River Falls Co-Operative Creamery

National Labor Relations Board - Board Decisions

Jun 9, 1950

90 N.L.R.B. 257 (N.L.R.B. 1950)

In the Matter of R IV ER TAILS Co- OPI:RATtvE CREAMERY and GENERAL
DRIVERS AND HELPERS UN iON , LOCAL 622, INTERNATION AL BROT1-1i:R-
HO l) or TEAMSTERS, CiIAUEFEURS , WAREHOUSEMEN AND HELPERS
OF AMERICA, A. F. L.
Case No. 18-CA-105:Decided June 9, 1950
DECISION AND ORDER
On January 20. 1950, Trial Examiner Louis Plost issued his Inter-
mediate 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. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair- labor
practices alleged in the complaint, and recommended dismissal of
these allegations. Thereafter, the Respondent, the Union, and the
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs.
The Board I has reviewed the rulings of the Trial Examiner made
at the ]tearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, 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. We find, in agreement with the Trial Examiner, that the Re-
spondent, in discharging Wagner for cutting off the power from the
boiler-stoker preparatory to his going on strike, slid not violate Sec-
tion 8 (a) (3). of the Act. We do not agree, however, that Wagner's
act in shutting off the power was an "incident to the calling of the
strike" or that, in so doing, he "engaged in concerted activity for the
mutual aid of fellow employees." Under all the circumstances, in-
cluding the fact that Parmeter, the relief fireman, was on hand to take
over the operation of the boiler, and the. fact that Wagner admittedly
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegate(] its powers in connection with this case to a three-member panel
[Chairman Herzog and 'Members Houston and Murdock].
90 NLRB No. 56.
903847-5]-col. 90--15 257
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was aware of the dangers which might have been caused by a sudden
drop-in steam pressure, we believe that this was neither the normal
act of a fireman about to leave. his post nor a necessary concomitant
of his going on strike. We therefore find that Wagner was discharged
for cause and not because he engaged in concerted union activity.2
2. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act. In adopting this finding, however, we
rely solely on the following activities of Supervisor Hialada :
(a) Telling employee Leo Nelson that if he dropped the Union,
he would work for the Respondent longer than the union adherents;
(b) Asking Nelson whether a contract had been read to the em-
ployees at the Union's meeting;
(c) Threatening employees Wayne and Lorraine Minder with the
loss of their jobs if they went on strike;
(d) Telling Wayne and Lorraine Minder that they would get fur-
ther ahead if they dropped the Union.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, River Falls Co-operative
Creamery, River Falls, Wisconsin, its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Promising its employees longer continued tenure or other
advantages if they withdraw from the Uilion; questioning its em-
ployees as to what has transpired at union meetings ; and threatening
employees with discharge if they engage in concerted activities;
(b) In any other manner interfering with, restraining, or coercing
.its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist General Drivers and Helpers
Union, Local 622, International Brotherhood of Teamsters, Chauffeurs,
A arehousenien and Helpers of America, A. F. L., or any other labor
organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of
collective bargaining or other- mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
2 Mt. Clemens Pottery Company, et al., 46 NLRB 714 ; affd. N. L. R. B. v . Mt. Clemens
Pottery Company , 147 F. 2d 262 ( C. A. 6).
RIVER FALLS CO-OPERATIVE CREAMERY 259
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant at River Falls, Wisconsin, copies of the notice
attached hereto and marked Appendix A.3 Copies of said notice,
to be furnished by the Regional Director for the Eighteenth Region,
shall, after being duly signed by the Respondent's representative, be
posted by- the Respondent immediately upon receipt thereof and main=
tamed by it for sixty (60) consecutive clays thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material ;
(b) Notify the Regional Director for the Eighteenth Region, in
writing, within tell (10) days from.the date of this Order, what steps
the Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint, insofar as it alleges other
violations of the Act, be, and it hereby is, dismissed.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, We hereby notify our employees that :
A E WILL -NOT attempt to induce our employees to withdraw
from GENERAL DRIVERS AND HELPERS UNION, LOCAL 622, INTER-
NATIONAL BROTI-IERIIOOD OF TEAMSTERS, CHAUFFEURS, WAREL-IOUSE-
MEN AND HELPERS OF AMERICA, A. F. L., by promising them
longer continued tenure or other advantages; question our em-
ployees as to what has transpired at union meetings; or threaten
our employees with discharge because of their concerted activities.
«'i; WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist GENERAL
DRI:vERS AND HELPERS UNION, LOCAL 622, INTERNATIONAL BROTH-
ERI IOOD OF TEAMSTERS, CHAUFFEURS, WAREI-IOUSEMEN AND HELPERS
or AMERICA, A. F. L., or any other labor organization, to bargain
collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bar-
gainillg or other mutual aid or protection, or to refrain from any
I In the event that this Order is enforced by a decree of a Court of Appeals, there shall
be inserted before the words, "A Decision and Order," the words, "A Decree of the United
States Court of Appeals enforcing."
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or all of such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
All our employees are free to become, remain, or refrain from
becoming members of the above-named union or any other labor or-
ganization, except to the extent that this right may be affected by
an agreement in conformity with Section 8 (a) (3) of the Act. We
will not discriminate in regard to the hire or tenure of employment
or any term or condition of employment against any employee because
of membership in or activity on behalf of any such labor organization.
RIVER FALLS CO-OPERATIVE CRPAMERY,
Employer.
By ----------------------------------------
(Representative) (Title)
Dated ----=---------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT
Erwin A. Peterson, Esq., for the General Counsel.
I3anndiie, Kelley, Fiutert 011(1 J/uen, by JIan.dt Torriso'n, Esq., of St. Paid, Minn.,
for the Respondent.
ALr. IVOI) Hru H. Kleist, of Eau Claire, Avis., for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed August 1, 1949, by. General Drivers and Helpers
Union, Local 622, International Brotherhood of Teamsters, Chauffeurs, Ware
housemen and helpers of America, A. F. of L.. herein called the Union, the
General Counsel of the National Labor Relations Board, herein called the Board,
by the Regional Director for the Eighteenth Region (Minneapolis, Minnesota),
issued a complaint dated September 29, 1949, against River Falls Co-operative
Creamery, of River Falls, Wisconsin, herein called the Respondent., alleging
that the Respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section S (a) (1) and (3) and Section 2 (6) and (7) of
the National Labor Relations Act, 61 Stat. 136, herein called the Act. On August
1, 1949, the Respondent was served with a copy of the amended charge. On
April 12, 1949, the original charge in this matter had been duly filed and on
April 13, 1949, the Respondent had been served with it copy thereof. On Sep-
tember 29, 1949, the Respondent was again served with a copy of the amended
charge, together with a copy of the complaint and a notice of hearing.
With respect to the unfair labor practices, the complaint alleges in substance
(a) that the Respondent discharged and reused to reinstate a certain one of
its employees, named therein, because he engaged in concerted ;activities with
other employees for mutual aid and protection and in behalf of the Union, (b)
that by such and other acts and conduct the Respondent did interfere with,
RIVER FALLS CO-OPERATIVE CREAMERY 261
restrain, and coerce, and is interfering with, restraining, and coercing its enl-
ployees in the exercise of rights guaranteed in Section 7 of the Act, and (c) that
the above alleged acts and conduct of the Respondent are in violation of Section S
(a) (1) and (3) of the Act.
On October 18, 1949, the Respondent filed an answer in which it denied that it
hall engaged in any of the unfair labor practices alleged in the complaint.
Pursuant to notice, a hearing was held at River Falls, Wisconsin, on Novem-
ber 22 and 23, 1949, before Louis Plost, the undersigned Trial.Eixaminer, duly
designated by the Chief Trial Examiner. The General Counsel, the Respondent,
and the minion were all represented, the representatives of the respective parties
being hereinafter referred to in the name of their principals. All the parties par-
ticipated in the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing on the
issues.
The General Counselsought.'to prove an unfair labor practice by the Respond-
ent through testimony relating to a certain conversation between an official
of the Respondent and a union steward during ;in automobile trip taken by the
two men, who both testified as the sole witnesses to the incident. The Respond-
ent's official fixed the time of the occurrence as "during the period of the strike,"
i. e., between Afar(.-Ii 1.8 and 21., 1949, while the union steward placed the time
in late June or early July 1948, "probably 3 weeks, something like that after we
had signed up with the Union." The original charge was filed April 12, 1949.
The Respondent moved that the above noted testimony be stricken on the
ground that it was not admissible under Section 10 (b) of the Act which pro-
hibits issndnce of a complaint based upon an occurrence 6 months prior to. the
filing of a charge and service of a copy thereof on the party charged. The un-
dersigned reserved ruling. Although the state of the record leaves room for
doubt, however, inasmuch as the witness called to sustain the General Counsel's
allegation fixed the time of the alleged unfair labor practice beyond the 6-month
limitation, the undersigned considers the testimony binding upon the General
Counsel and therefore credits it as against the contrary testi:.iony of the only
other witness to. the occurrence and hereby grants the Respondent's motion to
strike. The parties waived the right afforded thelu to argue orally on the record.
At the close of the hearing the undersigned granted, without objection, a motion
by the General Counsel to conform all the pleadings to the proof with respect to
spelling of names, Correction of dates, and like variances, not substantive. Like-
wise at the close of the hearing the undersigned denied a motion by the Respond-
ent to dismiss the complaint. The undersigned fixed. December 7 as the date
for all parties to file briefs, proposed findings of fact, and conclusions of law.
Upon joint motion made after the hearing the time was extended to December
15. A brief has been received from the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. TILE I{CSINESS OF TILE RESPONDENT
The Respondent, River Falls Co-operative Creamery is a Wisconsin corpora-
tion, with its principal place of business at River Falls, Wisconsin. The Ile-
spondent operates a plant for the processing of dairy products including the
converting of fluid milk into dry milk powder. During the calendar year 1948,
the Respondent for use in its River Falls operation purchased whole and skin)
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
milk valued in excess of $1,000,000 of which approximately 33 percent came te,
the Respondent from points outside the State of Wisconsin. During the same
period, the Respondent's sales amounted to more than $1,000,000 of which 90
percent represented sales and shipments to points outside the State of Wisconsin.
The Respondent concedes that it is engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATION' INVOLVED
General Drivers and Helpers Union, Local 622. International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated
with the American Federation of Labor, is a labor organization admitting em-
ployees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The alleged discriminatory dischui pe of Fred li-agfiei•
1. The Respondent's plant
The Respondent's plant is designed to convert fluid milk into a dry powder
product. Stripped of technical descriptions and engineering terms the Respond-
ent's milk drying equipment consists of a series of four units, of metal tubing
enclosed in metal shells. The milk is passed through the tubing, the shell en-
closing each series of tubing being filled with live steam which imports heat to
the tubing to effect the drying or evaporating process. Between the second and
third units there is a centrifugal separator also operated by steam and a pre-
heater and injectors. at various points in the system which also depend on steam.
Again stripped of technical descriptions, it is clear that the entire operation
is dependent on the maintenance of a uniform steam pressure. The maintenance
of uniform steam pressure is vital to the operation of the process and the safety
of the plant, for should the pressure be changed while the machinery is in opera-
tion the machinery could conceivably be damaged or destroyed and the entire
plant be endangered. However, it is improbable that such an accident could
occur due to any change in steam pressure alone for the reason that safety valves
are installed in the system, both in the drying process proper and at the steam
boiler, by which the contents of the units can be emptied rapidly. The valves
themselves can be opened by the attendants, always on duty, within 30 seconds.
Should it become necessary to make use of these safety valves and dump the
milk in the system, the resultant loss would in all probability be only the milk
in the system at the time, which according to the testimony of George Tooby,
an official of the"Respondedf Who•designe'd the iOachiner.^, would be approximately
90 gallons of fluid milk. When cleared in an ordinary, and not an emergency
manner 30 to 35 minutes are required to empty the drying system of fluids.
A signaling' system, consisting of an electric buzzer, is installed between the
boiler room, where the essential steam is generated, and the drying room. The
signal system is intended to be used in warning the operators in case a change
in steam pressure is imminent.
The drying machinery is valued in excess of $100,000.
The steam upon which the operation of the plant depends is generated by a
boiler which is installed in a build'ng a short distance from the ma`n plant in
which the drying machinery is installed. The boiler is tended by one fireman
who is charged with keeping the steam pressure constant. It is apparent that
the fireman's is a responsible function. Uncontradicted testimony discloses
RIVER FALLS CO-OPERATIVE CREAMERY 263
that the nature and importance of the jot) with respect to the operation and
safety of the, plant was carefully impressed on all the firemen by management.
2. The Union, the strike, and the discharge of Fred Wagner
On June 11, 1948; the Respondent's employees held their first meeting for the
purpose of organizing the Union and on the following day, the Union notified
the Respondent that it represented its employees and requested recognition and
a bargaining conference. On November 9, 1948, the Board's Regional Office con-
ducted an election among the Respondent's employees. at-which the'.employees
designated the Union as their bargaining agent. On November 29; 1948, the
Union and the Respondent entered negotiations for a contract, however no agree-
ment had been reached by March 1.8, 1949, on which date Norman Kleist, the
Union's secretary-treasurer, notified the Respondent's manager, Osiner K. Wilkins,
the Union intended to strike the plant that night. The Respondent prepared
for the eventuality of a strike by arranging for a "stand by crew" to take over
and had this crew in the plant prior to the ending of the midnight shift.
Fred Wagner was on duty as fireman on the closing shift of March 18, sched-
uled to be terminated at midnight. Wagner was a regular fireman and had
been so employed by the Respondent since April 1945. At approximately 11 p. M.,
Kleist accompanied by another union representative and some of the Respondent's
employees came into the boiler room. Neither Kleist nor the union represent-
ative with him were employees of the Respondent. and were clearly trespassers.
Upon entering the boiler room Kleist said to Wagner : "This is it. Pull the pin."
Kleist then left the boiler room and went to other departments of the plant
in a different building, returning "in about two or three minutes." Upon re-
turning to the boiler room, Kleist told Wagner : "Shut it off."
The boiler Wagner was tending was coal burning and fed by an automatic
stoker. All the machinery dependent upon steam was in operation. As soon
as Kleist told him to "Shut it off" Wagner cut off the electric power from the
stoker, stopping its operation, and thus ending the flow of coal into the boiler's
fire box. .
Before he cut off the power from the stoker, Wagner signaled the drying room,
by the buzzer, giving the proper signal that a drop in pressure was imminent
due to conditions in the boiler room, but he did not wait for an answering signal
advising him that his signal was received, nor was an answering signal given him.
As soon as the stoker's operation was stopped, employee Carl Parmeter, who
was waiting'in•the boiler room to relieve Wagner either at the end of the shift or
sooner in the event of a strike, immediately left the boiler room to call Harold
Hanson, the plant superintendent and operating engineer. Parmeter met Hanson
at the door of the main building; some 50 feet from the boiler room. Hanson had
heard the buzzer signal and was on the way to the boiler room. The two men
returned to the boiler room, where Parmeter on order of Hanson started the
stoker. Neither Wagner, Kleist, nor any of the Respondent's employees who
were in the boiler room, made any attempt whatever to prevent Parmeter from
starting the stoker operation. The stoker's operation had been stopped for less
than a minutes.
It is perfectly clear that the steam pressure began to drop as soon as the
operation of the stoker. ceased. There was no damage to the machinery but
there was a loss of 3,000 pounds of skim milk through dumping by opening the
safety valve in the drying room and through foaming because of the change in
pressure. In this respect, Hanson testified that milk was let out through the
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Safety valves and there was a. loss of 3,000 pounds of fluid all because of the
drop in steam pressure caused by the operation of the stoker being stopped, while.
employee Arnold L. Johnson testified that he was in the drying room on the.
night of March 18, and heard Wagner's buzzing signal indicating. trouble and
further testified "There wasn't any loss of milk I could see." Johnson was not
on duty at the time and did not deny that he was sitting oil a vat about 15 feet
from the machine from which the fluid milk would be drawn in case of emergency.
On all the evidence the undersigned credits I3anson's account regarding. the
dumping or loss of milk on the night of March 18.
On March 21, the Union and the Respondent reached an agreement to terminate
the strike. At this time, the Respondent informed the Union that all the strik-
ing employees would be returned to work except Wagner, because he had "sab-
otaged" its property, and one other employee, Art FoukS, who the Respondent
believed had instructed Wagner to cut off the power from the stoker, however,
the Respondent agreed to take no final action on either case until a hearing was
held before its officials.
Wagner returned to the plant when it was reopened on March 22, he was not
permitted to work but was told to sit in the boiler room idle which he did. On
March 23 a meeting on the matter was held in the Respondent's office between
certain of its officials and representatives of the Union. The Respondent was
persuaded at this meeting that Fouks was not implicated in the power shut-off
and lie was reinstated to his job. At the meeting Wagner told the Respondent,
"I pulled the switch because Norman Kleist told me to pull it."
It is apparent from the record that Wagner understood the necessity of keep-
ing a uniform steam pressure. Moreover, he had been in the plant at a time
when a serious accident was narrowly avoided because of a drop in steam
.pressure.
The Respondent discharged Wagner at the close of the March 23 meeting.
Except where otherwise indicated, the above findings are all based on undis-
puted testimony of witnesses for both the General Counsel and the Respondent
which testimony is mutually corroborative and is credited by the undersigned.
The Respondent contends in its brief that Wagner was discharged because
of an act of sabotage or intended sabotage by shutting off the boiler stoker and
for the further reason that he was :in unsatisfactory employee, being quarrel-
some, failing to get along with other employees, refusing to obey orders, and
at one time permitting equipment in his care to be damaged.
F. E. McCue, the president of the Respondent's board of directors admitted
that the sole reason Wagner was discharged was because lie pulled the switch
which stopped the stoker.
There was no property damage because of Wagner's act, although it is con-
ceivable that damage could have resulted from it, the only loss was of some of
the milk being processed.
The undersigned is persuaded by the record and finds on all the evidence
considered as a whole that no cause other than Wagner's shutting off the power
from the stoker played any part in his discharge.
The undersigned is persuaded by the entire record that at the time Wagner
shut off the power from the boiler stoker, he was in no way motivated by malice
nor (lid he intend to damage the Respondent's property. Wagner followed the
instructions of the Union's representative and his act was incident to the calling
of the strike. Legally, Wagner engaged in concerted activity for the mutual aid
of fellow employees.
RIVER FALLS CO-OPERATIVE CREAMERY 265
The issue is thus clearly posed.
Is an employee who as an incident to the calling of a strike engages in con-
duct which can he described as a gesture of sabotage and which absent the strike
would have warranted his discharge, protected from such discharge because his
gesture of sabotage was made in the nature of concerted activity and incident
to a strike?
Concluding findings on the discharge of Fred Wagner
The Respondent contends that Wagner was discharged for cause and argues
that Section 10 (c) of the Act prohibits the Board from ordering Wagner's
reinstatement. The pertinent section reads:
No order of the Board shall require the reinstatement of any individual as
an employee who has been suspended or discharged, or the payment to hiui
of any back pay, if such individual was suspended or. discharged for cause.
The Statement of the Managers on the Part of the House, with respect to the
Act (House Conference Report No. 510, page 39 and following) points out that
the force of Section 10 (c) is intended to apply "with equal force whether or l +ot
[emphasis supplied] the acts constituting the cause for disharge were coin-
mitted in connection with a concerted activity."
Improper conduct of individuals with respect to concerted activities is not
defined however as the House Conference Report points out that "proof of
unlawful conduct cannot hereafter be limited to proof of confession or conviction
thereof" it would seem that whether conduct is merely an incident to a protected
act or is beyond such protection and proper cause for discharge must be deter-
mined by the Board on the facts of each case as it conies before it.
Under the Wagner Act, which did not contain Section 1.0 (c), as above quoted,
the Board had no hesitation in ruling that employees (lid not have the right
either as individuals or concertedly to engage in unlawful or improper conduct
nor (lid the Board fail to define certain conduct as unwarranted and therefore
not protected by the Act; thus in the American Yews Company case (55 NLI'IB
1302) the Board held that employees had no rights which were protected under
the Act when they engaged in a strike in order to compel their employer to
violate the law, and in the Th-om.psov. Products case (72 NLRB 886) that a. strike
to compel an employer to violate the Act and the Board's rulings were not such
concerted activity as is protected by Section 7. More recently in Socony Y(ocnuns
Oil Co. Inc. (78 NLRB 1185), the Board found that an employer had the right
to discharge pickets who barred legal entry to its plant, citing as -authority
N. L. R..8. v. Perfect Ci:°clc Company (162 F. 2(J 566), in which the Court (C. A.
7) in overruling the Board pointed out that "the dischargedemployees . . . pre-
vented the entry upon the employer's property," and held that this form of con-
certed action was such misconduct as to warrant discharge. In the Brown Radio
Service and Laboratory case (70 NLRB 476), the Board in ordering the reinstate-
ment of certain strikers notwithstanding the contention that some of them had
engaged in wrongful conduct used the following language :
. . . since the record does not identify any of the striking employees as
having engaged in the misconduct alleged. However, the alleged wrong-
doing is not condoned and such misconduct would have been considered as
sufficient justification for the discharge of an employee who had been clearly
and unmistakeably identified as a participant therein.
In the Mt. Clemens Pottery Compel !, case (46 NLRB 714) the Board found
that an employer did not discriminatorily discharge an employee under the fol-
lowing circumstances:
266 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
The undisputed evidence establishes that on the day prior to his discharge
Starkey not only failed to ascertain definitely the water level in one of
the boilers under his care while the warning whistle was blowing, but
ceased work to talk to a fellow eniployee' notwithstanding the, continued
blowing of the warning whistle. It is plain that such neglect of duty in-
volved the possibility of serious injury to life and property.
In the same case, the employees went on strike, and among those discharged
by the company, were two men who pulled the main switches in the plant. The
Board held that the discharge of these two employees :
. . . was motivated by the fact that they had, without permission, tampered
with property by pulling switches in the plant, and they were not penalized
because they had lawfully ceased work in concert with others.
In this case the Board was sustained by the United States Court of Appeals for
the Sixth Circuit. (N. L. R. B. v. Mt. Clemens Pottery Co., 147 F. 2d 262.)
'The undersigned is not unmindful of the Board's recent decision in Andrews
Company v. American Federation of Labor (87 NLRB 379) in which the Board
held that an employer cannot rely on union leaders' pulling of the master switch
as justification of its discharge of economic strikers, although the pulling of
the switch violated State law and idled most of the plant machines, since this
action was incidental to the work stoppage and was not its objective, and no
damage to property or loss, other than loss of production resulted.
The finding is not the Board's language but is a paraphrase of the Trial Ex-
aminer's report which reads as follows :
[Text] Aside from its contention that the employees quit their jobs, a coni-
tention which has been rejected, Respondent argues further, that the action
of one.or more union leaders in pulling the master switch-which had the
effect of rendering idle most of the machines whether of union members or
nonunion members-was a violation of state law and a conspiracy on the
part of all the strikers to commit an illegal act.
. . . while the pulling of the master switches idled certain machines run
by employees not engaging in the work stoppage, there is no evidence that
any damage to property resulted from this action or any loss of production
inherent in the stopping of the machines. But the very object of an eco-
nomic strike is to exert economic pressure on the employer to bring him to
terms, and a strike does not become illegal merely because the employer
suffers economic loss.
* * * * * *
. . . The pulling of the master switch was incidental to the work stoppage
and not its objective. Nor do I think that Respondent can rely on this
act as justification of its discharge of the strikers. This defense, not men-
tioned in Respondent's answer, is hardly more than one of those ingenious
after-thoughts which sometimes occur to an enterprising legal mind.
The undersigned is of the opinion that the Lln.drews case and the instant
matter are clearly distinguishable.
In the instant matter, the Respondent at no time condoned Wagner's act;
when it agreed to reopen its plant it did so with the reservation that Wagner
and one other employee, thought by the Respondent to be responsible with
Wagner in shutting off the boiler stoker, would not be returned to work but when
an investigation disclosed that Wagner was the only one of its employees impli-
RIVER FALLS CO-OPERATIVE CREAMERY 267
Gated in the shutting off of the stoker, the other employee was returned to his
job; the Respondent did not discharge any other striker and maintained
throughout, consistent with its defense at the hearing, that Wagner was dis-
charged because of his unwarranted act in cutting off the power from the stoker.
Clearly, in the instant matter, the Respondent's defense was not such a defense
as characterized in the Andrews case, "hardly more than one of those ingenious
after-thoughts which sometimes occur to an enterprising legal mind."
The undersigned is convinced and finds that the Respondent discharged Fred
Wagner solely because lie cut off the power from the boiler stoker. The under-
signed further finds that under the circumstances in the case, and upon the
-tntire record and the decisions of the Board and Courts, Wagner's discharge
was for justifiable cause, and is of the opinion that Section 10 (c) applies
herei n.
The undersigned will therefore recommend that the complaint herein be dis-
missed insofar as it alleges that the Respondent discriminatorily discharged
Fred Wagner.
B. Interference, restraint, and coercion
Employee Leo Nelson testified that ":just about noon, right after lunch" of
a day which he could not fix other than being sometime during the last week
of April, or the first week of May 1949, Jerry [Jerome] Halada entered into a
conversation with him regarding the Union.
The record establishes that Halada is in charge of the Respondent's laboratory
and that his duties and responsibilities, including the overseeing of work and
recommendations affecting employment, clearly make, him a supervisory em-
ployee within the meaning of the Act.
Nelson testified that Halada told him lie "couldn't see why we should have a
third party coming in from the outside telling us what to do," and that "then
he told me if I could see my way to drop the union and not bother with them
I would be working there a long while after the other union men were out."
Nelson also testified that Halada told him "that we should have. a company
union." At the time Nelson did not know what "company union" meant but
according to his testimony "I found out. I asked around what a company
union was."
Halada admitted holding a conversation with Nelson at the place and time
specified in Nelson's testimony; denied making any mention of a "company
union" to Nelson; and testified that all he remembered of the conversation
was asking -Nelson "what he thought of things in general" and "if they had
a contract read to them at their last meeting," however, he denied making any
statements to the effect that if Nelson dropped the union "he would be around
longer than the union employees.".
Wayne Minder testified that "approximately two weeks" before the strike
(March 18, 1949), during the noon hour, Halada had a conversation with him
in the laboratory. Minder testified:
A. Well, he, Mr. Halada told us if we should give careful consideration
on what we were doing on the matter of going out , of signing up with the
union and going out on strike. He says to give that careful consideration
because he said if we would do . . . if we would go out on strike and walk
the picket line we would definitely be out of a job.
Q. Did he ask you any particular question about , the union?
A. Well, lie says it was best if we left the union alone and stayed away
with the Company, lie said we would be a lot further ahead.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blinder further testified that his wife, also an employee of the Respondent, was
present. during the conversation.
Lorraine Minder, Wayne Blinder's wife, corroborated her husband. She
testified :
Well, we were told [by Halada] if we went on the picket line we defi-
nitely would be out of a job, we just was going to be fired, that was all.
Halada testified that he could recall no "specific" conversations with the
Blinders -but that he had various conversations with them during noon hours
but that "I [Halada] made sure not to say anything which would implicate
me in any manner."
From his observation of the witnesses and on the entire record, the under-
signed is convinced that Nelson's account of the conversation between himself
and Halada is the more accurate version thereof, and credits his testimony
with respect thereto and does not credit Halada's denial to the effect that he
(lid not tell Nelson if he dropped the Union he would be working there a long
while after the union men were out, or his denial that he did not suggest
a "company union" to Nelson.
For the same reasons, the undersigned credits the testimony of Wayne and
Lorraine Minder and does not credit Halada's testimony with respect thereto.
The undersigned therefore finds that on some unspecified. clay in late April
or early May 1949, the Respondent, through Halada, told employee Leo_ Nelson
in effect that there was no necessity for a "third. party" meaning the Union
and at the, same time suggested a "company union" ; asked if a contract had
been read at the Union's meeting: and further told Nelson that if he dropped
the Union, he would be in the Respondent's employ after the Union's adherents
were not. The undersigned further finds that approximately 2 weeks prior to
March 18, 1949, the Respondent, through I3alada, told employees Wayne and
Lorraine Minder, in effect, that if they went on strike and joined a picket. line,
they would be discharged, and that they would be farther ahead if they left
the Union alone.
The Respondent argues in its brief (a) that the antiunion remarks of a
minor supervisory employee are not attributable to the employer; (b) that
if the employee is not shown to have been influenced by the antiunion remarks
of a supervisor, the employer. cannot be held responsible; (c) that Halada's
statements were isolated remarks and cannot be made a basis for a finding
of illegal interference; and (d) that Halada's remarks were expressions of
personal opinion apparently protected as free speech, under the constitutional
guarantee and further protected under Section 8 (c) of the Act as they do not
contain any threat of reprisal or promise of benefit.
The undersigned finds no merit in any of these contentions. It has been
found that Halada was a supervisor within the meaning of the Act and as such
his acts bind the Respondent; the test of the discriminatory character of state-
ments does not lie in the effect of the statement but their, tendency to interfere
with the exercise of guaranteed rights (Re(l Rock Co., 84 NLRB 521) ; in view
of the fact that Halada's statements to Nelson and the Hinders follow the
same pattern, the undersigned infers that they were not mere chance expres-
sions which can be isolated; and finally inasmuch as the Courts have uniformly
held with respect to labor matters that the right of free speech is not absolute
RIVER FALLS C0-OPERATIVE CREAMERY 269
(N. L. R. B. v. Federbti.sh, 121 F. 2d 954) and clearly an invitation to desert
a union coupled with the. statements that such action would insure a longer
tenure of employment, that employees who left the Union alone would be
farther ahead; and that to go on strike or walk a picket line would mean dis-
charge, cannot be construed as other than open threats.
On the basis of the above findings and on the entire record in the case, the
undersigned finds that by the conduct of Jerome Halada with respect to Nelson
and the blinders, as found hereinabove, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF TIn3 UNFAIR LABOR PRACTICES UPON CO-IIERCE
The activities of the Respondent set forth in Section III, above. occurring
in connection with the operations of the Respondent's business 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 dis-
putes burdening and obstructing conferee and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in, and is engaging in, unfair
labor practices , it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent has made certain threatening state-
ments to certain of its employees to the effect that they would be discharged if
they went oo strike or appeared on a picket line, and advised an employee to
desert the Union of his choice on the promise of longer tenure and advised
this employee that a "company union " was preferable to a "third party" ;
advised employees that "they would be farther ahead " if they left the Union
alone and inquired into the business proceedings of the Union ; all in violation
of the Act.
Upon the basis of the above findings of fact , and upon the entire record in
the case , the undersigned makes the following:
CoNCLuSIONS or LAw
1. The- Respondent, River Falls Co-operative Creamery, River Falls, Wiscon-
sin, is engaged in commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. General Drivers and Helpers Union, Local 622, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L.,
is a labor organization within the meaning of Section 2 (5) of the Act.
3. By interfering with, restraining, and-coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act by discharging Fred Wagner.
270 DECISIONS OF NATIONAL LABOR RELATIONS.BOARD
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, it is
recommended that the Respondent, River Walls Co-operative Creamery, River
Falls. Wisconsin, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Suggesting to employees that they drop the Union of their choice on the
promise of longer continued tenure, suggesting a preference for a company
union, making inquiries into the business transactions at union meetings of its
employees, and threatening employees with discharge if they went on strike or
were on a picket line;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self-organization, to form labor
organizations, or to join or assist General Drivers and Helpers Union, Local 622,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of.Anmerica, A. F. of L., or any other labor organization, to bargain collectively
through representatives of their own choosing and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.'
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Post at its plant at River Falls, Wisconsin, copies of the notice attached
hereto marked Appendix A. Copies of said notice, to be furnished by the
Regional Director for the Eighteenth Region, shall, after being signed by the
Respondent's representative, be posted by the Respondent and maintained by it
for sixty (60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material;
(b) Notify the Regional Director for the Eighteenth Region in writing, within
twenty (20) clays from the date of service of this Intermediate Report, what
steps the Respondent has taken to comply herewith.
It is further recommended that the complaint herein be dismissed insofar as
it alleges that the Respondent committed unfair labor practices by discharging
Fred Wagner.
As provided in section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations. file with the Board, Washington 25, D. C.,
an original and six copies of it statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof ; and any party may.
within the same period, file an original and six copies of a brief in support of
the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Statements of exceptions and briefs shall desig-
nate by precise citation the portions of the record relied upon and shall be legibly
printed or mimeographed, and if mimeograpl.:ed shall b--, double spaced. Proof of
service on the other parties of all papers filed with the Boitrd shall be promptly
1 See Linde Air Products Company , 86 NLRB 1333.
RIVER FALLS CO-OPERATIVE CREAMERY 271
made as required by Section 203.85. As further provided in said Section 203.46
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions. and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 20th day of January 1950.
Louis PLOS ST,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in GENERAL DRIVERS AND HELPERS
UNION, LOCAL 622, INTERNATIONAL. BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L., or any other labor
organization of our employees, by suggesting to any employees that they
abandon the union of their choice, indicating a preference for a company
Unicn, making inquiries into the business transactions at union meetings of
our employees, and threatening employees with discharge if they went on
strike or were on picket lines.
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist GENERAL DRIVI:RS AND HELPERS UNION, LOCAL
622, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARESOUSE-
MEN AND HELPERS OF AMERICA, A. F. OF L., or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining or.
other mutual aid or protection, or to refrain from any and all such activities,
except 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 in Section 8 (a) (3) of the Act.
All our employees are free to become or remain members of this union, or any
other labor organization
RIVER FALLS . CO-OPERATIVE CREAMERY,
Employer.
By ---------------------------------------
(Representative) (Title)
Dated--------------------
.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.