Ralston Purina Co.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 566 (N.L.R.B. 1967)

566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ralston Purina Company and International Union
of District 50, United Mine Workers of America.
Case 25-CA-2618
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
June 30, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On April 28, 1967, Trial Examiner Harry R.
Hinkes issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recom-
mended that the allegations of the complaint per-
taining thereto be dismissed. Thereafter, the
Respondent and the General Counsel filed excep-
tions to the Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case, and hereby
adopts the findings,I conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Ralston Purina Com-
pany, Corydon and Pekin, Indiana, its officers,
agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order, as modified below:
Delete from paragraph 2 (a) of the Trial Ex-
aminer's Recommended Order that part thereof
which reads "to be furnished" and substitute
therefor "on forms provided."
i The General Counsel excepts to the Trial Examiner's finding that
Walton's statement to employee Gray concerning Anderson's "trouble"
at the Borden Cabinet Factory did not have any interfering, coercive, or
restraining effect upon the rights of Respondent's employees We find
merit in this exception While it is true that Anderson testified that he did
not have any trouble at Borden, this is not a relevant factor in determining
the coercive effect on Gray Accordingly, we find that this statement con-
stituted a threat in violation of Section 8(a)(1) of the Act
HARRY R. HINKES, Trial Examiner: The complaint
herein was issued on October 27, 1966,1 pursuant to a
charge filed on September 19 by the International Union
of District 50, United Mine Workers of America, herein
called the Union, and served upon Ralston Purina Com-
pany, herein called the Respondent or Company, on or
about September 20. The Respondent is alleged to have
engaged in unfair labor practices interfering with,
restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the National Labor
Relations Act, as amended, as well as by the discharge of
and refusal to reinstate an employee because of his union
or concerted activities in violation of Section 8(a)(1) and
(3) of the Act. By answer duly filed, Respondent admitted
the jurisdictional allegations of the complaint but denied
all other allegations.
A hearing was held before me at Salem, Indiana, on
January 12 and 13, 1967, at which all parties were
represented and were afforded full opportunity to par-
ticipate, examine witnesses, and adduce relevant
evidence. At the hearing Respondent further admitted the
supervisory status of the two employees so designated in
the complaint. Briefs have been filed by the General
Counsel and Respondent and have been given careful
consideration by me. Upon the entire record in this case,
I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Missouri corporation with places of
business at Corydon and Pekin, Indiana, and is engaged
in the manufacturing, sale, and distribution of food com-
modities. During the 12 months preceding the issuance of
the complaint, Respondent shipped from its Indiana
facilities to points outside the State of Indiana and had
delivered to its Indiana facilities from States other than
the State of Indiana goods and materials valued in excess
of $50,000. The complaint alleges, Respondent's answer
admits, and I find that the Respondent is now and has
been at all times material herein an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent's answer admits,
and I find that the Union is now and has been at all times
material herein a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Respondent's Operations
Respondent raises chickens for breeding purposes, for
sale as poultry meat, and for commercial egg production.
It maintains a hatchery at Pekin, Indiana, and a
processing plant at Corydon, Indiana. Some of the fowl
are raised on company-owned farms by employees of
I All dates hereafter are 1966 unless otherwise noted
166 NLRB No. 46
RALSTON PURINA COMPANY 567
Respondent and the remainder are raised by independent
farmers under contract to the Respondent.
The Pekin hatchery has 8 to 10 employees who per-
form duties such as grading, checking, cleaning, and
transferring eggs in the hatchery. There is a 3-member de-
beaking crew that de-beaks chickens, an 8- to 10-
member day service crew that vaccinates chickens and
cleans coops, 3 hatchery truckdrivers who pick up eggs
at the farms and bring them to the hatchery, and a spray
truck driver who sprays chicken houses with disinfec-
tants and insecticides.
In addition to the above, there are six bulk-feed
truckdrivers who work out of Pekin and are engaged sole-
ly in the transportation of feed from the Respondent's
Louisville, Kentucky, mill to various flocks on both com-
pany-owned and independent farms. These bulk-feed
drivers are dispatched out of a building that is on the same
premises as the hatchery, but a separate building not con-
nected with the hatchery.
Besides the processing plant in Corydon, Indiana, there
are chicken catchers and about seven live-haul drivers
who operate out of Corydon. The former catch hens and
load them on trucks to be taken to the processing plant
and the latter drive the trucks transporting these hens
from the farms to the processing plant. There appears to
be little contact between the live-haul drivers operating
out of Corydon and the bulk-feed drivers working out of
Pekin.
B. The Organizational Campaigns
In the first part of August 1966, Sam Anderson, a live-
haul driver, contacted Leo Duty, International represent-
ative of District 50, United Mine Workers of America,
about organizing the live-haul drivers at Corydon, Indi-
ana. Anderson put Duty in contact with the other live-
haul drivers and a meeting was held at the Hoosier
Kitchen at New Salisbury, Indiana, during which the at-
tending live-haul drivers signed authorization cards. On
or about August 17, 1966, the Union sent Respondent a
letter requesting recognition for the live-haul drivers at
Corydon , Indiana.
Anderson then gave authorization cards to Terrence
Loftus (the employee allegedly discharged in violation of
Section 8(a)(3) of the Act) and John Porter, bulk-feed
drivers working out of the Pekin facilities of the Respond-
ent. On September 4 Porter signed the authorization
card and on September 6 he and Duty visited Loftus and
Loftus signed an authorization card. These signings took
place at the homes of the employees. Loftus in turn saw
bulk-feed driver Bierly at the latter's home and had him
sign an authorization card on September 8. That same
evening Duty gave Porter and Loftus some union badges.
These badges were circular, about 1-1/2 inches in diame-
ter, and contained the following language: "I'M A
UNION MEMBER-INTERNATIONAL UNION
OF DIST. 50, U.M.W.A.-ARE ? YOU." Loftus
pinned a badge over the watch pocket of his trousers.
The next day, September 9, Loftus approached bulk-
feed driver Ray while the two were at the Louisville
plant of the Respondent waiting to have their trucks
loaded. Ray signed an authorization card while standing
at the side of his truck. Loftus testified that there were
"quite a few people" around at the-time but could not
identify them as persons connected with the Respondent
or outsiders having business there.
Loftus further testified that he drove around with Duty
to sign up bulk-feed drivers; on the evening of September
7 he went with Duty to a restaurant in Borden, Indiana,
to see bulk-feed driver Littrell; on the afternoon of Sep-
tember 8 they went looking for Bierly's truck where the
trucks were parked on company premises; and that even-
ing they went to Bierly's home. Although Loftus placed
the visit to the parking lot during the "afternoon" of the
8th, Duty testified that it was in the "evening" and that it
could have been between 5 and 5:30 p.m.
C. The Alleged 8(a)(1)
The complaint alleges that the Respondent through its
admitted supervisor, Robert Walton, interrogated its em-
ployees concerning union membership and threatened
them with discharge or other reprisals if they assisted the
Union. The only record evidence of these allegations is
the testimony of Elmer Gray and John Porter concerning
statements made by Supervisor Walton. Gray is em-
ployed as a live-haul truckdriver at the Corydon facilities
and had signed a union authorization card. He testified
that on September 9 between 7 and 7:30 p.m. while he
and others were drinking beer at a tavern in Borden, Indi-
ana, Supervisor Walton came in and asked Gray when the
Union was getting in at Corydon, to which Gray replied
that they were to vote on it September 22. Walton
replied, "You ain't going to do nothing but just hurt the
individuals," adding, "There will be a meter put in the
trucks so you won't be allowed to stop for a hour and a
half or 2 hours at Pekin with a load of chickens." Walton
also said, "Sam Anderson better watch hisself. He got in
trouble down at the Borden Cabinet Factory." It appears
that Anderson had formerly worked for a Borden cabinet
factory and had testified at an NLRB hearing involving
that employer. Anderson, however, testified that he never
had trouble there, had voluntarily left them, and had been
asked several times to return. Gray further testified that
shortly after Walton's remark to him he noticed a
speedometer at the Corydon office.
Porter testified that on or about September 12, while
he was at a Pekin restaurant, Supervisor Walton ap-
proached him and asked him, "Where did you get that
[union] badge? Did you go to the zoo or something?"
Walton admitted having a conversation with Gray at
the Borden tavern but stated that the main thing was a
discussion about union activities at the coal mines and
that he agreed with Gray who allegedly said he, Gray,
was against it. Walton did not specifically deny the state-
ments attributed to him by Gray in the latter's testimony
nor was he asked about it. I credit Gray's version of this
conversation because I think it unlikely that Gray would
initiate a conversation about union activities with one
whom he recognized as a supervisor. Moreover, I find it
hard to believe that Gray would utter antiunion senti-
ments soon after signing an authorization card. I also
credit the testimony of Porter which was uncontradicted.
D. The Alleged 8(a)(3)
The complaint charges the Respondent with the unlaw-
ful discharge of Terry Loftus, a bulk-feed truckdriver
working out of the Pekin facility.
Loftus came to work shortly before 6 a .m. on Sep-
tember 9. After fueling his truck, he went to a restaurant
for coffee where he found Merle Hoseapple. Loftus asked
Hoseapple about a job for a friend to which Hoseapple
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied that he had nothing to do with the trucks but was
in charge of the hatchery . Loftus was wearing his union
badge during this conversation . Loftus was unable to
state positively that Hoseapple saw the badge since he
did not check to see if it was visible. Moreover, he may
have worn a sweater at the time which may have covered
it. Neither man made any reference to the union badge.
With respect to Hoseapple , evidence on behalf of the
Respondent indicates that he has no authority to
discipline , keeps no record on his fellow employees, is
carried on the company payrolls as a "hatchery em-
ployee," and does the same type of work as his fellow em-
ployees Prior to becoming a night -hatchery employee in
the spring of 1966 , he had been a supervisor for the
Respondent in charge of the live - haul drivers in Corydon.
In the latter position he was paid on a salary basis. At all
times material herein , however, he was not a supervisor
of live -haul drivers but a night -hatchery employee.
Nevertheless , he was kept on the same salary as before.
The other hatchery employees, however, punch the
timeclock and earn between $ 1 45 and $ 1.65 per hour.
Hatchery Manager Eubanks works during the day and
spends an average of 4 to 6 hours per week in the
hatchery at night . The night shift works 84 hours per
week . For the 78 to 80 hours during the week that Eu-
banks is not at the hatchery during the night shift,
Hoseapple tells that hatchery employees what to do, ac-
cording to Respondent ' s general manager , Watson, and
has the authority to tell them what to do His instructions
to the other hatchery employees, however, are described
as casual and his duties not unlike those of the other
hatchery employees The employees have been in-
structed to report to Hoseapple in case of an emergency.
Hoseapple is admitted to be responsible for maintaining
order during the night shift and consults with the hatchery
manager on discipline.
After speaking to Hoseapple , Loftus drove to
Louisville to pick up his first load of feed While there, he
got employee Ray to sign a union card , as mentioned
earlier. Loftus then delivered his first load of feed, came
back to Louisville for a second load, and drove to a farm
managed by Don Roberts . He had unloaded about a ton
of feed when the delivery mechanism of the truck,
referred to as an auger or stinger , jammed Both he and
Roberts then tried to correct the difficulty but were un-
successful. Loftus then called Supervisor Coates on the
two-way radio. It was then around 5 p m Loftus ex-
plained that the auger had jammed and that he could not
get it working. Coates instructed him to bring the truck
into Pekin and have it fixed According to Loftus, Coates
also told him that if the mechanic could not fix it that
night , he could deliver the load the next morning Coates,
however, denies any such instruction According to
Coates, he simply assumed that the mechanic would free
the auger quickly and that Loftus would finish the
delivery the same night.
Coates then went home around 5 15 p m , having slated
Loftus to work on the following morning Loftus in the
meantime drove the truck back to the plant where it was
inspected by the mechanic who told Loftus that the auger
could not be fixed for some time Loftus then replied, "I
don't give a damn if you don't get it fixed until the middle
of next week," and left the plant
About 9 p.m. Coates was called by a serviceman of the
Respondent who handled the account of the farmer who
had failed to get a delivery of feed as the result of the
auger breakdown . The serviceman told Coates that the
farmer 's flock was out of feed . About the same time the
mechanic called to tell that Loftus' auger could not be
fixed and that the truck was parked at the plant loaded
with feed . Coates then returned to the plant and called
another driver , Littrell, to come in and get the feed out of
Loftus' truck by means of bulk vaccum. Littrell worked
with Coates transferring the feed to another truck and
then delivering the feed to the farmer who needed it. This
work was not finished until about 2 a.m. the following
morning, September 10. When Coates returned to the
plant, he left a note for Loftus to see him in the morning.
Loftus came to work on September 10 about 8 a.m.
Finding the note from Coates, he waited around until
about 10 a.m. when he went to Coates' office. There he
was asked by Coates what had happened. When Loftus
said he did not know , Coates said "You must have bent
it or damaged it," adding that " there were wood shavings
on the side of the auger ." Thereupon , according to Lof-
tus, Coates said, "We can't have that kind of thing. I have
been told to let you go." Loftus said , "You mean I am
fired?" Coates replied, "That's right." Coates testified he
told Loftus that since Loftus would not say anything
about what had happened and since the damage that
resulted was quite expensive , he was not the kind of em-
ployee that the Respondent wanted and that Coates had
"no other thing to do but to discharge " him. Loftus then
left but returned some 20 minutes later and asked for rein-
statement . He told Coates the Company had no grounds
to fire him and that he was going to notify the National
Labor Relations Board, to which Coates replied, "The
Union has nothing to with this ." During this second con-
versation , Loftus was wearing a union badge on his watch
pocket , but no reference was made to it by either of the
men. Coates denied seeing the union button but Loftus
testified that he made sure his badge was visible
The record further discloses that the Respondent ex-
ecuted a notice of removal form on Loftus , dated Sep-
tember 12, in which the reason for the discharge given
was "unable to perform the work satisfactorily ." In his
testimony, however, Coates stated that Loftus was fired
for lying about the extent of the damage to the auger and
for destruction of company property As respects the
failure of Loftus to deliver the feed, it appears that Coates
expected Loftus to describe the damage to the auger suffi-
ciently to put Coates on notice that the load could not be
delivered that night. This Loftus did not do by merely
telling Coates that the auger was jammed. As respects the
destruction of company property, it appears that other
employees had sustained serious damage to their trucks
and equipment in the past and around the same time,
without incurring any disciplinary action . According to
Coates, however, the other drivers did not attempt to
conceal the extent and nature of the damage I conclude
and find that Loftus was discharged because Supervisor
Coates was displeased with the way Loftus handled the
auger breakdown and specifically with Loftus' failure to
report the seriousness of the breakdown so as to have
enabled Coates to take care of the farmer's flock without
requiring Coates to return to the plant and work until 2
a.m. to avoid serious loss.
E Conclusions
1. The alleged 8(a)(1)
As noted previously the record discloses only two in-
stances of alleged 8(a)(1) behavior The first , which oc-
RALSTON PURINA COMPANY 569
curred on September 9 in Borden, Indiana, where Super-
visor Walton told employee Gray of plans to install me-
ters on trucks, was a clear threat to make working condi-
tions less favorable for the drivers and was related to the
union activities at Corydon. It needs no citation of
authority to conclude that it constituted an interference
with the rights of employees to engage in concerted ac-
tivities as guaranteed in Section 7 of the Act and was a
violation, therefore, of Section 8(a)(1). I cannot, however,
reach the same conclusion with respect to Walton's other
observation concerning employee Anderson's "trouble"
at the Borden Cabinet Factory. Walton did not specify
the nature of Anderson's "trouble" and Anderson, him-
self, testified that he had no trouble at that factory. I fail
to see how Walton's remark would have any interfering,
coercive, or restraining effect upon the rights of Respond-
ent's employees to engage in concerted activities.
Similarly, the second incident where Supervisor Walton,
on September 12, asked employee Porter where he got
the union badge-at the zoo or something -carries with
it no threat, restraint, or other interference with an em-
ployee right. At the most it is merely derisive. Derision is
not necessarily synonymous with coercion.
2. The alleged 8(a)(3)
Counsel for the General Counsel argues that the
discharge of Loftus violated Section 8(a)(3) of the Act.
He cites the union activity of the dischargee and his wear-
ing a union badge, the antiunion utterances of Supervisor
Walton, and the shifting reasons advanced by the
Respondent for the discharge. I conclude, nevertheless,
that General Counsel has not sustained his burden of
proving that the discharge was motivated by union
animus on the part of Respondent.
First, as respects the union activity of Loftus, this ac-
tivity was not "great" as suggested by the General Coun-
sel. Loftus signed up employee Bierly and employee Ray.
In addition, he drove around with the union representa-
tive and wore a union button for 2 days before his
discharge. This activity, which is all claimed by him or the
General Counsel, is hardly "great." Nor does the wearing
of a badge for 2 days lend much additional weight to the
General Counsel's argument of great activity.
The antiunion utterances of Supervisor Walton are also
of a minimal character. I have found that only one such
statement was a violation of the Act. It is significant that
that statement was made once and only to one employee.
Moreover, that employee was not from the Pekin facility
but from the Corydon facility. As for Walton's remark to
Porter about the badge, it should be noted that it occurred
2 days after the Loftus discharge and does not indicate
union animus on the part of the Respondent at or prior to
the discharge.
Perhaps the strongest argument of the General Counsel
involves the inconsistency of Respondent's explanation
for the discharge of Loftus. Certainly the differing causes
given for the discharge by Coates and the somewhat in-
consistent, if not contradictory, reason contained on the
notice of removal form raises some doubt as to the real
reason for the discharge. This doubt is fortified by the fact
that other drivers guilty of a similar property damage
were not reprimanded, let alone discharged. Such incon-
sistency coupled with union animus on the part of
Respondent, although not extensive in this case, could
lead to a conclusion that the discharge of Loftus was
motivated by antiunion reasons, provided, however, that
Respondent is found to have known of Loftus' union ac-
tivities. It is at this point precisely that the General Coun-
sel's argument fails.
There is no direct affirmative evidence that the
Respondent knew of Loftus' union activities. General
Counsel argues, however, that the Respondent's
knowledge can properly be inferred. He cites as a circum-
stance "Loftus' open activity on Respondent's
premises." The record, however, does not support the ar-
gument. Loftus got his union card at Porter's home and
visited Bierly at Bierly's home. Neither of these events
took place on company premises. He secured Ray's
signature at Respondent's Louisville mill but was unable
to identify any of the people present as being connected
with the Respondent in any way and admitted that such
observers may have been merely local citzens. The only
time Loftus accompanied a union representative on the
Pekin premises was when he and Duty went looking for
Bierly. Even then, however, there is no suggestion that
anyone saw him. In fact, employee Littrell, having first
testified on behalf of the General Counsel, was recalled
by the Respondent and testified that he had never heard
of Loftus driving around with the union representative.
Of course, wearing a union badge could convey
knowledge of union activity to an employer. In this in-
stance, however, it should be noted that Loftus put on the
union badge on the evening of September 8 when he was
off company premises. Thereafter he wore the union
badge on the watch pocket of his trousers when he re-
ported to work on September 9 and 10. There is no direct
affirmative evidence that anyone saw Loftus wearing the
union button nor can I infer that result. It is true that he
wore the union button when he spoke to Merle Hoseap-
ple on the morning of September 9. General Counsel ar-
gues that Hoseapple must have seen Loftus wearing the
union button and that his knowledge may be imputed to
the Respondent because Hoseapple was a supervisor. I
do not find Hoseapple's status as a supervisor clearly
established. The Act defines a supervisor as:
. any individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off, re-
call, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to
adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent
judgment.
The Board has ruled that an individual to be a supervisor
within the meaning of the Act need have only one of the
indicia of a supervisor enumerated above. Research
Designing Service, Inc., 141 NLRB 211 But that
authority cannot be of a "merely routine or clerical na-
ture." Here the evidence suggests that Hoseapple's as-
signment of work to the other hatchery employees did not
require the use of independent judgment.
Assuming, arguendo, that it did and that, therefore,
Hoseapple was a supervisor within the meaning of the
Act, I cannot conclude that he must have seen Loftus
wearing the union button. There is no direct affirmative
evidence that he saw it and Loftus testified that he did not
check to see if the button was visible. Considering the
fact that Loftus often wore a sweater which could have
concealed the union button plus the fact that neither of
the men made any reference to the union badge during
their conversation, I conclude that Hoseapple did not
notice it.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Similarly, there is nothing in the record to indicate that
anyone noticed Loftus wearing the union button
thereafter on September 9 or 10 When he went to
Coates' office on September 10 in response to the note
Coates had left for him, although he was wearing the
union button there is no basis for assuming that Coates
saw it. It was only after his discharge, when Loftus
returned to talk to Coates, that Loftus stated he made
sure the union button was visible. It was then that Coates
told him the Union had nothing to do with discharge. It
may be concluded therefore that Coates, and therefore
the Respondent, knew of Loftus' union activities after
Loftus was discharged when Coates was visited the
second time for an explanation of the discharge. This,
however, sheds no light on the issue of whether the
Respondent knew of the union activities of Loftus at the
time of the discharge or prior thereto
Finally, counsel for the General Counsel argues that
knowledge may be inferred from the smallness of
Respondent's operations. Smallness of operations has
been cited as a basis for inferring knowledge of union ac-
tivities on the part of an employer, Quest-Shon Mark
Brassiere Co., Inc., 80 NLRB 1149. This holding was ex-
plicated by the Board in Hadley Manufacturing Corpora-
tion , 108 NLRB 1641, 1650
However, the mere fact that Respondent's plant is of
a small size, does not permit a finding that Respon-
dent had knowledge of the union activities of specific
employees, absent supporting evidence that the
union activities were earned on in such a manner, or
at times that in the normal course of events, Re-
spondent must have noticed them. [Emphasis
supplied.]
The size of the plant therefore is only one circumstance
or factor which is to be considered in the resolution of in-
ference of company knowledge Considering the minimal
nature of Respondent's 8(a)(1) behavior, I cannot con-
clude, despite the smallness of the operation, that the
Respondent was aware of union activity at the Pekin
facility. It was, of course, aware of union activity at the
Corydon facility but this was the subject of an entirely
separate campaign separately handled by the Union.
There is no basis for assuming that because of union ac-
tivities at one facility, similar activities were going on at
another facility, particularly when there is little intermin-
gling of employees between the two facilities and no
record evidence of knowledge of the union activities of
the live-haul drivers at Corydon on the part of Pekin bulk-
feed drivers.
Counsel for the General Counsel has cited two cases in
support of his position. The first is Angwell Curtain Com-
pany, Inc. v. N.L.R.B., 192 F 2d 899, where company
knowledge of union activities was inferred in the "small
plant in a relatively small community " In that case,
although company officials denied knowing of any union
activity, there had been rumors of union activity
throughout the plant for at least a month, the president of
the company had boasted that he knew the people and
their backgrounds to a minute detail and there was
reference to the union during the discharge interview.
Moreover, the president of the company had interviewed
each employee separately to explain the company's op-
position to the union after the discharge Here, however,
there is no evidence of any antiunion attitude on the part
of the Respondent after the discharge of Loftus except
Walton's remark about getting a union button at the zoo,
and no reference to the Union was made by Loftus or
management representatives prior to the discharge.
The second case cited by counsel for the General
Counsel is even more to the point. In N.L.R.B. v. Malone
Knitting Company, and N.L.R.B. v. Joseph Antell, Inc.,
358 F.2d 880, the court dismissed the Antell case for
lack of evidence of company knowledge of union activi-
ties:
The smallness of the plant, or staff, may be material,
but only to the extent that it may be shown to have
made it likely that the employer had observed the ac-
tivity in question ... This can have no application
to an off-hour, off-the-premises, meeting ....
[Emphasis supplied.]
In Malone Knitting Company, the Respondent was
shown to have given a reason inconsistent with its previ-
ous practice against its apparent interest and inconsistent
with its subsequent actions which is not unlike the situa-
tion here . In addition , as in this case , there was no affirm-
ative evidence that management saw the employee in
his union activity. In Malone, however, the employee ac-
tivity took place openly in the plant during business
hours. That fact, coupled with affirmative proof that the
employer's reason for the discharge was false, the court
found gave rise to an inference that some other reason
was being concealed Furthermore, with independent
evidence of the employer's union animus which the
discharge would gratify, the court concluded that it was
a fair inference that this was the true reason for the
discharge. Here, however, the facts are quite unlike those
in Malone Knitting. Loftus' union activity was not
"openly in the plant" nor was it "during business hours."
The independent evidence of union animus on the part of
the Respondent here is only slight and involves a different
facility being organized independently of the Pekin facili-
ty, and having no necessary or actual connection with it.
The discharge of Loftus could not "gratify" such union
animus directed at the Corydon live-haul drivers. See also
Ventre Packing Co., Inc., 163 NLRB 540, where the
Board again inferred company knowledge of union activi-
ties from the small size of the employer's plant, but
where, in addition, the employer had engaged in
"widespread unlawful interrogation of employees and
other unfair labor practices," circumstances which are
absent here.
I conclude, therefore, that counsel for the General
Counsel has not sustained the burden of proving
knowledge of union activity on the part of Respondent
prior to the discharge of Loftus, without which, proof of
a discriminatory discharge for union activity is lacking. I
shall therefore recommend dismissal of the 8(a)(3) allega-
tion.
THE REMEDY
Having found that Respondent engaged in an unfair
labor practice when Supervisor Walton told an employee
of plans to install meters on the trucks, I shall recommend
that it cease and desist from such practices or any like or
related practice and take certain affirmative action to ef-
fectuate the policies of the Act. I shall further recommend
that in all other respects the complaint be dismissed. The
fact, however, that Respondent has not committed other
unfair labor practices is "hardly a reason for denying an
effective remedy for the unfair labor practices it did com-
mit," American FireApparatus Co., 160 N LRB 1318.
On the basis of the foregoing findings of fact and con-
clusions, I recommend that the Board issue the following-
RALSTON PURINA COMPANY
ORDER
Ralston Purina Company , Corydon and Pekin, Indi-
ana, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening to change the terms or conditions of
employment as a result of unionization.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
right to self-organization , to form , join , or assist the
Union or any other labor organization , to bargain collec-
tively through representatives of their own choosing, or
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from many or all such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at its place in Corydon and Pekin , Indiana, co-
pies of the attached notice marked "Appendix." 2 Copies
of said notice, to be furnished by the Regional Director
for Region 25, after being duly signed by the Respond-
ent's representative , shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(b) Notify the Regional Director for Region 25, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.3
IT IS FURTHER RECOMMENDED that in all other respects
the complaint be and hereby is dismissed.
I In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
3 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director,
in writing, within to days from the date of this Order , what steps Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
571
Pursuant to the Recommeded Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT threaten to change any term or con-
dition of your work as a result of unionization at our
plants.
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce our employees in the ex-
ercise of their right to self-organization , to form, join,
or assist the Union or any other labor organization,
to bargain collectively through representatives of
their own choosing , or to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any
or all such activities.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of the In-
ternational Union of District 50, United Mine Workers
of America or any other labor organization.
Dated By
RALSTON PURINA COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office , 614 ISTA
Center, 150 West Market Street , Indianapolis, Indiana
46204, Telephone 63 3-8921.