Ripon Foods, Inc.

National Labor Relations Board - Board Decisions

Jul 8, 1957

118 N.L.R.B. 536 (N.L.R.B. 1957)

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apprentices ; all technical , clerical , and professional employees ; all trainees preparing
for jobs not included in the production ` and maintenance unit, all plant protection
employees , and all supervisors as defined in the National Labor Relations Act,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (.b) of the Act.
5. International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, AFL-CIO, was on March 26, 1956, and at all .times since has
been the exclusive representative within the meaning of Section 9 (a). of the Act,. of
all employees in the aforesaid unit for the purposes of collective bargaining.
6. By refusing on March 15 and 26 , 1956, to furnish information and data con-
cerning job evaluations and time studies to the respective Unions and their agents,
thereby refusing to bargain collectively with said Unions as the exclusive - bargaining
representatives of the employees in the respective appropriate units , J. I. Case
Company (Rock Island , Illinois ) and J . I. Case Company (Bettendorf Works) have
engaged in and are engaging in unfair labor practices within the meaning of Section
8 (a) (5) of the Act.
7. By such refusal to bargain , thereby interfering with, restraining , and coercing
its employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
8. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication:]
Ripon Foods, Inc. and Joseph Pfeiffer. Case No. 13-CA-$67.
July 8,1957
DECISION AND ORDER
On January 7, 1957, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had not engaged in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) of the Act. Accordingly,
he recommended that the complaint be dismissed in its entirety.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
finding that it was engaged in' commerce within the meaning of
Section 2 (6) and (7) of the Act.
The Board 1 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 hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner .2
[The Board dismissed the complaint.]
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Chairman Leedom and
Members Murdock and Jenkins].
2 As no exceptions have been filed to the Trial Examiner 's dismissal of the unfair labor
practices on the merits, we adopt his findings pro forma. With respect to the Respond-
ent's exceptions to the assertion of jurisdiction herein , we find, contrary to the Respond-
ent's contention , that it would . effectuate the policies of the Act to assert jurisdiction
herein on the basis of the totality of the Respondent's operations . The T. H. Rogers
Lumber Company, 117 NLRB 1732.
118 NLRB No. 62.
RIPON FOODS, INC.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
537
STATEMENT OF THE CASE
This is a proceeding under Section 10 (b) of the National Labor Relations Act,
as amended.'
On September 24, 1956, the General Counsel of the National Labor Relations
Board caused the complaint herein to be signed and issued by the Regional Director
for the Thirteenth Region. An answer to the complaint was filed on behalf of
Ripon Foods, Inc., on October 1, 1956.2
A charge previously filed by Joseph Pfeiffer, for himself and Local No. 344, on
July 2, 1956, asserted violations of Section 8 (a) (1) and (3) of the Act, setting forth
that:
On June 22 , 1955, [1956 ] the Employer discharged without cause Joseph
Pfeiffer of 2204 South 80th Street. Mr . Pfeiffer was a truck driver for the
Employer. He had applied for membership in Bakery Sales Drivers, Local
344, International Brotherhood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America, AFL-CIO. Local 344, on June 8, had written the Em-
ployer asking for recognition as collective bargaining agent for a unit of truck
drivers and warehousemen. On June 21 , 1956, notice of hearing for a repre-
sentation election was sent to the Employer by the Wisconsin Employment
Relations Board. Discharge of the complainant followed immediately.
The complaint herein alleges, with respect to substantive violations of Section
8 (a) (1) and (3) of the Act, that the Company , "through its officers, agents, and
supervisors ," interfered with , restrained , and coerced , and is interfering with, re-
straining , and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, by (a) on or about June 15, 1956, through a supervisor,
interrogated an employee concerning his union activities ; ( b) on or about the same
day, through a supervisor , threatened an employee that he would never get advance-
ment because of his activities for the Union ; ( c) on or about the same day, by the
same supervisor , threatened an employee with loss of employment because of his
union activities ; ( d) during the week commencing June 18, 1956, by certain named
supervisors , required additional work of employees because of their activities in
the Union ; and (e ) on or about June 22, 1956, by a supervisor , told employees that
due to the Union he would have to be a slave driver and work them twice as hard.
It further is alleged in the complaint that on or about June 22, 1956, the Company
discriminatorily discharged Joseph Pfeiffer , for the reasons that he had engaged in
concerted activities and that he had joined and assisted the Union and that after
that time the Company has at all times failed and refused to reinstate Pfeiffer
because of his membership in and activities on behalf of the Union .3
The Company, in its answer to the complaint, denied that it had or is engaged
in unfair labor practices as charged in the complaint ; asserted that the Company
161 Stat. 136 et seq., 29 U. S. C., Supp. I, See. 141 et seq., hereinafter called the Act.
3 The General Counsel of the National Labor Relations Board or his counsel may be
referred to herein as the General Counsel, the Regional Director for the Thirteenth
Region as the Regional Director, and Ripon Foods, Inc., as the Company or the Respond-
ent. Bakery Sales Drivers Union, Local 344, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, may be
hereinafter referred to as Local 344.
3 The following provisions of the Act are relevant hereto :
RIGHTS OF EMPLOYEES
SEC. 7. Employees shall have the right to self -organization , to form, join , or assist
labor organizations , to bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection. . . .
UNFAIR LABOR PRACTICES
SEc. 8. (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7 ;
$ r w s s • s
(3) by discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any labor
organization. . . .
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged Pfeiffer for good and lawful cause and denied that his dismissal had
anything to do with his joining or assisting a union. In its answer , for a further
affirmative defense, the Company
alleges that the matters with which the complaint is concerned involve only
its sales branch in Milwaukee , Wisconsin , and denies that any of its acts in
connection with its sales in Milwaukee , Wisconsin , constitute engaging in
commerce or affects or has affected commerce within the meaning of Section
2 (6) and (7) of the National Labor Relations Act.
This case came on to be heard before the Trial Examiner , pursuant to notice of
hearing, at Milwaukee , Wisconsin , on October 30, 1956. The hearing was closed
on November 1, 1956. At the hearing, the General Counsel and the Respondent
Company were represented by counsel . The Union , on motion made at the hearing,
was permitted to intervene, and was represented by counsel. The Charging Party
was present, and was represented by counsel. Full opportunity to be heard, to
examine and cross-examine witnesses , to argue orally upon the record and to file
briefs, proposed findings of fact, and conclusions of law, was afforded each party.
Each of counsel for the parties presented argument after all evidence had been
taken at the hearing. Briefs have been submitted for the Company and the General
Counsel. Motions to dismiss and to strike , made at the hearing on behalf of the
Respondent , are disposed of below.
Upon the entire record in this case, from his observation of the witnesses, and
upon careful consideration , the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT , RIPON FOODS, INC.
The Respondent , Ripon Foods, Inc ., is, and at all times material hereto has been.
a corporation duly organized under and existing by virtue of the laws of the State
of Wisconsin , having a manufacturing plant in Ripon , Wisconsin , where it is now
and has been , during the times mentioned herein, engaged in the manufacture and
sale of bakery products ( cookies ). The Respondent Company in the course, c'n-
duct, and operation of its business causes, and at all times material to the issues
in this case has continuously caused, large quantities of raw materials used by it in
the manufacture of bakery products to be purchased and transported in interstate
commerce to its Ripon, Wisconsin , plant through the States of the United States
other than the State of Wisconsin . During the calendar year 1955 , the value of
materials so purchased and shipped by the Respondent to its plant at Ripon, Wis
consin , from points outside the State of Wisconsin was in excess of $500 , 000. This
Respondent , in the course , conduct, and operation of its Ripon plant causes, and
at all times material to the issues in this case has continuously caused , large quan-
tities of bakery products to be shipped and transported in interstate commerce
into and through States of the United States other than the State of Wisconsin.
During the calendar year 1955, the value of finished products sold and transported
by the Respondent from Ripon , Wisconsin , to points outside of the State of Wis-
consin was in excess of $1,000,000.
The Respondent Company operates a sales branch office in Milwaukee , Wisconsin,
which, during the calendar year 1955, sold bakery products (cookies) supplied to
this branch by the Ripon plant of the Company in Ripon, Wisconsin , which were
sold to retail or independent grocery outlets in the Milwaukee , Wisconsin, area for
approximately $ 265,000. The total volume of sales of the Milwaukee sales branch
from January 1 , 1956, to the date of the hearing herein, to retail outlets, mostly
independent grocery stores in the Milwaukee area, amounted in value to approxi-
mately $282,000.
At the hearing, counsel for the Company moved to dismiss the complaint
on the ground that the Board, if it were to assume jurisdiction herein, would
decide that the relief or order asked for by the General Counsel from the Board
would not effectuate the policies of the Act.
In support of its position that the Board should not assume jurisdiction in this
case because to do so would not effectuate the policies of the Act, the Respondent
urges most vigorously that the operations of the Company 's Milwaukee sales branch
are entirely local and have little if any effect on interstate commerce , and that
the General Counsel has failed to produce any evidence that the Milwaukee branch
of the Company is engaged in commerce or activities affecting commerce . On behalf
of the Company it is argued that:
Despite his frequent assertions of "total operation " and "integration" the fact
is that the General Counsel has produced no evidence whatsoever of any
RIPON FOODS, INC. 539
integration between the Milwaukee branch and the main business of Ripon
Foods, and he has not rebutted the evidence produced by the Respondent
which clearly shows that the Milwaukee branch is a separate, independent
operation.
The General Counsel argues just as forcibly that:
. . . The proper jurisdictional yardstick for a single employer entity is the
totality of its commercial operations. In view of the fact that there is only
one corporate entity herein, the essence of the General Counsel's argument
is that the warehousing and selling activities of Respondent's branch office
is as inextricably a part of this total operation as the operation of its cookie
processing plant at Ripon.
If the argument of the General Counsel is conceded, the Board would follow
its own jurisdictional standards, since it is undisputed upon the record that Ripon
Foods, Inc., purchased goods and materials from outstate and had shipped or
caused to be shipped to its Ripon, Wisconsin plant, raw products valued in excess
of $500,000 during the year 1955; that during the same year the Company shipped
from Ripon to points outside the State products valued at an excess of $1,000,000.
In the year 1955, it is agreed, the Milwaukee branch sold cookies supplied to it
by the Company's Ripon plant valued by sale at $265,000, these sales being made
within a 30-mile radius in the Milwaukee area. Thus, the direct inflow standard
of the Board is met, and the direct outflow standard is met, according to the
revision of standards announced by the Board in 1954; and, if the Company as
a whole is taken as an integral operation, these standards are fully satisfied and
the Board will retain jurisdiction. Too, the Ripon plant, as such, in its operation
is within these jurisdiction standards 4
If, on the other hand, the argument of the Respondent is adopted certainly the
Board would find that the operations of the Milwaukee branch are purely local
in character, to the extent that the exercise of jurisdiction herein would not effectuate
the policies of the Act under the jurisdictional standards of the Board.
On this question of jurisdiction, there is another area of fact where the parties
are in substantial agreement. The Milwaukee branch purchases no goods or products
used in the manufacture of cookies, does no manufacturing, and functions as a
sales outlet only. In addition to the branch manager, who is responsible for the
operations of the warehouse and sales department of the branch, there is an assistant
manager, a warehouse foreman, an office manager, 2 delivery men, 3 driver-
salesmen, and 5 advance salesmen. Each one of these employees receives his
compensation by bank check from the Ripon office of the Company. The immedi-
ate supervisor of the Milwaukee branch manager is the sales manager for the
Company. Under the latter the direction of general sales policy is made and
prices are set. The branch manager reports weekly to the sales manager on total
operations and the activities and number of employees and so on, and frequently
confers with the sales manager. Although prices are set by the sales manager
in Ripon, the branch manager has full authority in the operation of the branch
to vary prices according to his judgment, in the event he is over-supplied with
certain items, or for other reasons. The branch manager handles employee and
personnel problems directly although he may, at times, confer with the Ripon office
on more important matters. The cookies manufactured at Ripon are shipped
to the Milwaukee branch by order or requisition made from the Milwaukee branch
to the Ripon plant, deliveries being made regularly at least once a week by trucks
owned by the Company; at times, additional deliveries are made when goods have
been requisitioned by the branch. The goods delivered from Ripon to Milwaukee
are delivered to a warehouse maintained by or for the branch in Milwaukee. The
Milwaukee branch sells and distributes cookies to independent grocers and other
retail outlets solely within the 30-mile Milwaukee area and within the State of
Wisconsin. This is the only local warehouse owned by the Company.
Evidence was introduced by the Company, uncontradicted upon the record, that
the Milwaukee branch customers are its own and that all cookies delivered to its
customers are delivered from the -branch; that the credit extended to branch
customers is determined by the branch, although on occasions the branch manager
confers with the credit manager at Ripon; that statements of account for branch
customers are billed from the branch, and receipts are deposited in a Milwaukee
branch bank account; that the deposits so made are made in the name of the
4 See Nineteenth Annual Report of the Board for the fiscal year ended June 30, 1954,
p. 2. See also Jonesboro Grain Drying Cooperative, 110 NLRB 481-483. And compare
Rogers Bros . Wholesalers, 110 NLRB 604, 605.
,540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company and that the branch manager does not have authority to draw thereon;
he does, however, retain a certain amount of cash on hand for use in connection
with the operations of the branch .5
The Trial Examiner believes that the General Counsel has carried the burden
of proof incident to the showing of Board jurisdiction. It is true that when the
question of jurisdiction is raised, it devolves upon the General Counsel, under
the doctrine of Meyers, et al. v. Bethlehem Ship Building Corp., 89 F. 2d 1000, to
establish jurisdiction. Here, the requirement has been met by a showing that the
Company has the dollar-volume inflow and outflow of purchases and sales, under
the jurisdictional standards of the Board, to bring the Company within the jurisdiction
of the Board and that the Board under these standards, will assert jursidiction.
Remington Rand, 27 NLRB 488, relied upon by the Company, was decided in the
year 1940, some time before the Board established jurisdictional standards and
thereafter revised its earlier standards. The right of the Board to establish its
own jurisdiction within the limits of its ultimate and final jurisdiction, unless arbitrary
or capricious, long since was announced by the Board; its position has not been
upset by overruling authority. The Board, in Breeding Transfer Company, 110
NLRB 493, pointed out that it better effectuates the purposes of the Act, and
promotes the prompt handling of major cases, not to exercise its jurisdiction to
the fullest extent possible under the authority delegated to it by Congress, but
to limit that exercise to enterprises whose operations have, or at which labor disputes
would have a pronounced impact upon the flow of interstate commerce. The
jurisdiction of the Board as announced by it and interpreted and set forth in
Breeding Transfer and Jonesboro Grain Drying Cooperative, supra, are opposed
to the position of the Company herein that this matter should be dismissed for
lack of evidence to sustain the jurisdiction of the Boards
In support of its position that the operations conducted at the Milwaukee branch
are purely local and that a work stoppage therein would in no way affect the op-
erations of the Company at Ripon or affect interstate commerce, the Company relies
upon N. L. R. B. v. Shawnee Milling Company, 184 F. 2d 57 (C. A. 10, 1950). The
facts in that case, however, are different than those here, because there the facts
as stipulated were that the Shawnee Company operated a flour mill and facilities at
Shawnee, Oklahoma, its products being shipped in interstate commerce; that it also
owned a plant at Pauls Valley, Oklahoma, the Pauls Valley Plant being operated by a
local manager who had complete charge of the activities and operations of that plant,
subject only to overall supervision as to policies, including labor policies, by the
officers of Shawnee Company; that the manufacturing processes at the Pauls Valley
Plant were confined to the manufacturing of certain products and that all the raw
materials used were purchased within the State of Oklahoma; that the manufactured
products of the Pauls Valley Plant were sold and distributed exclusively within the
State of Oklahoma; that all purchases of raw materials for use in processing there
and all sales made by the Pauls Valley Plant were made and handled by the office
at Pauls Valley; that during the times material to the incidents in that case, an esti-
mated 1 percent of raw materials used and processed at Pauls Valley originated out-
side the State of Oklahoma, but during normal years no purchases of raw materials
were made by the Pauls Valley Plant outside the State; and that the raw materials
purchased outside the State during normal times were purchased from branch dealers
within the State of Oklahoma. The difference between that case and this one is
distinct-there, the Pauls Valley Plant manufactured and produced on its own,
without regard to the operations of the Shawnee Company, as a manufacturer en-
gaged in interstate commerce, whereas here, the Milwaukee branch is not engaged
in the manufacture of nor does it purchase raw materials, but derives its sale
products entirely from the Ripon plant. The court, in the Shawnee Milling case,
said that the facts in N. L. R. B. v. Santa Cruz Fruit Packing Company, 91 F. 2d
790 (C. A. 9) "are analogous to the facts in this case," and that the court in the Santa
Cruz case had held that the jurisdiction of the Board did not extend to a branch
6 The Company points out that when request was made on June 8, 1956, by Local 344
for a meeting for the purpose of negotiating a contract, the unit designated by Local 344
consisted of "driver salesmen" and that the Union's letter was addressed to the Mil-
waukee branch addressed for the attention of "Mr. Ed Smith, Supervisor, Milwaukee
Agency," and not to the office of the Company in Ripon. The Company suggests that by
sending its letter to the branch manager in Milwaukee, the Union and Pfeiffer recognized
the separate status of autonomy of the Milwaukee branch. The Trial Examiner can
make no finding, on the facts herein, to that effect.
6 Johns-Manville Corporation, 61 NLRB 1, relied upon by the Respondent, was decided
in 1945, before promulgation of standards by the Board first in 1950 and again in 1954.
RIPON FOODS, INC. 541
plant of a corporation engaged solely in intrastate operations, although the cor-
poration was otherwise engaged in interstate business. The court, in Shawnee
Milling, said:
Such cases as Virginia Electric and Power Company v. N. L. R. B., 115 F. 2d
414 (C. A. 4), and N. L. R. B. v. Weyerhaeuser Timber Company, 132 F. 2d
234, 235 (C. A. 9), are distinguishable upon the facts. In both of these cases
it appears from the opinion that the unit under consideration was treated as a
department of the corporation engaged in interstate commerce. It was ac-
cordingly held that the unit under consideration was an integrated part of a
general operation and that disturbance therein would affect commerce.
Finally, counsel for the Company argues that in the constitutional sense , the Board
is without jurisdiction in this case; that no jurisdictional yardstick has been shown
applicable, and consequently there is no reasonable basis upon which to claim any
alleged violation of the Act which would affect interstate commerce. Counsel says
that the decisions in Remington Rand, 27 NLRB 488, and Johns-Manville, 61
NLRB 1, supra, evidence a consistent recognition of the limitation on Federal power
to regulate purely local operation, and therefore, the complaint should be dismissed
for lack of jurisdiction. But these cases no longer are authoritative. See Pedersen
v. N. L. R. B., 234 F. 2d 417 (C. A. 2, 1956); N. L. R. B. v. Newark Morning Ledger
Co., 120 F. 2d 262, 268 (C. A. 3) certiorari denied, 314 U. S. 693. Should the
Board retain jurisdiction herein, it will assert jurisdiction without caprice or without
arbitrary action. (Breeding Transfer Company, 110 NLRB, supra, p. 495). Where
here, as is apparent upon the record, administrative jurisdiction is established under
announced standards, assumption by the Board of statutory and constitutional power
in the exercise of such discretionary functions committed to it by law cannot be
disturbed. See, for example, N. L. R. B. v. Seven-Up Bottling Company of Miami,
Inc., 344 U. S. 344, 348.
"Enterprise," as used in the decisions of the Board where the Board did or did
not assume jurisdiction, is taken by the Trial Examiner to mean in this case that
the Company and its Milwaukee branch constitute a single enterprise. He there-
fore now denies the motion made on behalf of the Respondent Company to dismiss
this case on the grounds first, that for the Board to issue an order herein would not
effectuate the policies of the Act, or second, that there is a lack of jurisdiction of the
Board to decide this case. In Potato Growers Cooperative Company, 115 NLRB
1281, the Board in its Decision and Direction of Election had occasion to consider
the cases relied upon by the Trial Examiner in affirming the jurisdiction of the
Board in the instant case. In that case the Board said (p. 1283):
Consideration of the entirety of an employer's operations is essential to effec-
tuate the policies of the Act which "extends to and was explicitly designed to
regulate not merely interstate transactions, but all activities which in their
totality adversely affect the full flow of interstate commerce," because a labor
dispute in one section of an employer's enterprise affects the operations of other
departments.
The Respondent during the time mentioned herein was, and now is, engaged
in commerce and activities affecting commerce within the meaning of Section 2 (6)
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Bakery Sales Drivers Union , Local 344, affiliated with the International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , AFL-CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNLAWFUL LABOR PRACTICES
Joseph Pfeiffer was hired as a driver on or about March 21. He was interviewed
first by Edward Smith , branch manager at Milwaukee , who selected him from a
number of applicants for a job as driver . The hiring of Pfeiffer by Smith was ap-
proved or confirmed by W. C. Milbrandt, sales manager of the retail division of
the Company . Pfeiffer was hired at a regular monthly rate, his main duties to be
making delivery of cookies on a regularly established route, and also to perform
certain other duties in the branch warehouse which included the handling of goods,
some paperwork , and cleaning chores. At the time of his hire, Pfeiffer expressed
interest in sales; Smith arranged , after Pfeiffer was employed , to let the latter have
sales training 1 day each week . Pfeiffer made satisfactory progress ; on April 13,
he was advised by Milbrandt by letter that Manager Smith and Assistant Manager
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Videgar were pleased with his work and was also told that his salary had been in-
creased by $25 a month. Again, under date of May 22, Milbrandt took occasion to
compliment Pfeiffer on a report submitted by him on new accounts.
On the day Pfeiffer was hired, Smith said he warned Pfeiffer that the Company
would discharge any employee, without prior warning, for drinking on the job, for
dishonesty, or for immorality.
By letter dated June 22 Milbrandt advised Pfeiffer: "This is to confirm your im-
mediate dismissal for drinking on the job.
"Final payroll check through Friday, June 22 enclosed."
On the morning of May 23, Smith was present in the Milwaukee warehouse when
Pfeiffer apparently injured his back while handling cartons of cookies; Pfeiffer then
disclaimed serious injury but on the following day Smith accompanied Pfeiffer to
see a company doctor; on medical advice, apparently, Pfeiffer did little or no work
until the following Monday, May 28. On that Monday morning, Pfeiffer took his
truck out and later telephoned Smith that he was in pain and was unable to work
further that day. Smith sent Videgar out to take over Pfeiffer's truck and finish
his route for the day, and arranged for Pfeiffer to have X-rays taken to determine
the extent of his injury. The doctor subsequently reported to Smith that Pfeiffer
had not suffered any serious injury and was able to continue his duties as driver.
Nevertheless, according to Smith, for the next 2 weeks Pfeiffer was kept in the
warehouse and put on light work while Haggie, the warehouse foreman, took care
of the route normally serviced by Pfeiffer. After the doctor discharged Pfeiffer,
Smith instructed Haggie, the warehouse foreman, to put Pfeiffer back on his
regular duties of delivering bakery products and also to perform the usual warehouse
duties assigned to him.
According to witnesses called by the Company including Smith and Videgar, after
Pfeiffer returned to his ordinary work after his injury he became progressively lax
in his work, his deliveries were made late to stores, and the advance salesman (who
arrived at an outlet in order to service the store) complained that Pfeiffer's deliveries
were late. According to the testimony herein, which is uncontradicted, 3 or
possibly 4 reports of late deliveries were made within the week after Pfeiffer
returned to his regular duties on his truck.
The Company contends that Pfeiffer at the outset of his employment was an
excellent worker, but that after he became interested in the Union his work
deteriorated to the point where he had to be fired-not because of his interest in
the Union, but because he was an unsatisfactory employee. The Company invoked
the "drinking on the job" rule to terminate his employment with it.
Before his employment by the Company, Pfeiffer had been a member of Local
360 of the Teamsters' Union; after his employment by the Company he transferred
to Local 344. One other delivery man was employed by the Company. Donald
Thompson, the other delivery man, took out a membership card in Local 344 about
the time Pfeiffer transferred from Local 360 to Local 344.
Smith received the June 8 letter from the Union on about June 8 or 9; Pfeiffer
informed Smith that the Union had sent the letter; Smith claims that he was
confused during the discussion about the Union because of the use of the word
"driver-salesman" in the letter which did not identify either Pfeiffer or Thompson
(the only two deliverers) or any one other intended by the Union to be one of its
members.
On about June 15 Smith called Thompson into his office to ask him why he had
left his truck loaded and unlocked over night, and at that time Pfeiffer went into
Smith's office and asserted that any discussion with the deliverymen would have to
do with him also; Smith asked Pfeiffer to leave while he was talking to Thompson
and Pfeiffer refused to do so. At that time, it seems, Pfeiffer claimed that Smith
had called Thompson in because of a prejudice of the Company against the Union.
At about this time Smith seems to have made up his mind that he would check
more carefully on deliveries being made by Pfeiffer and Thompson and to take
cognizance of reports which had come to him that Pfeiffer and Thompson were
deserting their routes, that Pfeiffer was parking his truck in areas away from his
route. Pfeiffer at about this time complained to Thomas Haggie, warehouse
foreman, and to Smith that he and Thompson were being discriminated against
because of their activities on behalf of the Union.
On the morning of June 22 Smith was planning on leaving on vacation and
asked Pfeiffer that the latter try to "hold up" his route, and see that there would
be no delay in the making of deliveries. After Pfeiffer left the warehouse Smith
ordered Videgar to go out on delivery and while out check the route which
Pfeiffer was assigned to service. Videgar did go out, found Pfeiffer on the street
RIPON FOODS, INC. 543
making deliveries , and according to Pfeiffer invited him to lunch. Videgar testified
that Pfeiffer suggested a tavern where they could get a fish fry.
Pfeiffer and Videgar, as well as Smith , testified concerning a meeting during a
lunch period on June 22. There is conflict between the testimony of Pfeiffer and
Videgar. In substance Pfeiffer testified that Videgar proposed to him that the
two meet for lunch for the purpose of discussing the Union; that Videgar suggested
the tavern at which they were to meet; and that after they had met Videgar insisted
that Pfeiffer have a beer and ordered one for him, ordering a "shot" for himself.
Pfeiffer said further that Videgar, who had completed his work for the day, insisted
that Pfeiffer have another beer, which he did, and that Videgar had another drink
or two while they were standing there. According to Videgar, he was proceeding
to a certain place where he had a call to make and as he passed an intersection he
saw a Ripon truck; that he pulled over to the curb and Pfeiffer parked his truck
and came over and told Videgar he wanted to talk to him and that they made
arrangements to meet after Videgar had made "a couple calls." Videgar said
that Pfeiffer told him he knew the man in the tavern and that after they had gone
in there, he was told by the bartender that the kitchen would not open until around
4:30 or 5 o'clock; that Pfeiffer said at that point that he was thirsty and Videgar
replied "Okay, I will have a drink." While they were there, according to Videgar,
each one of them had three drinks, Pfeiffer drinking beer and Videgar drinking whiskey
and water. It seems clear enough that Pfeiffer and Videgar were in the tavern for
about 45 minutes, leaving around 1:15 to 1:30 p. m.
While Pfeiffer and Videgar were sitting at the bar in the tavern, Smith, who had
gone out to search for Videgar, saw the two at the bar as he looked through the
outside window of the tavern. Smith did not enter the tavern.
After Videgar returned to his home, he having stopped in the meantime to have
his car serviced, he was informed that Smith had telephoned and requested that
he report back to Smith's office.
According to Smith, he was advised by an advance salesman that Pfeiffer's truck
was parked in a residential district off Pfeiffer's assigned route at about 3:30 p. m.;
and that he had been advised by one of the salesmen that Pfeiffer was late with
his deliveries. It seems clear enough that Pfeiffer returned from his route that
day around 4 or 4:30 p. m.; that upon being called into Smith's office, he told
Smith that he had a very few stops to make after 1 p. m. and admitted to Smith
that he had had a drink of beer. It seems that after Pfeiffer finished his route
deliveries, he had gone to pick up Thompson at a garage where Thompson had
left his truck for repairs. Pfeiffer claimed he had authority to do this; Smith says
that he undertook to pick up Thompson upon his own initiative and not instruction
from Smith.
Videgar reported to Smith at the latter's office and upon being questioned by
Smith admitted that he and Pfeiffer had been in the tavern and that he (Videgar)
had had "a couple of whiskies." When Pfeiffer reported to Smith that afternoon
he was questioned by Smith as to what he was doing in the tavern with Videgar and
why it took him as long as it did to finish making deliveries on his route in the
afternoon. Pfeiffer claimed that he had been held up at one grocery store because
he helped the advance salesman in opening cartons and arranging goods on the
shelves and that he was justified in taking the time he did to finish his afternoon
deliveries. Smith reviewed Pfeiffer's work and his growing laxity in his performance
of his duties, reminded him that he had been told that he would be fired if he were
caught drinking on the job. Smith thereupon called Milbrandt on the telephone,
informed Milbrandt of the happenings of the afternoon and told Milbrandt that
he intended to discharge Pfeiffer. According to Smith, Milbrandt agreed. Smith
also told Milbrandt on the telephone, according to Smith, that he thought Videgar
should be disciplined and he made that recommendation to Milbrandt. Following
Smith's telephone request to Milbrandt, Milbrandt wrote the letter of discharge
advising Pfeiffer of his dismissal and enclosing his final paycheck.
Subsequent to the return of Smith from his vacation, he conferred with Milbrandt
concerning whether or not Videgar should be disciplined. The result was that
Videgar was deprived of his vacation, and required to make strict reports of his
activities while on his job.
It is argued by the General Counsel that the evidence clearly establishes that
Smith, the branch manager, attempted to thwart union organization of h's em-
ployees by threats of discharge, threats of acting as a slave driver, and actual im-
position of additional duties, and therefore a violation of Section 8 (a) (1) is
apparent on the record herein without regard to whether or not the acts of the
Respondent Company constitute violations of Section 8 (a) (3). It is said that the
Respondent Company carried out its threats, in part, by imposing extra duties upon
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union adherents as well as by the discharge of Pfeiffer on June 15, although Smith
instructed Pfeiffer to return to work on the following Monday morning.
The evidence in support of the allegation of the complaint with respect to
threats of discharge, of more severe discipline, and imposition of additional duties
rest mainly upon the testimony of Pfeiffer and,. to some extent the testimony of
Thompson. The Trial Examiner has had the benefit of hearing the testimony of
Pfeiffer and Thompson, as well as the testimony of Smith, and does not believe that
the remarks made by Smith at the various times described in the months of May
and June can be construed to mean that the Respondent through Smith or Haggie,
the foreman, were deliberately intended to threaten or interfere with the rights of
Pfeiffer or Thompson or any other employee to engage in union activity. The claim
of Pfeiffer that he was given extra duties or that other union adherents were given
extra duties, is not proven upon the record; indeed, it appears from the testimony
of other witnesses that it had been a long-established practice at the warehouse for
drivers to be on their routes for approximately 261/2 hours per week and that, being
employed for a 40-hour week, other duties were expected of them in the warehouse.
In considering the question of credibility as between the several witnesses called by
the General Counsel and counsel for the Respondent, the Trial Examiner is of the
opinion that Smith was a straightforward and credible witness; that Videgar, who
obviously was nursing a grievance against the Company for deprivation of his
vacation, nevertheless testified according to his best memory of actual happenings
during these times; and that the testimony of Haggie with respect to the work of
Pfeiffer and Thompson in the warehouse is to be credited.?
The General Counsel argues further that as to the alleged violations of Section
8 (a) (3) of the Act, the evidence shows -that Pfeiffer, a satisfactory employee, was
discharged for drinking with his superior even though that same supervisor
(Videgar) was fully aware that Pfeiffer had additional deliveries to make that
afternoon; and that a further fact which compels the inference of unlawful motivation
for the discharge of Pfeiffer is that the same supervisor experienced disparate treat-
ment, inasmuch as he remained an employee of the Respondent in the identical posi-
tion he had held prior to Pfeiffer's discharge. At the hearing, Smith testified that
at the time he hired Pfeiffer he advised him that he was hired to fill a vacancy
caused by the discharge of a man for drinking on the job. Although, as the
General Counsel points out, the company rule was invoked "as the straw that broke
the camel's back" nevertheless it seems to the Trial Examiner that the Company was
justified in invoking the rule in consideration of the prior performance demonstrated
by Pfeiffer, as proven on the record, after Pfeiffer transferred his membership in
the Union into Local 344. The mere fact that an employee has joined a union
cannot afford him complete immunity for infractions of management rules.
On the facts of the case, and upon his resolution of questions of credibility as
between the several witnesses, the Trial Examiner believes and finds that the Com-
pany, in discharging Pfeiffer, discharged him for cause, and not because of Pfeiffer's
interest in or activities on behalf of the Union. Nor can the Trial Examiner find
that any of the activities of the Respondent in connection with the work of Pfeiffer
can be construed as interference, intimidation, or coercion of any of the other em-
ployees of the Company at the Milwaukee warehouse or elsewhere. There is no
corroboration of Pfeiffer's testimony concerning Smith's inquiry to him concerning
the Union, supposedly made on June 15, when Pfeiffer said that he was dismissed
or discharged but told by Smith to report for work on the following Monday. In
this connection the testimony of Smith is credited and the Trial Examiner cannot
accept the testimony of Pfeiffer.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent, Ripon Foods, Inc., constitute trade, traffic,
and commerce among the several States, within the meaning of Section 2 (6) of
the Act.
7 Haggie testified mainly concerning the work of Pfeiffer before and after his back in-
jury and the resentment of Pfeiffer concerning the instructions of Smith to keep a time
record as to when Pfeiffer and Thompson reported for work each day. To the Trial
Examiner the testimony of Pfeiffer concerning the additional duties imposed upon him
after it became known that he was interested in the Union, cannot be construed by any
stretch of imagination to show discrimination against him or any other employee because
of union activity or membership.
CONSOLIDATED BLENDERS, INC . 545
. 2. Bakery Sales Drivers Union, Local 344, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, is a
labor organization within the meaning of Section 2 (5) of the Act.
3. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (a) (1) and ( 3) of the Act.
[Recommendations omitted from publication.]
Consolidated Blenders, Inc. and Robert L. Kinney, et al., Peti-
tioner and American Federation of Grain Millers , Local No.
178, AFL-CIO. Case No. 17-RD-136. July 8,1957
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before William J. Cassidy,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board' finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner asserts that the Union is no longer the repre-
sentative of certain employees of the Employer as defined in Section
9 (a) of the Act.
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Union contends that the petition should be dismissed on the
ground that the Employer sponsored this decertification petition.
The Union was certified February 29, 1956. Several months of
fruitless bargaining followed after which no efforts were made at
further negotiations. On or about February 1957 Plant Superin-
tendent Newsome attended a meeting of the Company's board of
directors at which he was asked what was to be done about the Union
and to find out how the employees felt about it. The next day, New-
some called into his office employee Bergerson, the only remaining
union committeeman still employed by the Company, and one other
employee, told them what the directors had asked and stated that
the Company's president had said he would "take care of his boys."
About this time, Petitioner Kinney asked Newsome when the Union's
certification expired. Kinney then contacted Sidner, the Employer's
attorney. Kinney told him that the employees wanted to decertify
' 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 Murdock and Jenkins].
118 NLRB No. 59.
450553-58-vol. 118-36