" thru "E."
6 Ray testified that the machine operators filled their glue boxes " three or four times
a day."
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office. There he told her, in their presence , that "I'm quite disturbed about the glue
spillage" and wanted to see her before she left for the day as he was investigating
what had happened . Ray became rather irritating , insulting , and insolent . First, she
exaggerated her deafness. This required Rosenbaum to move his chair closer to
Ray and to repeat his questions several times in ever louder tone .? Then she [Ray]
"answered" that she wasn't responsible for the glue spillage. Rosenbaum told her
that he was not accusing her of any glue spillage but that he was only investigating.
He told her he wanted her in his office the next morning before she satrted to work.
She wanted to know when he was going to be there because she "went to work early"
and had to be on the line at 7 o'clock. He said he would be in in plenty of time.
Ray wanted to continue the discussion but Rosenbaum said they would take it up
the next morning.
The following morning, the same four people were again in Rosenbaum 's office
by about 6:45 a.m. He said he had been given the matter further thought and he
instructed Ray not to turn on the glue pump anymore. She asked him who would
do this if she didn't. Whereupon he replied that he would take the responsibility
for that. Then she told him, "It's about time that you assumed your responsibility."
And at some period in these proceedings she produced a $5 bill which she
.. pitched ... on Mr. Rosenbaum's desk and said, `I'm gonna pay for the glue.' "
He told her Respondent did not expect employees to pay for any waste and she was
not even being accused of spilling the glue. He then attempted to return the $5
bill. Ray drew her hands back and refused to take it, whereupon he laid it in her
lap. She "pitched it back" on the desk. He told her to take her money, "and to
go back down and go to work." She didn't. He laid it in her lap. She tossed it
back on the desk. The $5 bill passed back and forth several more times. Once,
Rosenbaum had to retrieve it from the floor. Finally after these many attempts to
return tht money, Ray put the bill on an ashtray and asked for a receipt for paying
for the glue. Phillips, who had been watching all this activity, picked it up and
tried "as a personal friend" to get her to take it back. She also refused him.
Rosenbaum told Ray, at one point, that he was going to have to put "a written
report, a reprimand in her personnel file." Ray replied, "Well, if he did, he'd better
be sure he'd tell the truth on it." Finally Phillips stepped into the controversy
saying, "All right, now, lets get up and go on back down to work." Ray then went
down to work after shaking hands with Rosenbaum and telling him, "Thank you for
making such a big fuss out of a little bit of nonsense."
Phillips put the $5 bill in an envelope and suggested to Rosenbaum that he would
try to give it to Ray downstairs at her work station. Rosenbaum agreed to this but
when attempted , Phillips again could not persuade Ray to take it. Phillips then
returned the envelope to Rosenbaum.
On the morning of November 13, 2 days later, Rosenbaum called Ray to his
office and told her he would give her one more chance to take back the $5 and go
back to work and if she did not take it he would have to discharge her. She again
refused to take the $5 whereupon Rosenbaum said , "All right. Now , this is it. I
have had it . I am firing you for insubordination . You are disrespectful of my
authority." He told her she was being fired "for refusing to take the five dollars
and go back down to work." 8
The General Counsel accurately summarized the issue in his opening statement
as follows:
Her [Ray's] discharge occurred around the efforts of the company to get her
to take this five dollar bill back so that the company would no longer have it.
And her discharge ended on the note as I understand it that she would either
have to take the five dollars or be discharged. She decided that she wanted the
company to have the money so she left the money with the company and the
Company discharged her. -
7 Phillips credibly testified that he and McMannus and Ray had carried on a conversa-
tion immediately preceding the one with Rosenbaum in which "normal conversational
tone" of voice was used. But to Rosenbaum's questions she kept interrupting with "I
can't hear you," yet Rosenbaum was speaking in a normal conversational tone of voice.
"The above is based on the credited testimony of Phillips . I do not credit Ray. She
was evasive . extremely biased, antagonistic , and full of exaggeration.
PETER PAUL, INC. 1325
b. Conclusions as to Fannie May Ray
"It is undisputed that the discharge of an employee for wrongful conduct is an
inherent power of manogement and one that is protected by law." The United States
Court of Appeals for the Fifth Circuit said this in N.L.R.B. v. Soft Water Laundry,
Inc., 346 F. 2d 930, [Bd. Case No. 12-CA-2417; 143 NLRB 12831 while citing
Caterpillar Tractor Company, a Corporation v. N L.R.B., 230 F. 2d 357, 359 (C.A.
7). The employer may, therefore, discharge at will so long as the discharge is not
based on opposition to union or concerted activities. (N.L.R B. v. T. A. McGahey,
et al., d/b/a Columbus Marble Works, 233 F. 2d 406 (C.A. 5); Farmer's Co-
operative Company v. N.L.R.B., 208 F. 2d 296 (C.A. 8). Paraphrasing its holding
in N.L.R.B. v. Birmingham Publishing Company, 262 F. 2d 2, 9 (C.A. 5), the court
in Soft Water Laundry, Inc., supra, 934, said:
If a man has given his employer just cause for his discharge, the Board cannot
save him from the consequences by showing that he was pro-union and his
employer anti-union.... If an employee is both inefficient [insubordinate] and
engaged in union activities, that is a coincidence that does not destroy the just
cause for his discharge.
There is no question in this case but that Ray was insubordinate. She was not
submitting to authority and she was disobedient. As the General Counsel stated,
"She decided." She did this in direct defiance of superior authority. She refused
to follow a reasonable request to take back the $5.
Perhaps the theory of the General Counsel is that this is a subtle case and that
the Respondent deliberately baited her into taking a stand knowing that her pride
would force her to maintain her position no matter how dangerous it became. This
theory has no factual basis. On the contrary, it appears that Ray was baiting
Respondent to fire her if it dared! She started off immediately in the meeting by
feigning greater deafness. This caused Rosenbaum to keep repeating his question
and to hitch his chair closer and closer. She had no trouble hearing conversation
before Rosenbaum joined the group. And she seemingly heard all right at the
trial. Furthermore, the actions of Respondent showed that it did not want to take
any action against her. Rosenbaum only wanted to investigate an unusual occurrence,
and in doing so decided not to have Ray turn on the glue pump any more. Then
Ray decided to pay $5 for the glue spillage even though she was not charged with
its responsibility nor had any money value ever been made of the damage. The
problem from then on was getting Ray to take back the money and go back to work.
Surely General Counsel is not urging that Respondent knew Ray would refuse the
$5 bill five or six times, and knew that she would continue to refuse it even on the
final interview and that it could then use this as a pretext to discharge her. Respond-
ent's many requests that she take back the $5 and go back to work does not tend to
show it is seizing on a pretext to discharge her.9 I find the discharge of Fannie May
Ray to be a discharge for insubordination, and will recommend this allegation in
the complaint be dismissed. Union membership or union activities do not insulate
employees against reasonable rules and regulations of their employer nor does either
keep them from the greater obligation of being members of the same human family
bearing a duty and a responsibility to minimize friction with others.
2. The alleged 8(a)(1)
Theodore R. Zerbe was the maintenance supervisor having six employees under
his direction. Two of these did "cleaning," three did "mechanical" work, and one
did "oiling." As his duty was to keep the equipment operating, he worked throughout
the plant. According to his credited testimony, after the union organization campaign
had begun, " screaming and hollering" (engaged in by the women working the pro-
duction lines ) increased throughout the plant. As for the conduct of Fannie May
Ray, he said,
Well, you would go down the line there and if she wanted a mechanic or any-
body-regardless of whether she needed him or not, she would scream at him.
She would holler at him. You could hear it all over the plant.
0 Cf. N L.R.B . v. M & B Headwear Co., Inc., 349 F. 2d 170 (C.A. 4).
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is a very ridiculous thing for a person to be hollering at somebody in a plant
when there is people working.
And then she would take-like the rest of the girls-if they didn't want to put
the candy in the box, they would take the candy up like this [indicating] and
throw it to the side. Good candy that should of went out on the market-
because it was a way that they had of acting.
I never saw people act like that. I been working with these people for years-
since 1948-and I never saw her [Ray] act like this. I never saw any of them act
like that, like they did.
Zerbe, 63 years old, impressed me as a gentle and friendly man. Since a rather
severe heart attack in 1957 he had been suffering from other illnesses and was treated
weekly by a physician. He knew all of the employees, did personal favors for them
such as making free repairs to their broken appliances, discussed personal problems of
employees with them, and took pride in the fact that employees had come to him
with their problems.
There is no question but that the employees had complaints and grievances against
Respondent which were unresolved. According to Ray's affidavit, (Respondent's
Exhibit 5) "before we had our first union meeting" Zerbe had asked her to request a
"Mr. E." to come down from Respondent's home office in Naugatuck, Connecticut,
"to get things straightened out." He asked her to do this "about September 1, 1964."
Employee Polly Lloyd admitted that before the Union began its organizing cam-
paign she was the one who carried employee complaints and grievances to the Com-
pany. As she explained it, she complained "all the time" and was the only one
"goofy" enough to go to Rosenbaum's office and complain. She said, "I just about
wore out the carpet." She said she did the complaining for herself and for everybody
else. "There wasn't anybody else that would do it."
As noted above, there were many rumors in the plant during the union campaign.
Lloyd referred to the plant as being in a "turmoil." One rumor was that if the plant
went union the Christmas bonus would be taken away from the employees as punish-
ment. She reported this rumor to Rosenbaum and testified that he was "mad" at this
"outrageous rumor," and that it was a "false" rumor. She also admitted that Rosen-
baum discussed with her the rumors that people might get fired and that he told her
these rumors were false and that he wanted her to tell other employees the rumors
were false and to put a stop to them.
Zerbe admitted telling Assistant Plant Manager Phillips that he had talked to
employees Lloyd and Ray about asking Mr. E. to visit the Dallas plant.
3. The Zerbe-Ray telephone conversation
Finally, on October 14, 1964, Zerbe talked to Ray at work asking her to telephone
him that evening at home. Ray did this. She did it from the union headquarters
with the Union's International Representative, Stewart, and an organizer, Elnora
Purcell, monitoring the conversation.
Zerbe knew better than to discuss the Union with any employee. All supervisors
had been specifically directed by management, when the Union began organizing, not
to "say anything about the Union or against the Union to any employee." 10 Also
during the Union's campaign, Respondent wrote some five letters (see attached
Exhibits A, B, C, D, and E) to its employees correcting "false" rumors and telling its
story to the employees without in any way interfering with, coercing, or restraining
the employees."
The General Counsel places great store in this telephone conversation. It was a
personal friendly conversation with Ray leading Zerbe into the areas he had been
instructed to stay out of. It is clear from the beginning of the telephone conversation
that Zerbe was again suggesting that Ray request "Mr. E." or someone else to come
down to Dallas from Connecticut "to get things straightened out." He had asked this
before the Union began organizing, as noted above, and he was asking it again.
10 Respondent had meetings of its supervisors at which times they were instructed to
refrain from interfering with the rights of employees. They were given copies of a list
of what they should do and should not do. This list was that made available for dis-
tribution to employers by the National Association of Manufacturers in December 1959.
"Thus, I concur in the finding of the Regional Director when be on January 26, 1965,
overruled "objection III" to the conduct of the election. (General Counsel Exhibit
No. 9.)
PETER PAUL, INC. 1327
Ray asked him if those who signed such a request wouldn't get fired. He replied,
"No, no sir. I wouldn't want anyone to be a goat." He repeated this again in the
middle of his repoited conversation 12 and concluded his conveisation on the same
subject with:
Well, you see about it and I know you can get things straightened out this way.
No one will get fired. No one will know who sent the message.
Whether or not interrogation is coercive depends upon the facts of each case and on
the facts here there is no basis for finding coercion.
Interference, restraint, and coercion are acts and deeds which employers are not
supposed to direct against employees without violating the Act. But it must always be
noted that overt acts are necessary. These overt acts must be directed against the
employees to cause or be capable of causing the employees to change the course of
their activity protected under Section 7 of the Act.
This telephone call, which I find was deliberately made under the auspices of the
Union, was made solely for the purpose of getting language out of a friendly, kindly,
sick, minor supervisor (not over the employee involved in the conversation) which
out of context of the telephone call itself is similar to language found in other cases
by the Board to constitute 8(a)(1) violation. The Union here deliverately baited
Zerbe through his friend Ray. This is not the type of evidence calculated to interfere
with, coerce, or restrain employees. It was secured to be used in this case.13 Not
only should it be rejected on the theory that the Union is abusing the Board's processes
but also because it has no weight. I do not use it on both grounds.
However, a brief discussion of the conversation, as I see it, will be set out because
even if considered to have evidentiary weight it does not prove interference, coercion
and restraint under the Act.
Zerbe's well-meaning suggestion to Ray to write to Naugatuck to clear up the
situation, I find, is merely a statement of preference made outside of a context of
threats should the Union be selected or a promise of benefit if she followed his
advice. This is not violative of Section 8(a)(1) of the Act.14 Savoy Leather Mfg.
Co., 139 NLRB 425.
The Second Circuit Court of Appeals in enforcing the Board's order in Irving Air
Chute Co., Inc., 350 F. 2d 176, 179, said.
" . . declaration made by supervisory employees' will charge the employer
[under the Act] [even] though they would not charge him under the doctrine,
of respondent superior." NLRB v. Moench Tanning Co , 121 F. 2d 951, 953
(2d Cir. 1941). This broader rule places responsibility on an employer for
acts of a supervisor when "employees would have just cause to believe that he
was acting for and on behalf of the company." NLRB v. Texas Ind. Oil Co.,
232 F. 2d 447, 450 (9 Cir. 1956).
The court then went on to find under the facts of the Irving case that the "Company
. [was] ... responsible for Mathewson's statement on May 29. Although Payne's
earlier threats, standing alone, might well be attributed to the Company, Mathew-
son's encounter with Kinner in effect placed the stamp of official approval on
Payne's action."
The facts the Court referred to were that Company Supervisor Payne, seeing
employee Kinner carrying union literature, asked Kinner if he were trying to get
himself fired for carrying the literature. Payne also told Kinner that the Company
might move its plant to Kentucky if the Union succeeded in organizing the plant.
la Steward and Purcell took notes. I have been unable to find any reference in the
record as to when these notes were transcribed. Zerbe denied making some of the state-
ments attributed to him. The General Counsel introduced into the record the reported
conversation as Exhibit No. 3, and Respondent did the same in its Exhibit No. 6 but
with lines drawn under that part of the conversation denied by Zerbe Because of the
controversy surrounding this conversation I am reproducing it as "Exhibit F" with
lines drawn under that part denied by Zerbe. Further, because of my findings relating
to this telephone conversation it is unnecessary to resolve the credibility issue involved. I
will note, however, that in my opinion this conversation is not fully reported as it is so
jerky as to be almost unintelligible.
m Purcell admitted this.
14 The other part of the conversation between Ray and Zerbe was essentially led by
Ray with Zerbe replying to questions as one friend to another giving his opinion. That
he might have puffed up his own value and opinion does not change the situation. Hence,
this part of the conversation cannot be considered as interference or as threats or coercion
as Ray in effect asked for the statements. Whether or not she was coached by the Union's
representatives is hence immaterial.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the Mathewson statement, the court recited the fact that Mathewson later on
told Kinner that he had orders to fire all the union agitators among the employees
and that there would be reprisals against the members of the paint department, where
Kinner worked, because of their union activity.
The facts in Irving are so different both as to what was said, by whom it was
said, to whom it was said, and as to why it was said as to warrant no comparative
discussion. Ray has no "just cause" to believe that Zerbe was acting for or on
behalf of the Company. She could not believe he was trying to coerce her to
cause her to stop her union activities.
Finally, even if Zerbe's telephone conversation with Ray might constitute a viola-
tion of Section 8(a)(1), no remedy would be provided for the reason that, in con-
text: (1) it is an isolated instance; (2) it was made by a minor supervisor; (3) he
has no supervisory control over Ray; (4) it was made in reply to questions; and
(5) it was made by an acknowledged old friend. See Middletown Manufacturing
Company, Inc., 141 NLRB 234; Senco Manufacturing Coip, 141 NLRB 1306;
Henry 1. Siegel Co., Inc., 143 NLRB 386; Tennessee Packers, Inc., Frosty Morn
Division, 143 NLRB 494; Radiator Specialty Company, Inc, 143 NLRB 350; and
Texas Boot Manufacturing Company, Inc., 143 NLRB 264. What Zerbe did cannot
be characterized as conduct of an employer calculated to impress upon employees
inherent dangers of job loss or prospect of physical violence should the union win
an election. Cf. Ideal Baking Company of Tennessee, Inc., 143 NLRB 546.
Respondent had carefully advised its supervisors not to discuss the Union with
employees and had taken steps to clear up rumors which might frighten or coerce
employees, as witness the testimony of Lloyd on the false rumor of the loss of
Christmas bonus, supra, and the Respondent's letters to the employees, supra. Also,
the General Counsel did not establish that Respondent ever knew of the personal
telephone conversation between Zerbe and Ray or the subsequent telephone con-
versation between Zerbe and Lloyd.15 Hence any theory that Respondent was
adopting Zerbe's comments cannot be justified.
16I conclude and find that Zerbe's reference to Ray and Lloyd being watched has not
been proven as being related to any union activities of theirs. Rather, it ties in to his
report to Phillips that he had suggested to Ray and Lloyd that they write Naugatauk, and
to Ray's loud talk and actions while at work and to Lloyd's grievance carrying. Actually
Ray's union activity was virtually nil as compared to others. Apparently she signed two
cards for the Union. One was signed on September 11, 1964 and the other somewhere
between September 24 and a month before her discharge on November 13, 1964. Her
testimony as to how many employees she asked to sign union cards is at variance with
an affidavit she had made earlier on December 10 and is not credited. She testified that
she asked about eight people to sign but in her affidavit said "about five employees "
(Respondent's Exhibit No. 5 This is also evidence of her tendency to exaggerate.) And
of the eight she said, "they had [previously ] signed cards and sent them in with the
exception of one person." "Everybody else had their cards and sent them in before I
signed mine " So, she was too late to be active in card signing . Talking to present
members is not union activity . She also said in her affidavit, "I don ' t know if anyone
in supervision knew about my union activities or not as they never did talk to me about
the Union ." She went on to say in her affidavit , "As far as I know, there has been no
one in the management of the Company that ever made any promises or threats regard-
ing the union to me other than the conversation with Ted Derbe [ Zerbe], maintenance
superintendent." Clearly Respondent was not violating the Act.
She thought that there were eight union meetings and she attended them all. In her
affidavit she said she was elected to the organizing committee at the third meeting on
September 24 and "a few days later" her name was included in a letter the union repre-
sentative sent Respondent . Again there was conflict between her testimony and the
affidavit as she testified that the September 24th meeting was the second meeting and not
the third . More important however is the fact that her name was not on the letter sent
Respondent on September 30 ("a few days later "). Instead it was included in the letter
sent Respondent on October 9, 1964. As to these letters , it seems they listed all of the
ensployees in favor of the Union although they were named as "our organizing committee."
The September 30 letter listed 14 employees and the October 9 letter listed 12 employees.
Union International Representative Stewart testified that there were more than these
26 employees on the organizing committee but if so they were never identified How-
ever, in the subsequent election on November 24, 1964, 33 employees voted for the Union
This tends to show that the "organizing committee " was about all of the union
sympathizers.
Finally, showing that Ray's membership on the "organizing committee " did not mean
that she was active in the Union ( and hence that she was singled out for her union
PETER PAUL, INC. 1329
4. The Zerbe-Lloyd telephone conversation
Following her discharge on November 13, 1964, Ray went to the home of
Purcell in the evening.16 Union International Representative Stewart and Polly
Lloyd were also there. Somewhat like the telephone call made by Ray to Zerbe
a month earlier, discussed above, Lloyd telephoned Zerbe at his home and engaged
him in conversation with the call again being monitored by Stewart and Purcell.
This time, however, there was not even the excuse that Zerbe asked to be called,
as there was in the situation involving the Ray-Zerbe conversation. Again, there is
conflict between the transcribed version of the talk and Zerbe's testimony. (I am
reproducing the transcription as an Exhibit G hereto with that part underlined which
is denied by Zerbe.) 17
For the reasons given in not using the Zerbe-Ray telephone conversation, above,
I do not use this telephone conversation. Again, however, a short discussion will
be made.
The dominant note in Zerbe's conversation with Lloyd is that nobody would "be
fired if they do their job." Lloyd kept referring to Fannie's [Ray] discharge, and,
similar to his previous warning to Ray about her loud talk, Zerbe kept replying by
warning his friend Lloyd to simply do her work without this conflict.
In the context of (1) the longstanding friendship between Zerbe and Ray and
Lloyd, (2) Zerbe's minor supervisory status, (3) his natural concern about com-
plaints and grievances of employees and the impact they had on the machine 18 he
had to keep in repair during the "turmoil" in the shop, (4) Zerbe being deliberately
used by Lloyd in an attempt to get him to say something which out of context would
amount to a violation, I find and conclude that Respondent did not violate Section
8(a) (1) in the Zerbe-Lloyd telephone conversation. It could not have "interfered"
with or "coerced" Lloyd. Even if these statements, which were his own and were
given pursuant to leads by Lloyd, were found to violate 8 (a) (1) it would be isolated
as to Lloyd. This was a personal telephone conversation between two longtime
friends initiated by Lloyd and lead by her to deliberately attempt to get her friend
Zerbe to say something which would "interfere" with her activities (which were nil)
or "coerce" her. Obviously the alleged violation of the Act is not established by
such "evidence."
Accordingly, I shall recommend the complaint be dismissed as to this allegation
of 8(a)(1).
5. Miscellaneous 8(a)(1) allegations
The complaint alleged that Supervisor Ethel McMannus interrogated employees
on November 24, 1964. Lilly Ruth Lane testifying for the General Counsel said:
Ethel McMannus came to me, on this day and said, "we don't need that union
in here, it can cause you to lose your job." She said, "I am not trying to get
you fired, I am trying to talk some sense into you," and she said, "what about
this do you not like?" She said, "do you want on another machine," I said,
"no, it is not that, that I did not want to talk about it " And, she said, "you
ought to talk to someone about it and get them to explain the union to you,"
she said, "do you not want to talk about it because you don't understand the
union?" I said, "no, I belonged to a union before I came out here," and she
said, "why did you come out here where there wasn't a union? Why didn't you
go somewhere else where there was a union?" And, I said, "well, I worked at
defense plants then and the war was over and there was not a union job then."
activity and therefore threatened or discriminated against in tenure of employment), are
two important facts: (1) The list of 14 names on the "organizing committee" in the
letter of September 30 specifically identified the "chairman" and the "secretary" yet there
is no evidence of threats or coercion as to them ; (2) Dorene Beavers' name was listed
in the September 30 letter and both Ray's name and that of Bobbie Lanham was listed in
the October 9 letter. Thus Beavers, Ray, and Lanham were all on the "organizing com-
mittee" yet they were the total complement of three employees who worked the same
machine. Thus, their sphere of influence necessarily was limited, and doubt is cast on
whether they ever were active for the Union regardless of the title given them by the
Union.
16 See Purcell's testimony.
17 Credibility will not be determined as it becomes unnecessary to do so in view of my
deceision regarding this telephone conversation
1s His testimony referred to the way "Bessie threw on the belt machine." Zerbe was
also concerned that the wrapping machines "won't stop without a clutch." He was on
the safety committee and "don't like it."
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McMannus explained this conversation by testifying,
"well, this particular person doesn't quite know what she is to do every morning
and has to be told."
I thought maybe she might not understand just what was going on .. .
in regard to the union. I asked her if there was anything she did not under-
stand and she told me she understood perfectly. I said, "well, if you don't,
why don't you talk to some one who knows what it is all about." And she says,
"I know." She said, "I've worked for unions before " And I said, "well, how
come you quit working there." And she said, "well, the war was over.' So, all
I said then was, "I hope you know what you are doing."
McMannus denied saying that if the Union came in it would cause her to lose her
job or words to that effect. I credit the testimony of McMannus (and not that of
Lane) and find that she did not make the statements testified to by Lane, as alleged
in the complaint. Accordingly I will recommend this allegation in the complaint
be dismissed.
The complaint alleged that McMannus threatened employees with discharge and
reprisals on November 2, 3, and 10, 1964. In support of these allegations General
Counsel's witness Taylor testified that on November 2, she overheard McMannus
speaking to Wofford, as he was changing the cellophane on her machine, in which
McMannus said, "Tootie, if the plant goes union, we are going to hue all new
employees, won't that be nice?" Taylor said that Tootie did not reply but that she
did saying, "It sure will." As to the next allegation on November 3, Taylor testified
that she again overheard McMannus speaking to Wofford as he was changing the
cellophane on her machine saying, "Tootle, if the plant goes union, we are just
going to close it down." She testified there was no reply to this. Although the
complaint alleges that there were threats of discharge and reprisals by McMannus on
the date of November 20, the testimony of Taylor was that on October 20, 1964,
she again overheard McMannus in a conversation. This time, she testified, McMan-
nus told the girls on the miniature line that, "if the plant went union, they were going
to cut the wages to $1.41 an hour." At the time the wages were $1.95 and piecework
was averaging $2 25 No witnesses from the miniature line were called. McMannus
specifically denied all of these alleged conversations
Taylor, on cross-examination, admitted that she knew that Respondent had a
union in its plant in Oakland, California, and that when it built a new plant in
Salinas, California, it moved the employees from Oakland to the new plant This
is not evidence of an antiunion employer.
I credit McMannus over Taylor and find no evidence to sustain the allegation of
the complaint as it relates to November 2, 3, and 20, 1964.19
The complaint alleged that Zerbe interrogated employees and threatened them
with discharge or other reprisals on October 14 and November 13, 1964. The Octo-
ber 14 date apparently applied to the telephone conversation with Ray which has
already been discussed. As to November 13, the General Counsel called employee
Pace. Pace, a shipping clerk, testified that on November 13, he and four other
identified employees were discussing the dismissal of Fannie May Ray when Zerbe
walked up to them. They asked Zerbe what he thought the "deal" was on Fannie
May. According to Pace, Zerbe then:
. made some remark that she [apparently Ray] was the goat or something
like that and that he [Zerbe] had tried to tell them that he had worked with her
for seventeen years, I believe it was, and that he hated to see her go and he
tried to warn them. He tried to talk the company's attorneys or the company
out of letting her go.
But on cross-examination, Pace admitted that Zerbe told him Ray was "insub-
ordinate, loud, and argumentative."
Zerbe credibly testified that he never attended any meetings at which time there
was a discussion of Fannie May or Polly or any other employee being discharged,
or set up for discharge, and he had no knowledge of any of Respondent's plans or
contemplations regarding employees.
Pace impressed me as an extremely biased witness in favor of the Union. The
General Counsel did not call any of the other witnesses to the Zerbe conversation to
testify. Further, Pace's testimony on direct, as set out above, is so vague as to be
19 The allegation in the complaint of a violation of Section 8(a) (1) because of a threat
of discharge allegedly made on November 24, by DcMannus, apparently relates to the
testimony of Lane and is disposed of above.
PETER PAUL, INC. 1331
of no value. Later on the General Counsel had to lead him into his testimony to
such an extent as to cause his testimony to be worthless. I discredit the testimony
of Pace. Accordingly, I find the General Counsel has not sustained his burden in
proving the allegations of the complaint as they relate to the Zerbe allegations on
the dates of October 14 and November 13, 1964.20
The complaint alleged that Respondent, through kitchen supervisor Andy Kimber-
lin, threatened its employees with discharge or reprisals if they become or remained
members of the Union or gave any assistance or support to it on three dates, Sep-
tember 9, October 20, and November 13, 1964. Employee Pace was the General
Counsel's witness for the September 9 date although Pace could not recall what day
in September it took place. His testimony was that he and Kimberlin were discussing
the Union in the restroom during a smoke break. His testimony was that Kimberlin
told him that he did not think that the employees needed a union and said "if the
Union did come in that things would be a lot harder." He testified that Kimberlin
was referring to the smoke breaks and that they would be cut out all together. He
replied to a leading question of the General Counsel that Kimberlin told him the
Company was expected to make a profit and that it would not appreciate anybody
trying to tell them how to spend its money and in that respect that the Christmas
bonus that had been paid for the last 15 years was paid because the Board of
Directors voted it. The following portion of the transcript is set out as an
example of the testimony of Pace:
[Cross-examination]
Q. Were you ever told during-or were you ever involved in discussions
before the Christmas seasons as to whether or not the Board of Directors would
vote a bonus for the particular year?
A. Yes, sir, one year it came up that a way-well, anyway, I understood this
after I had been there quite a while. I mean , I got it from rumors around the
plant. I think it was explained to me.
Q. What was explained to you, Mr. Pace?
A. That Christmas bonuses would be voted by the Board of Directors, because
everyone thought they got it at a certain time and they weren't there and some
way or another it got aorund the plant that they had not voted on it yet.
Q. So, there was never any doubt in your mind but what the Board of
Directors voted on and decided Christmas bonuses on a year to year basis, is
that correct?
A. This was just rumor. I mean , you just take it and goes along with it
until you find out different.
Kimberlin testified he told Pace that if smoke breaks were left up to him they
would all stop and if smoke breaks were to be continued if the Union came into the
plant that they would have to be put into the contract between the Respondent and
the Union. As noted above I found Pace's testimony unreliable and give it little
weight at this point. I credit Kimberlin when there is conflict with Pace. It is
well, at this point, to note the language of the Supreme Court in N.L.R.B. v. Pitts-
burgh S. S. Company, 337 U.S. 656, 659, where it held.
Thus, in the determination of litigated facts, the testimony of one who has
been found unreliable as to one issue may properly be accorded little weight
as to the next.
Accordingly, I find the allegation in the complaint as to September 9 has not been
established and this allegation will be dismissed.
As to the October 20 allegation, this relates to a conversation between employee
Rex White and Kimberlin. According to the testimony of both White and Kimberlin,
White asked to take a day off to testify in the representation case in October. He
told Kimberlin that he had been served with a subpena to testify. Kimberlin told
him that if he requested time off for sickness he could grant it to him but otherwise
he would have to see Mr. Rosenbaum about it. He went to Rosenbaum and was
given time off to testify. It appeared that Kimberlin had never had experience in
granting time off to employees because of being subpenaed or in order to testify
20 Zerbe credibly testified that while performing their work during the period of the
Union's organization, both Ray and Lloyd acted like "asses." This is substantiated by
the evidence detailed earlier in this Decision. But Zerbe said he was raised as a child
in such a manner he could not refer to women as "asses" so he employed the term
"goat" for that purpose. A "goat" was one who went out on a limb and sawed it off
behind him. An apt description, it may be added, for the actions of Ray and Lloyd not
related to any union or concerted activities of theirs.
217-919-66-vol. 156--85
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in any court action. Further, according to Kimberlin's testimony one employee that
day had already been off and if White were released it might be necessary to shut
down a machine. In situations of this sort, Kimberlin explained, it was Rosenbaum's
responsibility to know about it so that when the machine was shut down the order
would come through his office and be his responsibility. In view of these facts,
I see nothing about the October 20 allegation that would support a finding of
violation of Section 8 (a) (1), and will recommend this allegation be dismissed
As to the November 13, 1964, date involving Kimberlin, it too involved employee
Rex White. According to White, he and Kimberlin were discussing whether or not
an election would be held in view of the fact that Fannie May Ray was discharged.
White thought that after the discharge the election might be delayed, but Kimberlin
differed because Ray was discharged over the "commotion" she made when in the
office with Rosenbaum. The General Counsel then asked the following questions
of White:
Q. Now, was it in this conversation that he accused you of coming there and
working just to organize the Union?
A. I am not sure whether it was that conversation that day or not.
Q. Did he at one time or another make that accusation, Mr. White?
A. Yes, he did.
Q. What did you say about that? Do you recall?
A. Well, it seemed to me like he might have heard it around the plant or-
I don't know, but-where I don't know, but I told him, "that's not so." I said,
"there's nothing to it. That's not the reason I came here.'
Q All right. Thank you. During this same conversation, did Mr. Kimber-
lin say anything about whether the Union would hurt you or help you if it
came into this plant?
A. Well, whether it was that conversation or not, I am not sure , but we did
talk about it.
Q. What was said, now, whether ...
A. Well, he said he thought it would probably hurt us, rather than help us;
that probably things might be tightened up; that there was a lot of things that
was going on that would probably be put to a stop.
9. Did he make any mention of what things might be tightened up if the
Union came in ? Do you recall, sir?
A. Well, everyone would just have to be longer on the job-more on the
job and a lot of-maybe, smoking and some of the loafing would probably stop.
The General Counsel then asked White if White had a discussion with Kimberlin
with reference to negotiating with the Union. The record testimony on this point
as testified to by White is as follows:
A. Yes, it was.
Q. What was said with reference to it?
A. I believe he said we would probably take off what we had now and we
would have to start from scratch and go up on everything we got.
Q. That is when negotiations started?
A. Yes.
Before turning to Kimberlin's side of these conversations , it should be noted that
there is nothing in the conversation with White relating to the discharge of Ray
that would violate the law. The testimony with respect to the accusation that White
had come to work there just to organize the Union loses weight because of the
leading question and in addition it lacks the necessary specificity as to time and
place and is too vague in substance to support a finding of a violation of the Act.
Kimberlin's statements in conversation with White that the Union would "prob-
ably" hurt the employees rather than help them, that "probably" things might be
tightened up, are too vague to show the Company would adopt a policy of tightening
its working requirements in retaliation to the advent of the Union. Rather it tends
to show only his isolated opinion. Likewise, the vague testimony by White that
Kimberlin told him "we would probably take off what we had now and we would
have to start from scratch and go up on everything we got" is of insufficient weight
to establish a violation of the Act According to the credited testimony of Kimberlin,
he was merely expressing his opinion to White as to the collective-bargaining sessions
Kimberlin's opinion was that negotiating a contract with the Union would be "like
trading horses." He told White:
I said if I had a horse I wanted to sell you. I am going to put my price up
high and, if you want to buy him, you're going to start out low and, I said, we
are just going to have to keep a nagging at each other until we come to some
agreement if you buy it.
PETER PAUL, INC. 1333
I said that's the only thing I know about any union at all. I never belonged
to a union and I told him I didn't . 1 never belonged to a union and I didn't
know anything about it.
In the total context of this discussion between Kimberlin and White coupled with
the vagueness of White insofar as certain of the instances are concerned , and the
generalness of the discussion coupled with the apparent lack of knowledge of both
Kimberlin and White as to what takes place in a contract negotiation meeting, I
find no tangible evidence that would tend to show an interference with or show a
threat or coercive attitude of the Company against the employees should the employ-
ees desire to select this union as their representative. Accordingly, I will recommend
that the complaint with respect to these allegations be dismissed.21
In conclusion, then, I find the General Counsel has not established, by a preponder-
ance of the evidence, a violation of Section 8 (a) (1) and (3) of the Act in Case No.
16-CA-2182, and will recommend that the complaint in this case be dismissed in
its entirety.
B. Case No. 16-CA-2224
As noted earlier, this case was heard 4 months after Case No. 16-CA-2182 was
heard.
At the commencement of the trial of the consolidated cases on September 14, 1965,
General Counsel stated that no new evidence of violation of Section 8(a)(1) would
be presented in Case No. 16-CA-2224 but rather the 8 (a) (1) evidence in Case No.
16-CA-2182 would be the sole evidence relied upon to establish the violation of
Section 8(a)(5) under the theory of Irving Air Chute Co, Inc.,22 149 NLRB 627
affd. 350 F. 2d 176 (CA. 2), and that all that would be developed at the hearing
would be evidence to establish that on September 22, 1964, the Union represented
a majority of the employees as evidenced by authorization cards.23
At the conclusion of General Counsel's opening statement Respondent moved:
... for a dismissal of the Complaint under the Irving Air Chute case in that the
previous 8(a)(1) and 8(a)(3) is before the Trial Examiner and he is in a
position to determine at this point, if that would be sufficient to come within the
Irving Air Chute [case]. We feel that it was not and that further proceeding
can be avoided by dismissal on this basis.
General Counsel agreed to this statement saying, "Yes, I think that would neces-
sarily follow, if the Examiner is ready to rule on the 8 (a) (1)."
I told the parties that I had reached my decision in Case No. 16-CA-2182 but was
withholding it from issuance until the evidence had been presented in Case No.
16-CA-2224. I told them it was my decision to recommend a dismissal of the
8(a)(1) and (3) complaint in Case No. 16-CA-2182 in its entirety, and I did so
dismiss it at the hearing for the reasons to be set forth in this decision.
Accordingly, in view of General Counsel's theory that a finding of a violation of
Section 8(a)(1) in Case No. 16-CA-2182 was a prerequisite to a finding of a
violation of Section 8(a) (5) in Case No. 16-CA-2224, and my decision to dismiss
the complaint of 8 (a) (1) and (3) in Case No. 16-CA-2182 in its entirety, I granted
the Respondent's motion to dismiss Case No. 16-CA-2224 and closed the hearing
rather than take "meaningless" evidence for some 4 or 5 days at great expense of
time and money to the parties and the Government.
Discussion
The court in Irving Air Chute Company, Inc., supra, agreed with the Board that a
bargaining order for a remedy was better than an election, because to hold an elec-
tion "would be manifestly unfair to the Union since it would allow the Company to
21 Accordingly it is unnecessary to do more than comment on the fact that General
Counsel had to ask leading questions to get what little evidence he had. Here it was not
apparent that the witness was either hostile or had exhausted his recollection Answers
to leading questions have little if any weight as the trier of the facts does not know
whether the answer was suggested by the question -
21 The court found "The anti-union activity by the Company [Section 8(a) (1) viola-
tions] . . . established that this refusal [to recognize the majority status of the Union
and bargain with it] was in bad faith."
za The General Counsel stated on the record:
It is also a necessary ingredient in this type of situation that the 8(a)(1) be sub-
stantial and provide an 8(a) (1) . . which would support the theory that prior
to the election [Respondent had so undermined the union that a free election could
not be obtained].
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reap the benefits of its antiunion acts and undoubtedly would result in additional
costs to the Union of a new organizational drive."
It would seem to follow that as there was no finding of Section 8(a) (1) violations
an election could be held with fairness to all parties if so desired. See Hammond &
Irving, Incorporated, 154 NLRB 1071, issued September 9, 1965. This is the same
court that said "No court, however, has held that a borderline, unaggravated Section
8(a)(1) violation, standing alone, occurring prior to an election, warranted a bar-
gaining order." See N.L.R.B. v. Flomatic Corp., 347 F. 2d 74 (C.A. 2).
Upon the basis of the above findings of fact and upon the entire record in the
consolidated case, I make the following:
CONCLUSIONS OF LAW
1. Peter Paul, Inc., is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Retail, Wholesale, and Department Store Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
3. Peter Paul, Inc., Respondent herein, did not engage in unfair labor practices
as alleged in the complaints.
RECOMMENDED ORDER
I recommend that the complaints in Cases Nos . 16-CA-2182 and 16-CA-2224 be
dismissed in their entirety.
EXHIBIT "A"
PETER PAUL, INC.
Dallas Division
P. O. Box 35007
Dallas, Texas
October 13, 1964
Dear ------------------ :
On October 21st the N.L.R.B. will conduct a hearing as a result of the filing of a
petition for an election by R.W.D.S.U. Thereafter, the N.L.R.B. will probably hold
an election and you will have an opportunity to decide whether to hire Mr. Jake
Stewart and his organization to represent you.
This is not a "love letter" such as Jake predicted we'd be sending you. This
letter is intended to give you some facts. You are intelligent and when the time
arrives, you will decide, based on those facts, whether you want to be represented
by a union like R.W.D.S.U. I don't care if Jake is afraid for you to know the truth,
you are entitled to have all the facts before making your decision.
Some rumors have circulated which just are not true. Here are some of the facts:
1. If you haven't signed a union card, you don't have to sign one. Regard-
less of the outcome of the election, you will not have to join the union.
2. If you did sign a card, you can vote "NO" in the election. The Union has
no way of checking on how you vote.
3. If you signed a card but want it back, you can ask Jake Stewart to return
it to you. Whether he'll do so, I don't know.
4. If you signed a card, you do not have to stick with the union to protect
your job. It's against the law for a company to discriminate because of union
activity, and we're not going to violate the law. (However, it is my job to run
this plant efficiently and economically, and I'm going to try to do this; union
membership is not an insurance policy against being fired for just cause.)
You have a good job. You have a high rate of pay and liberal fringe benefits,
including:
Up to four weeks paid vacations,
Nine paid holidays,
Fully paid hospitalization,
Fully paid life insurance,
Fully paid pension plan,
Fully paid income insurance,
Paid funeral leave,
Free uniforms,
Company cafeteria,
many other miscellaneous benefits
In my opinion, your pay, benefits and working conditions are better than those in
the R.W.D.S.U. contracts in this area. Ask Jake Stewart how many of his contracts
provide for nine paid holidays, for example. How many of his contracts provide a
pension plan-the entire cost of which is paid by the Company.
PETER PAUL, INC. 1335
Jake likes to cite the law in his bulletin in telling you what he will force your
company to do if you will only vote to hire him. If Jake wins the only thing the
law would require of your company is that it "bargain" with him. Section 8(d) of
the Labor Management Relations Act defines bargaining as follows:
For the purposes of this section, to bargain collectively is the performance of
the mutual obligation of the employer and the representative of the employees
to meet at reasonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, or the negotiation of an
agreement or any question arising thereunder, and the execution of a written
contract incorporating an agreement reached if requested by either party, but
such obligation does not compel either patry to agree to a proposal or require
the making of a concession.
The same law also guarantees an employer the right to free speech, contrary to
what Jake Stewart tried to make you believe in one of his bulletins. Section 8(c)
of the Labor Management Relations Act is as follows:
The expressing of any views, argument, or opinion, or the dissemination
thereof, whether in written, printed, graphic, or visual form, shall not constitute
or be evidence of an unfair labor practice under any of the provisions of this
Act .
Don't be taken in by the unfulfillable union promises and propaganda. When
the time comes, vote "NO."
Sincerely,
EXHIBIT "B"
/S/ H. Rosenbaum
H. G. ROSENBAUM
PETER PAUL, INC.
Dallas Division
P. O. Box 35007
Dallas, Texas
October 23, 1964
Dear -------------------- :
I see from Jake's recent bulletins that he doesn't like it when the company refuses
to jump to do everything he suggests . He also seems annoyed when the company
makes facts available to you which show how he has either been deliberately trying
to mislead you or just plain and simply not telling you the truth.
Jake claims I said "We don't guarantee you anything here at Peter Paul, Inc."
Jake knows I did not make that particular statement. You and I know that without
Jake ever having had anything to do with it, Peter Paul, Inc. has already provided
much more for you than Jake has ever gotten for any employees which he has
tricked into hiring him. Jake is talking promises-I am talking results. If Jake
does not like me saying this, let him produce a contract which he or the R.W.D.S.U.
has gotten for anyone in the State of Texas which is as good as or better than what
you already have. You didn't have to pay Jake or anyone else for what you have.
Why pay him now?
I see Jake is still trying to quote the law to you. The only problem is that he is
misquoting it. In his October 16 bulletin Jake claimed that there was no way that
the company could change your present wages and benefits if you hired his union.
That just plain and simply is not true and is not what the law provides. The law
provides that both parties, the union as well as the company, must bargain with
respect to all wages, hours, and other terms and conditions of employment, including
all existing benefits. I urge you to read Jake's bulletin very carefully After promis-
ing you (even though he knows it is a promise he may not be able to keep) that
you will positively retain all of your present wages and benefits, he goes on to imply
that you will automatically recive improvements, in wages, hours, and other condi-
tions of employment. Jake knows that if you decide to hire him, the only thing that
he will have any rights to do is "bargain" over these matters, and that the law
specifically states that the duty to bargain does not require your company to agree to
anything which it feels is against your company's best interest. Why is Jake deliber-
ately trying to mislead you?
The rumor is being spread that if you haven't already signed a union card, you
might as well do so as you would have to pay dues to Jake anyway. This rumor is
not true. The Texas Right to Work Law protects you from paying dues to any
union you, as an individual, do not chose to join.
I also understand many of your fellow employees who have signed cards have
expressed a desire to "get out of the union" and have indicated they would like to
vote against it but Jake has told them they will lose their jobs if they quit the union
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
now. This is another of Jake's untrue rumors. No one will be fired for having
attended a union meeting or for having signed a union card. Is Jake so afraid of
losing your dues that he is willing to try to blackmail you into his union?
Jake speaks of guaranteed jobs, wages , and benefits . The only way to guarantee
anything around here is to make a good product and have happy customers. That
will provide steady work with high wages and good benefits . Jake can't help you or
Peter Paul with that , and I doubt if he is really even interested in it.
Don't be taken in by unfulfillable union promises and propaganda . When the
time comes vote "NO."
Sincerely,
H. G. ROSENBAUM
/S/ H. G. Rosenbaum
Dear -------------------- :
EXHIBIT "C"
PETER PAUL, INC.
Dallas Division
P. O. Box 35007
Dallas, Texas
November 13, 1964
The N.L.R B. election is to be held on Tuesday , November 24, beginning at 3:15
P.M. in the cafeteria . Since this is a matter of vital concern to you, I urge you to
vote and to vote "NO."
Attached is a sheet which compares your wages and benefits with those of a
group of TEXAS employees who are represented by R.W.D .S.U. Study the figures;
they'll convince you, I believe, that Peter Paul, Inc. has done much more for you
voluntary than Jake's union has been able to force the other company to do.
I'm satisfied this Union won't increase our business or help us and in my opinion
Jake can 't do anything for you. Why gamble?
Incidentally , one of Jake's propaganda sheets said that a "standard clause" in
R.W.D.S.U. contracts provides for 40 hours work or 40 hours pay per week. The
R.W.D.S.U. contract we have studied makes no provision for a guaranteed forty hours
pay. Maybe R.W.D.S .U. negotiates some sub-standard or "sweetheart contracts."
Just remember:
(1) Even though you may have signed a union card, you can and I believe
should vote "NO."
(2) The election is by secret ballot. Jake and his buddies won ' t know how
you vote.
(3) No one will ever have to belong to any union to hold a job with Peter
Paul, Inc.
Now is the time for you to let your fellow employees know that you're going to
vote "NO!"
Sincerely,
/S/ H. G. Rosenbaum
H. G. ROSENBAUM
Peter Paul Incorpiated RWDSU
Paid holidays --__-__ Nme----- ---------------- Five
Vacation --------____ Up to four weeks ________________________ Up to three weeks
Pension plan --______ In effect since 1952 ______________________ None
Insurance --_________ An excellent plan , fully paid by com- There is a plan but we don't have details
pany of it
Funeral pay_________ Three days ------------------------------ Three days.
Special Christmas 12 months service , 40 hrs , 9 months None
payments.' service , 30 hrs ; 6 months service,
20 hrs
'Uniforms----------_ _ Furnished and maintained ______________ Furnished-wash and wear uniforms
maintained by employees
Jury duty----------- None ------------ Paid.
Pay----------------- Men: From $1 85 per hour to $2 76 per Men From $1 46 per hr to $2 24 per hour.
hour. Managers get from $2 34 to $2 52 per hr
Women Basic rate of $1 96 Incentive Women From $141 per hour to $191
pay produces more income. per hour.
i Subject to approval by Board of Directors
PETER PAUL, INC.
EXHIBIT "D"
1337
PETER PAUL, INC.
Dallas Division
P.O. Box 35007
Dallas, Texas
November 19, 1964
Dear---- ---------------
When a union is trying to sell you on having it to represent you, there 's always a
lot of talk about job security.
I believe you are too intelligent to fall for this sales pitch . You folks over the
years have really had job security . You know that only a handful of people have
been discharged by me in thirteen years. And then when they gave me no other
choice. My "fat check" lawyers tell me that I've been far too easy.
Incidentally to answer some of the rumors that are circulating , Fannie May Ray
was discharged for insubordination ; I had no choice.
What kind of security do you have under an R.W.D.S.U. contract? I've looked at
the contract I wrote you about earlier . Here's what it provides:
"Article 2 Management Rights
Management of the business and direction of the working forces, including the
right to plan , direct and control store operations , hire, suspend or discharge
for proper cause, transfer or relieve employees from duty , because of lack of
work or for other legitimate reasons, the right to study or introduce new or
improved production methods or facilities , and the right to established and
maintain reasonable rules and regulations covering the operation of the store(s),
a violation of which shall be among the causes for discharge are vested in the
Company, and provided further that this right is not in conflict with any other
provision of this Agreement . However, no employee shall be discharged or
discriminated against because of membership or non -membership in the Union."
"Article II. Dispute Procedure
d. The company shall not discharge any employee without just cause and shall
give at least one written warning notice of the specific complaint or complaints
against such employee to the employee , except that no warning notice need be
given to any employee before discharge for just cause such as incompetency,
dishonesty , intoxication , or failure to perform work as assigned . The Union
may file a written complaint with the Employer within seven ( 7) days asserting
that the discharge was improper . Such complaint must be taken up promptly,
and if the Employer and the Union fail to agree within forty -eight ( 48) hours,
it shall be referred within twenty -four ( 24) hours to the Board of Arbitration.
Should the Board of Arbitration rule it was an improper discharge , the Employer
shall reinstate the employee in accordance with the findings of the Board "
If we had had a policy of firing people for incompetency or failure to perform
work as assigned , some of you wouldn't be working here now'
Don't be tricked-under a union contract you would have less job security than
you now have . Ask Jake to put in writing just what he's going to do for you.
Each of us make his job secure by doing a good job, making an excellent product,
and by our Company being able to sell this product.
VOTE NO!
Sincerely,
EXHIBIT "E"
/S/ H. G. Rosenbaum
H. G. ROSENBAUM
PETER PAUL, INC.
Dallas Division
P. O. Box 35007
Dallas, Texas
November 21, 1964
Dear -------------------
This, my last letter to you before the N.L .R.B. election , must cover a lot of
ground. First , though, I want to express my appreciation and that of Peter Paul, Inc.
for the many assurances of loyalty and support which we've received in the past
several days.
Let's review some of the rumors which have been circulated by the Union:
(1) RUMOR: If your name was listed on Jake's Union Organizing Committee,
you've got to vote for the Union to protect your job.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FACT: This is a lies It's an unfair labor practice to discriminate because of
union activity ; we're not going to violate the law. When we win the election,
I'll be happy . I will bear no grudges . When we win the election, no one will
be fired because he or she signed a union card or was active for the union.
(2) RUMOR: Walgreen employees under an R.W.D.S.U. contract get fabulous
wages.
FACT: The wages shown covered 49 hours-not 40 hours.
Ladies-did you see a wage scale for women ? The wages shown were for men
not women . Under the Walgreen contract , the men receive only five paid
holidays and they pay for the cost of their insurance coverage . Jake 's trying
to kid you folks! Incidentally , Jake didn 't tell you that the Walgreen Warehouse
is to be moved to Houston.
(3) RUMOR: Fannie May Ray was fired because she spilled some glue or she was
fired for union activity.
FACT: Fannie May Ray was fired because she was insubordinate. On two
occasions she flatly refused to take back a five dollar bill which she had thrown
down on my desk. She just pushed me too far . Union or no union, some
discipline has to be maintained.
You know what Peter Paul, Inc. has done for you as an employee . Do you know
what Jake is going to do? Will he give you a written statement guaranteeing anything?
Before you vote Tuesday, you should understand the law. Should the union win
the election Tuesday, Jake or some other union representative will make demands
upon the company for you. There is no law that requires Peter Paul, Inc. to do
anything Jake desires or says. There is only one way that a union representative can
enforce his demands upon the company . This is by calling a strike . When you
strike, you will lose your wages and possibly your job. Our company is free to have
someone to take your place while you are striking and when the strike is over there
may not be a job for you.
I'm convinced that your best interests as well as the best interests of the company
will be served by voting "NO" in the election Tuesday.
This union campaign has caused much dissension and unrest among us. Let's
put all this behind us with an overwhelming "NO" vote Tuesday.
Sincerely,
/S/ H. G. Rosenbaum
H. G. ROSENBAUM
EXHIBIT "F"
[Zerbe-Ray conversation]
The following telephone conversation occurred on October 14, 1964 at about
8:00 p.m. The conversation lasted about 10 minutes. Elnora Purcell and James Q.
Stewart monitored the conversation . Mrs. Purcell was on an extension phone and
Mr. Stewart was seated beside me taking notes.
Mrs. RAY' Mr . Zerbe you asked me to call you about we girls writing to Nauga-
tuck to get some of the men up there to come down here so we could tell them what
was going on. Why do you want us to let those men know9
ZERBE: I don't think they know what is going on If you could get them down
here and talk to them and have a meeting you could get things straightened out.
Unless you can get them down here , you can 't get it settled . I don't know whether
those lawyers have anything to say about it or not. I am almost positive if the girls
would do this they could get them down here.
Mrs. RAY: If the girls signed this wouldn't it get them fired?
ZERBE: No, No sir. I wouldn't want anyone to be a goat. But someone is going
to be a goat . This union business has been saddled on them. I have been in con-
ference with these lawyers . They have been looking at one or two girls. Somebody
is going to be a goat. They said Fanny and Polly. I said don 't look at them. I am
going to tell you, you are picking at the wrong girls. He asked me how I knew.
I said that is all I am going to tell you, but you are picking on the wrong girls.
Mrs RAY: They are barking up the wrong tree. We didn't start this. I told you
yesterday that I felt like they were looking at me and saying I started this union
but I didn't.
ZERBE: I know that but I can't hammer it into their heads.
Mrs. RAY: I don't want to be made the goat but if I am I will be big enough to
take it.
ZERBE• I will tell you in confidence just how it is. You know the union will have
to get 51% of the votes , and the company don't have to sign a contract . Then there
is only one thing you can do, that is to go on strike. You and Polly don 't go out.
PETER PAUL, INC. 1339
You stay right in there. I know every complaint you have is legitimate. I thought
Rosenbaum might try to do what is right. I was talking to him the other day and he
said if Polly hadn't taken it someone would have. I told him they had to get right.
Mrs. RAY: They will have to. It's all wrong now.
ZERBE It was just like the other day. I was standing at the rack machine and
Bessie threw on the belt machine. I don't think it is right. I said there was a lot
more that is wrong, out there. I said they were going to have to go back to fair play,
and when I mean fair play, I mean fair play. Tooti (Wofford) don't know the whole
situation . If you could get Tooti and some others it could all settle down. I don't
want you and Polly to be the goat. I am not exonerating the company. I know your
demands have been right, but you don't want a union.
ZERBE' The girls told me about the wrapping machines. It won't stop without a
clutch. I am on the safety committee and I don't like it. There are a lot of rumors
around and talk in the plant. Bertha (Humphries) asked me what I knew about this.
I said I didn't say this this to be mean or to be bossy, but it isn't right She said Tooti
had told her something. They said they had promised my job to Red. I said you
know that is a damn lie.
Mrs. RAY' I know there is a lot going on. You can't talk to anyone without the
company watching you.
ZERBE: Ethel (McMannus) asked me what I knew. I said I don't know a damn
thing. I am not talking union to these girls. What they do is their business. Some-
body is really sick.
Mrs. RAY: You are right about that.
ZERBE: If you girls will get in touch with Naugatuck you will get things straightened
out. Nobody will be fired. I will give you my word on that.
Mrs. RAY. They want you to shake out scrap and pack at the same time. I told
them I wasn't going to do it for them or anyone.
ZERBE. I will tell you about Fred. (Phillips). He is just a figurehead. You call
Naugatuck because you can't have your say here. You have been after this for 6
months. Now the company is stuck with a union. You could put this in a circular
or anyway you want to. Or you could get a night letter off and say the girls want to
talk to you. Would you please come down. Just sign it the girls of the plant. No
one needs to know who sent it. Then you tell the girls to get ready with their union
questions. When Mr. E- was here last time we could not talk to him. If you
will give me this paper I will get it typed up. My wife types. You just write it out
and give it to me and my wife will type it up for us.
Mrs. RAY: I know you are tired and I will let you go. I am not going to keep you
any longer. I'll see what the girls think about this.
ZERBE: I want you to watch out somebody is talking to Ethel (McMannus). I
don't know who it is.
Mrs. RAY: I know who it is. It is Bea. The last girl they called back. Bea is the
one that is doing all the talking and Mr. Rosenbaum talks to her all the time. Then
she talks to Ethel and Bessie.
ZERBE: I thought it was Lera (McKinney). But maybe it isn't. Is Bea going to
the union meetings?
Mrs. RAY: No. She is getting her information from some of the girls then doing
her talking.
ZERBE: As soon as I get to talk to the lawyers I will find out more. When I was
talking to him he sa'd you tell them that and don't mention my name because we have
to do this quitely. Gil might be a gentlemen but that struck me funny. That is what
started me to thinking. This is all Rosenbauin's fault.
Mrs. RAY: That man don't know how to make a talk.
ZERBE: Rosenbaum ask me if I told those girls to have a meeting. I told him to
come down here and stop production of it was necessary. If someone tells me there
is something wrong with a machine then I want something done.
Mrs. RAY: When Rosenbaum talked to the lawyers did he straddle a chair like he
did when he talked to us? I will talk with the girls some more about this and then let
you know.
ZERBE• Well, you see about it and I know you can get things straightened out this
way. No one will get fired. No one will know who sent the message.
Mrs. RAY- I will talk to the girls tomorrow and let you know.
I have read the foregoing statement consisting of two and one third pages and
believe it to be true and correct to the best of my knowledge and belief.
Fannie May Ray
(S) James Q. Stewart
JAMES Q. STEWART
(S) Elnora R. Purcell
ELNORA R. PURCELL
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
EXHIBIT "G"
[Zerbe-Lloyd conversation]
POLLY: Hello, could I speak to Ted please?
Reply: You sure can.
POLLY• Hello, Ted. This is Polly. I am kind of upset , Ted, about the way they
did Fannie.
TED' Well, Polly, I wasn't lying to you when I told you the other day that they
tried to give her her money back two or three times. You are not any more upset
about it than I am, Polly. That is the reason, you know, I told her before to watch
'em. You know as well as I do that they were watching you and Fannie, and tried to
get you all to write Naugatuck. I had to go into that meeting and I asked plain out.
I would say if it was up to these lawyers it would have happened a long time ago.
I am going to say nobody needs to be afraid. There won't be anybody else fired if
they do their job. I talked to them today, and I know a lot of people in there are
back. Now, I can't do it right now because somebody has got to get hurt. You know
that as well as I do. But, she did give them an excuse; she can't deny that, Polly,
when she refused to take the money back. Like I said today, I hope everybody stops
to think. Think about themselves because the company is not going to get hurt and
they are not going to have any union. I am sorry I upset you today. I have been
worried all day about it. I will go with you anywhere into the office and if you want
me to I will go with you to talk to Jake and ask him to give you proof that he can
better you and can get what you are after. I am willing to go that far. Because, as
I say I know how the union operates. I can tell you a lot of things and if Jake will
tell you the truth or you can go to any lawyer and they will tell you that his union has
5 men in it that took the oath and were kicked out because they belong to the com-
munist party. I shouldn't tell you that but I know that to be the truth. I'll tell you
the truth you should have joined a production union but not this union. This union
is not for the employees. It was started in New York. They have lost out. They are
not a strong union. It is not the right type union for you. It is all right in department
stores but not in factories But, it will never work in any other way . I have begged
and pleaded with the company lawyer to please stay off of you and Fannie. I told
them you didn't start the union. Please don't give them an excuse to fire you. Please
just settle down and do your work.
POLLY: Well, why did they pick on Fannie to start with9
ZERBE' I don't know, Polly, I don't know what started it. There is so much picking
out there. But, I do know this-that you two girls were the most open about support-
ing the union. And, this was discussed in a meeting with the lawyers. I told the
lawyers that they were picking on the wrong parties. At one time they talked about
firing the leaders and I talked to Fannie and told her to lay low. But, I do know this
that your's and Fannie's work is good and they like to have never found an excuse to
fire Fannie. I understand before there will be anymore discharges that it will come
from the home office. Gil has been too lax and he is afraid the front office will find
out about it. When the union came up with those application cards, they did not give
the names of the people who had signed them. They did not know anybody that had
joined the union at that time, and they did not look at the cards. Now, I know that
to be a fact Gil has been rode pretty hard, but he wouldn't have fired Fannie if she
had taken back that $5.
POLLY• Well, did Naugatuck tell Rosenbaum to fire her'
ZERBE: I am not sure, but I will find out tomorrow. I will ask Gil tomorrow morn-
ing and I will let you know But. I do know this, he Just had to do it. He couldn't
get out of it. I know that to be a fact, and if you don't think he is sorry you are wrong
about it, because I talked to him tonight before I left the plant and he does feel bad
about it He called me tonight and he said if there was anyway in the world that he
could have got out of it he would have but he just couldn't. I am not going to tell
you what to do but when the union comes out to write a contract the slate is going to
be wiped clean-we are going to start with a blank sheet of paper. If you have a
complaint, talk to Gil about it now because the union can't do anything about it. The.
union is not interested in you. All it wants to do is collect dues. You know that the
company has been pretty darn good to you Ask Fannie if the union has got her a
job. There is Pauline Story. She doesn't do her job but he can't fire her because
she is against the union. They probably will after the election. We are tied un today
on what we can and what we can't do. You can't hardly fire anybody at this point
unless the employee gives you an excuse. They couldn't fire Mannie May because of
her work but they can fire her because she wouldn't take the five dollars back. I don't
know how all this gule business got started but somebody blew it up into a big thing
but I don't know who it was. Like I told you before, somebody had to get hurt. I
PETER PAUL, INC. 1341
came to you personally and told you that and I also told Fannie , and I hope you didn't
tell anybody . When I came to you I came to you as your friend and I talked to you
and Fannie both, personally . There was no doubt in my mind that it was going to be
you two I think you will agree with me.
POLLY• Well, do you know if they plan on doing me the same way or not?
ZERBE: No, No . I don 't think they will. Just don 't give them any kind of an
excuse. No , Polly, you just go on and do your work and if I do find anything out like
that I will let you know. If they get on your back try to smile . I know it is hard, but
try to do it . Look at it this way-I have thought for about a year that the death of
President Kennedy was an act of God . I don't think that this country could have
stood another year of him . So, maybe something good will come of this. There is a
change coming up in the company because things have been brought to their atten-
tion I think they will be for the better.
POLLY: Bound to be for the better, `cause it can't get no worse.
ZERBE: I agree . I think that Ethel is sick and she is going to have to be replaced.
POLLY: She is bringing it on herself.
ZERBE: I am not blaming anybody with it. I know she is doing it herself. And,
if I hear her and Gil talking about you I will let you know . And, if they call you up
in the office just ask them what they want you to do and you do it and you are safe.
POLLY: Well, the main thing, we want this union for Ted is to protect us.
ZERBE: Well, you are going to get protection whether you have a union or not from
here on in.
POLLY: Who are we going to get in from?
ZERBE' You are going to get in from the home office . I told you there is a change
coming up. Let me say this, Polly, he is not going to keep lawyers here at $25,000 a
year to run his business . That is for a fact. They are going to send someone in here
that can handle things.
POLLY: In other words , they are going to transfer Rosenbaum?
ZERBE: I have an idea that is what is going to happen. That will be one of the
great things that will come out of this whole thing.
POLLY' Well , they sure didn 't protect Fannie Mae and they don't think any more
of me than they do of her.
ZERBE• Well , you mean the lawyers?
POLLY: The lawyers or the home office, either.
ZERBE: Well, Fannie Mae gave them an excuse.
POLLY: Ethel had her upset.
ZERBE . Well, I know that , and that is the reason I asked you not to get upset.
I know it is hard.
POLLY: You know how hard Fannie works and she is never late. She gets there
early.
ZERBE I know how hard she has worked . I hated for it to happen . I didn't want
to be a part of it. There are people in that plant up toward the front that I wouldn't
trust out the front door. But, I have to work with them. I have to laugh and smile.
And, I know that the minute I turn my back that I had better have somebody to stand
by me because I am going to get cut at. And, that is what I am trying to tell all the
girls. You can lick this thing and you can lick it better than you are right now,
because I truthfully don't believe the union can win enough votes. It is going to be
close but it is not going to be enough . You would have been better off if you would
have held it off for three months.
POLLY: Well, the company more or less forced it on us.
ZERBE: No. It would have been straightened up in two or three months. I will
tell you another thing . There are people down here who should have a raise. But,
we can 't even give them the raise that they are entitled to because it is an unfair labor
practice. We can't give a member that has signed a union authorization card a raise
because it is an unfair labor practice . Now that is the damndest thing I ever heard of.
POLLY: How about the floor ladies? Can they get a raise"
ZERBE: No. Not unless the company gives a general raise . I have two men, Earl
and that one I just hired in, that are due two raises , and I can't give it to them until
this whole thing is settled . I had them call the Labor Board on that and they said it
would be an unfair labor practice . I can tell you that it is foolish for you to join the
union, but I can 't tell you the company told me to tell you that because that makes
it an unfair labor practice . That is why I came down to talk to you as a friend
because I knew you wouldn 't tell anybody.
POLLY: Well, do you think it is fair-the way they do us about our day work?
ZERBE: No. I don't and I know Mrs . Sample don't.
POLLY: Well, now what are they going to do about that?
ZERBE: Well, that is what we are going to have to take up.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
POLLY: Well, we have been begging about it for two years and they never have
done anything about it yet.
ZERBE: Well, it has gone on too long now. I will agree with you. It has been
entirely too long. The home office is going to have to evaluate the whole situation,
and I know they will do it fairly.
POLLY: It sure is rough to work like a dog and eat your check and then don't get
nothing.
ZERBE: I know it and I will do something about it within two weeks. You know
I can't do anything until after the union is voted down because they would file unfair
labor practices.
POLLY: Why don't they get rid of Tooti? He ain't worth a darn.
ZERBE: Well, I will agree with you. But, we will have to wait until after the elec-
tion on that.
POLLY: He causes a lot of trouble out there in the plant, and they put up with it
because he is against the union.
ZERBE: I know it and I will take care of it soon as the election is over.
POLLY: What girls he can't go with he talks about.
ZERBE: I told the lawyers to quit telling him to upset the girls. I also told them
not to fire Fannie because they would come nearer winning if they would be kind to
the people but this vicious business would work against them. They also wanted
Tooti to get a bunch of my men to whip Jake at the plant gate. I told them that they
couldn't have any of my men to get them from the outside. I said it would look bad
for three colored and four white fellows to come out of the plant and go out there
and jump on Jake.
POLLY: Well, Jake is not afraid.
ZERBE: Well, he had better be. They will get him from somewhere.
POLLY: If they raise such a ruckus about that glue, how much of that chocolate
was spilled back there today, Ted?
ZERBE: I know it was spilled today, and Gil has been talking about sabotage to
frame union people but I am not for it. I don't think you should tell employees to do
anything that is wrong.
POLLY: I don't trust Tooti. I think he deliberately left the glue valve open.
ZERBE: I do, too. But, it would have been different if this had been the only time
it had ever happened but it happens all the time and everyone knows it. From now
on I am going to check the glue valve myself every morning.
POLLY: It won't do any good now because Fannie is already gone.
ZERBE: They might try to frame somebody else. See what I mean? Now you take
Jennifer. I don't believe she will tell Jake if I talk to her about the union. They are
all watching her. Well, Polly, you can rest assured that I will do everything I can to
keep them from firing you, and come by to see me any time I have some round records
and tropical fish that I would like to show you, and you are always welcome.
POLLY: Goodnight, Ted, thanks, and I will see you later.
ZERBE: Goodnight, Polly.
Office & Professional Employees, Local No. 3, AFL-CIO and
American President Lines, Ltd. Case No. 20-CC-508. Febru-
ary 8, 1966
DECISION AND ORDER
On November 17, 1965, Trial Examiner Louis S. Penfield issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent and the Charging Party filed excep-
tions to the Decision and supporting briefs, and the General Counsel
filed a brief.
156 NLRB No. 118.