Producers, Inc

National Labor Relations Board - Board Decisions

Jan 5, 1961

129 N.L.R.B. 1161 (N.L.R.B. 1961)

PRODUCERS , INC. 1161
Producers , Inc. and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America , Over-The-
Road and City Transfer Drivers , Helpers , Dockmen and Ware-
housemen Local No. 41 . Case No. 17-CA.-1607. Januarj 5,1961
DECISION AND ORDER
On July 27 , 1960, Trial Examiner William J. Brown issued his
Intermediate Report in the above -entitled proceeding , finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. He also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended dismissal of these allegations . There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member panel [Members Rodgers, Jenkins, and
Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the Inter-
mediate Report, the exceptions and brief , and the entire record in the
case, and hereby adopts the Trial Examiner 's findings , conclusions,
and recommendations.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Producers, Inc.,
at its Olathe, Kansas, warehouse, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Interrogating employees in a coercive manner concerning their
membership or activities in the Union.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right of self-organization,
to form labor organizations, to join or assist the Union herein, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in any other concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, except
129 NLRB No. 133.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized by Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its warehouse in Olathe, Kansas, copies of the notice
attached hereto marked "Appendix."' Copies of such notice, to be
furnished by the Regional Director for the Seventeenth Region, shall,
after being duly signed by the Respondent's authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notice is not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for the Seventeenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed as to the allegations of unlawful conduct with respect to the
wage increases of March and May 1960.
'In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their mem-
bership in, or activities on behalf of, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Over-The-Road and City Transfer Drivers, Helpers, Dock-
men and Warehousemen Local No. 41.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist the
above-named Union, or any other labor organization, and to en-
gage in other concerted activities or other mutual aid or protec-
tion, or to refrain from any and all of such activities, except to
the extent that such right may be affected by an agreement requir-
PRODUCERS, INC. 1163
ing membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
PRODUCERS, INC.,
Employer.
Dated-------- -------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case commenced with a charge filed by International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Over-The-Road and
City Transfer Drivers, Helpers, Dockmen and Warehousemen Local No. 41, here-
inafter sometimes referred to as the Union or the Charging Party. The complaint,
issued pursuant to Section 10(b) of the National Labor Relations Act, as amended,
hereinafter referred to as the Act, alleged that Producers, Inc., hereinafter sometimes
referred to as the Respondent or the Company, engaged in unfair labor practices
within the meaning of Section 8 (a)( I) of the Act. Specifically the Company was
alleged to have interrogated employees concerning their union membership and
activities and to have granted wage increases on or about March 27 and April 11,
1960, to undermine and discourage employees' interest in the Union. Repsondent's
answer denies the commission of the unfair labor practices alleged.
On the complaint and answer a hearing was held at Kansas City, Missouri, on
June 13, 1960, before the Trial Examiner duly designated by the Chief Trial Ex-
aminer. All parties participated in the hearing. Briefs have been received from
the General Counsel and the Respondent. Respondent's motion to dismiss on which
ruling was reserved at the conclusion of the testimony is disposed of in accordance
with the findings and conclusions below.
Upon the entire record herein, and from my observation of the witnesses, I hereby
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is an Indiana corporation. Its principal office and place of business
is at Evansville, Indiana. It operates a warehouse at Olathe, Kansas, where it is
engaged in the warehousing and shipping of household appliances. The Olathe
installation is the only one concerned in this case. The complaint alleges and the
answer admits that since January 1960 Respondent has shipped from the Olathe
warehouse directly to points outside the State of Kansas merchandise valued in excess
of $50,000. These jurisdictional allegations are admitted by the answer. Accord-
ingly, I find that Respondent is engaged in commerce within the meaning of the
Act and that assertion of jurisdiction is warranted.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interrogation of employees
Respondent commenced construction of the Olathe warehouse in September 1959.
Warehousing operations commenced early in 1960 when Charles Kramer was sent
to Olathe as superintendent in charge. The supervisory status of Kramer is clear
from the record. Thereafter, in accordance with Respondent's appraisal of the flow
of merchandise into the warehouse, employees were recruited and by mid-March
five hourly rated employees were working at the Olathe installation. Sometime within
a day or two prior to March 14, 1960, several of the employees joined the Union,
1164 DECISION S OF NATIONAL LABOR RELATIONS BOARD
On or about March 14, the Union requested recognition and, being refused, filed a
representation petition on March 23, 1960.1
It is the testimony of the witnesses for the General Counsel and, indeed, it is not
seriously contested by Respondent that instances of interrogation as to the union
status of employees occurred shortly after the commencement of organization.
Superintendent Kramer did the interrogating. At the hearing the Respondent
asserted the position that the interrogation was undertaken in good faith to ascertain
the validity of the Union's claim to represent a majority of the employees. In its
brief Respondent urges, in addition, that the interrogation amounted to no more
than an exercise of free speech and as such protected under Section 8(c) of the
Act and the Constitution of the United States. The issue in this phase of the case
is therefore whether Kramer's interrogation was coercive or protected.
Four of the employees who were on the March 14 payroll testified as witnesses
for the General Counsel. Former employee Messer testified, and his testimony
was not shaken by cross-examination,' that Superintendent Kramer came to him
at work and asked Messer why he brought the Union into the plant, stating that
he had been told that Messer started the Union. Kramer further said, according
to Messer, that he would rather have had the employees come to him before joining
the Union and that now they had joined it would be more difficult for him to get
benefits for them.
Employee McDaniel testified that Kramer inquired of him while at work if he
had signed a card and if he knew who had started the Union. Kramer was not
called as a witness by Respondent. Respondent Vice President Martini testified as
to this aspect of the case only that Respondent's policy, conveyed to Kramer, is to,
refrain from interference with employee organization.
The foregoing instances of interrogation are not instances of objective inquiry
as to the property of recognizing a labor organization; they are not "casual friendly,
isolated instance[s] of interrogation by a minor supervisor." See Blue Flash Express,
Inc., 109 NLRB 591, at 595. Neither do they amount to the mere exercise of free
speech under the First Amendment to the Constitution nor to protected expressions
of views under Section 8(c). N.L.R.B. v. Minnesota Mining & Manufacturing
Company, 179 F. 2d 323 (C.A. 8); National Shirt Shops of Delaware, 123 NLRB
1213. Rather, they include an attempt to inquire into the instigator of unionization
and the implication that the employees would be better without the Union; they
therefore constitute violations of Section 8(a)(1). Raymond Pearson, Inc., 115
NLRB 190, enfd. 243 F. 2d 456 (C.A. 5); Shell Oil Company, 95 NLRB 102, enfd.
196 F. 2d 637 (C.A. 5).
The testimony of employee Guber also establishes a violation of Section 8(a)(1),
although the only question asked of him by Superintendent Kramer was as to,
whether or not he had been to the union hall and had signed a union card. I find
this inquiry, which could, if standing in isolation, be permissible, to amount also to
a violation of the Act in view of the setting of the other coercive interrogations in-
which it occurred.
I do not, however, believe that the testimony of Foreman Hutton establishes an
instance of unlawful interrogation. Hutton testified that at a time when he was a rank-
and-file employee, about the middle of March, Kramer asked him if he had joined
the Union and, receiving a "yes" reply, further asked Hutton why Hutton had not
come to see him (viz Kramer) first. In this conversation, however, Kramer stated
that it was entirely up to Hutton whether or not he joined the Union and explained
that his only reason in inquiring was to see whether a majority of employees wanted
a union. John S. Swift Company, Inc., 124 NLRB 394; Nocona Boot Company,
116 NLRB 1860.
'Throughout the testimony dates are inexact. The four witnesses to the instances of
interrogation hereinafter discussed referred to them as occurring in "the middle of
March." It was stipulated that the representation petition filed by the Union on March 23
asserted that a demand for recognition had been made, as noted above, "on or about
March 14." This inexactness does not preclude a clear understanding of the sequence
of events
2A charge alleging violation of Section 8(a) (3) was filed by the Uninn following
Messer's discharge on March 24. This charge was later withdrawn and the charge herein
alleging only Section 8(a)(1) violations substituted Respondent pointed to this course
of events as tending to detract from the credibility of Messer I credit Messer whose
demeanor particularly under pointed cross-examination impressed me as that of a truthful
witness
PRODUCERS, INC. 1165
I find that Kramer's interrogation of employees Messer, McDaniel, and Guber
violated Section 8 (a) (1).
B. The wage increases
Effective as of March 14, 1960, the rate of pay for employees at the Olathe ware-
house was increased from $1.50 to $1.75 per hour. This initial increase was reflected
in the paychecks distributed March 24. Additional increases were given in the
amounts of 15 cents per hour on or about April 14, and 5 cents per hour on May 9.
For .the General Counsel, employees Guber and McDaniel testified that at the time
of their hiring they were merely told that their pay would be $1.50 per hour with no
mention made of future increases. Clifford Hutton, however, called as a witness for
the General Counsel, testified on his redirect examination that it was his under-
standing at the time of his hire that the Olathe employees were supposed to work
at the $1.50 rate and then be gradually raised so as to equal the rate prevailing at
Respondent's Evansville warehouse.
For the Respondent, Robert W. Martini, Respondent's vice president in charge of
warehouses, testified that about the first of March he was in a position to plan a wage
schedule on the assumption that the flow of merchandise into Olathe would be
regular. Accordingly, according to Martini, Respondent decided, during the week
of March 7 and prior to any knowledge of union activity, to increase the pay at
Olathe to $1.75 an hour and thereafter, over a period of 60 days to $1.95 per hour.
Pursuant to this decision, Martini testified, written instructions covering the first
step increase were forwarded by Martini to the Respondent's paymaster, Ogburn,
under date of March 12, 1960. Respondent's Exhibit No. 1 is a copy of the written
memorandum transmitted by Martini to Ogburn. Concerning this exhibit General
Counsel, conceding that he has no way to contradict it, minimizes it as self-serving.
General Counsel has also skillfully demonstrated the disparity of wage progress as
between Evansville and Olathe. He points out that the Evansville operation which
commenced January 1, 1958, received its first increase only after more than a full
year of operation and then in the amount of 5 cents per hour, the next increase in
the amount of 10 cents coming a full year later in March 1960.
The essence of the General Counsel's case with respect to the wage increase
amounts to a showing that increases were made effective shortly after and with
knowledge of the commencement of organization at the Olathe warehouse. In his
brief the General Counsel also contends that Respondent's failure to notify employees
of the decision to increase wages casts suspicion on the verity of Respondent's Exhibit
No. 1 particularly in view of the "general practice of employers" to notify employees
of increases as soon as management's decision in that regard has been made. I
cannot, however, take judicial notice of any such general practice. Assuming, in any
event, that the General Counsel's evidence sufficed to transfer the burden of going
forward with the evidence, though not the burden of proof, to the Respondent, I
believe that the Respondent has met that burden with the testimony of Martini and
Hutton and the March 12 communication to Ogburn. In this area the General
Counsel's evidence is sufficient to raise a suspicion but not to amount to a pre-
ponderance of the evidence on the record considered as a whole. I find that the
allegations of the complaint in this regard have not been sustained. The Loudon-
ville Milling Company, 79 NLRB 304.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes obstructing commerce and the free
flow of commerce.
V. THE REMEDY
The acts of interrogation on the part of Superintendent Kramer occurring through-
out a large part of the work force at a time when it was relatively small and having
been committed by the operating head of the Olathe establishment warrant a remedial
order I shall therefore recommend that the Respondent be ordered to cease and
desist from such acts of interrogation and from similar acts and to post appropriate
notices.
Upon the basis of the above findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By interrogating employees concerning union membership and activities as
found above, Respondent has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed them by Section 7 of the Act, and has thereby
engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. By granting the wage increases referred to in the complaint Respondent has not
violated Section 8 (a) (1) of the Act as alleged in the complaint.
[Recommendations omitted from publication.]
Reliance Fuel Oil Corp . and Coal , Gasoline , Fuel Oil Teamsters,
Chauffeurs , Oil-Burner Installation , Maintenance Servicemen
and Helpers , Local Union 553, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America
and Amalgamated Local Union 355, Retail , Wholesale and
Department Store Union , AFL-CIO, Party to the Contract
Reliance Fuel Oil Corp . and Coal , Gasoline, Fuel Oil Teamsters,
Chauffeurs , Oil-Burner Installation , Maintenance Servicemen
and Helpers , Local Union 553, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America
and Amalgamated Local Union 355, Retail , Wholesale and
Department Store Union , AFL-CIO, Party to the Contract.
Cases Nos. 2-CA-7173 and 2-CA-7.80. January 5, 1961
DECISION AND ORDER
On July 29, 1960, Trial Examiner Sydney S. Asher, Jr., issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the Charging Party filed exceptions to the Intermediate Report,
and the Respondent filed a supporting brief.'
The Board 2 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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications.
1. On January 27, 1959, immediately after a Board election, and
before challenged ballots were ruled upon, the Respondent discon-
1 The Respondent ' s request for oral argument is denied as the record , including the
exceptions and brief , adequately presents the issues and positions of the parties.
2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Leedom and Members Fanning and Kimball]
129 NLRB No. 141.