Russell S. Kribs Associates, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1970

181 N.L.R.B. 1109 (N.L.R.B. 1970)

RUSSELL S. KRIBS ASSOCIATES, INC.
Russell S . Kribs Associates , Inc. and Betty Wood,
An Individual and International Union of United
Brewery, Flour , Cereal, Soft Drink and Distillery
Workers of America , AFL-CIO, Local Union
No. 303. Cases 14-CA-4941-2 and 14-CA-5078
April 14, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On January 6, 1970, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled case,
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 attached Trial Examiner's Decision. He
dismissed certain other unfair labor practices alleged
in the complaint. Thereafter, the Respondent and
the General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs. The
Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed.' The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Russell S. Kribs
Associates, Inc., St. Louis, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
'Respondent contends that the Trial Examiner deprived it of due process
by fading to allow counsel to examine certain Board files and employees
As the Trial Examiner's rulings in this respect had no effect on the results
of the case , which as to the issue in question dismisses the allegation of the
complaint, we find that no prejudice has been shown and the error , if any,
was harmless
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in the
181 NLRB No. 173
1109
above-entitled proceeding was held before me on
September 15, 16 and 17, 1969, at St Louis, Missouri, on
complaint of the General Counsel against Russell S. Kribs
Associates, Inc., herein called the Respondent or the
Company. The complaint issued on June 6, 1969, and
rests upon two charges, Case 14-CA-4941-2 filed by Betty
Wood, an individual, on December 23, 1968, and Case
14-CA-5078 filed on April 14, 1969, by International
Union of United Brewery, Flour, Cereal, Soft Drink and
Distillery Workers of America, AFL-CIO, Local Union
No. 303, herein called the Brewery Workers. Case
14-CA-4941-2 was settled on February 5, 1969, by
agreement between the Respondent and the Board's
Regional Director, but this settlement was later set aside
on the ground that the Respondent had violated the
agreement by committing later unfair labor practices. The
complaint as it now stands alleges unlawful restraint and
coercion in violation of Section 8(a)(1) of the Act,
unlawful interference with and assistance to a company
union violative of Section 8(a)(2), and illegal discharge of
three employees prohibited by Section 8(a)(3). Briefs were
filed after the close of hearing by the General Counsel and
the Respondent.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Russell S. Kribs Associates, Inc , a Missouri
corporation, has its principal office and place of business
in St. Louis, Missouri, where it is engaged in the
manufacture, sale and distribution of point-of-purchase
advertising displays and related products. During the year
ending May 31, 1969, a representative period, the
Company manufactured, sold and distributed from this
plant products valued in excess of $50,000 which were
shipped from said plant directly to points located outside
the State of Missouri. I find that the Respondent is
engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act to exercise
jurisdiction herein
Il. THE LABOR ORGANIZATION INVOLVED
International Union of United Brewery, Flour, Cereal,
Soft Drink and Distillery Workers of America, AFL-CIO,
Local Union No. 303 , is a labor organization within the
meaning of Section 2(5) of the Act'
The complaint alleges that there came into being and that there still
exists an independent labor organization called the Company Union of the
Employees of Russell S Kribs Associates, Inc The answer contradicts this
assertion It is very doubtful, now that the evidence has been heard,
whether such a union, by that name or any other, in fact was ever formed
In his brief the General Counsel expressly limits the remedy sought to
whatever may be appropriate in consequence of any violation of Section
8(axl) of the Act, which requires no preliminary finding that there was a
separate union formed, as distinguished from any violation of Section
8(aX2) of the statute , which can only be found when a labor organization
did exist Accordingly, there is no occasion to decide whether or not in fact
any labor organization was ever formed In the circumstances the record as
made does not warrant any finding that such a labor organization in fact
was formed
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A Picture of the Case
This Company first started business in January of 1968
Shortly thereafter the IBEW was certified as bargaining
agent for production and maintenance employees and a
number of bargaining sessions followed, with no
agreement reached. In the springtime one of the
employees told Mr. Russell Kribs, the president, that the
employees no longer wished to be represented by that
union and the meetings ended. In June the Company
posted a notice on its bulletin boards requesting the
employees to select a representative to deal with the
Company on behalf of all employees.' The employees
ignored this suggestion , which remained posted on the
boards through November. On the first of November
Kribs gathered them again and urged them to choose such
a spokesman. This time they did. Lois Evans, who was
selected for this purpose, twice communicated with Kribs
as he had suggested, on Thanksgiving to prevail upon the
Company to vary its rules and permit the employees to
stay home Friday without losing holiday pay for the
Thursday holiday, and again before Christmas to protest,
on behalf of a number of girls, a substantial economic
layoff. With this, the first charge was filed on December
23, and Kribs settled the case; he posted a notice on
February 6, 1969, promising to stop urging his employees
to elect a representative to deal with him about their
working conditions and to stop recognizing such a
spokesman as their agent.
At the same employee meeting where Kribs told the
employees, on November 1, to select a representative, he
also proposed to them that they form an association in
order to have money for various purposes. He told them
he would buy food and soft drink machines and that they
could have the money profits from them. He also
promised to add to the resultant fund periodically 1 cent
for every hour worked by the employees, and started by
placing $200 to the organization's account immediately.
The employees did as they were told and selected
Geraldine Genovese as trustee, or agent for the money.
The group was called Kribs' Employees Mutual Benefit
Association (KEMBA). In the beginning both Genovese
and Kribs signed the checks, but later she became, and
still remains the single person who handles the money
Genovese, according to the complaint, is a supervisor.
Between that time and September of 1969, the Company
paid to KEMBA $905, of which $529 represented the I
cent per hour gift.
In late March and early April some of the girls started
to join the Brewery Workers and on April 3 that union
filed a representation election petition with the Board. A
day or two later Kribs again gathered the employees and
told them about it; he also read from a notice he had
received from the Board for posting, a statement which
explained employee rights in self-organization activities
'Among other things the notice contained the following statements
It is requested that production , warehouse and maintenance employees
elect a representative to attend a weekly meeting with management and
supervisory personnel to present the viewpoint of production personnel
for consideration in establishing new policies, procedures , work methods
and plant rules
M M
The elected representative will be authorized to request immediate
consultation with the management representative , through his or her
immediate supervisor, on matters which are considered too urgent to
wait for presentation at scheduled meetings
and Board elections.
Within approximately the next 30 days there developed
a move among the employees to have an "inside" or
"company" union , as distinguished from an "outside"
union . There were also several more meetings of
employees called and addressed by Kribs personally. To
what extent the move towards an inside union , and against
the organizational campaign of the Brewery Workers was
inspired and fostered by Kribs, and also encouraged by
two alleged supervisors - Genovese and Patricia Riti -
is a question to be decided by the oral testimony of a
number of employees.
During the week of April 14-18 the Respondent
discharged seven girls ; it is alleged three of these were
released because of their pro- Brewery Workers activity.
The Respondent denies commission of any unfair labor
practices.
Violations of Section 8(a)(l)
Supervisory Status of Genovese and Riti
In the spring of 1969 there were 35 or 36 rank-and-file
employees, most of them assembly girls who worked on
production lines. The managerial structure had Kribs at
the top and below him Lester Hercules, the plant
manager. Between Hercules and the girls there were
Genovese and Riti, whom the Company witnesses at the
hearing called lead girls. A number of employee witnesses
referred to them as supervisors, and said that was what
they always were called Riti is responsible for work
performed in the decorating department and Genovese has
like authority in the hot room. Kribs made plain that their
status and responsibility are alike Genovese then had 20
to 25 employees in her section; Riti had 5 or 6. Most of
the testimony was directed to the way Genovese operated.
According to Plant Manager Hercules, who has since
left the Company: "She [Genovese] was in charge of the
assembly room . if there was someone that maybe she
felt wouldn't fit in the job or was more or less being lax in
their job she would mention it to me "She was
directing the type of work and placement of the particular
jobs, keep track of the quantity, parts being put on the
line, as well as the volume that was being completed." He
also said it was part of Genovese's duties to enforce plant
rules and to call infractions to his attention. He even
added: "She had authority to recommend [discharges], I
would say."
Both these women are hourly paid, work on the clock,
and do not have power to hire, discharge, or discipline
employees on their own. They are responsible to see to it
that work is performed in adequate quantity and correctly.
As Genovese herself put it; "Well, I just assigned the girls
their work and put them where I wanted to, whoever is
the best on certain jobs to do, and if she can't do it, then
I go get another girl who I think might be faster to do it."
She said she normally consults no one in deciding these
things. Asked "Is it her job or is it her responsibility to
keep the assembly lines moving on her department?",
Kribs said "that would be an acceptable description." She
was promoted to a position of authority a week or so
after her initial hiring in January of 1968, with a raise of
30 cents per hour, she said, to $2 per hour, but the
company records indicate her raise then may have been 55
cents per hour immediately. At the time of the hearing she
was earning $2.70 per hour, while the girls under her
supervision were being paid "up to two dollars an hour "
RUSSELL S. KRIBS ASSOCIATES, INC 1111
Most of the girls are paid less than this. Riti receives
$2.60 per hour
In more than one talk Kribs had with the employees
during April the question of participation in union
activities by supervisors came up Carolyn Tittle testified
that Kribs told the employees they should tell the
supervisors about any union activities and advised them it
was not improper for supervisors to join in She added
that when the girls asked who were the supervisors, Kribs
answered "Pat Riti and Gerry Genovese." As employee
Dolores Toney recalled it, Kribs said "the supervisors
could join the Union or belong to the Union if it was
agreeable between the Union and the Company " Ruth
Sherrick also recalled Kribs saying: "Geraldine Genovese
and Patricia Riti were the supervisors." There is like
testimony by Agnes Bridges.
Kribs' testimony is not the clearest denial of the
foregoing At one point when Tillman asked who the
supervisors were, he answered ". those people who were
on a monthly payroll were supervisors and that the lead
girls were Gerry Genovese and Pat Riti." Later, in
explaining the matter further, he added "I told them I
felt that I had not answered as clearly as I might their
question about supervisors, the lead girls, and whether or
not these people should be permitted to vote, and I felt
that I would be within my right to say to them that at the
last union with which we had negotiated, they had insisted
that our lead girls be members of the union, so that I
assumed that it was a matter of choice of the union and
the employees whether or not the lead girls should be
members of the union so that I felt sure in my ground
that it was a matter of choice to be decided between the
employees and the union as to whether the lead girls
should be members of that union."
I find that Genovese and Riti were supervisors within
the meaning of the Act because they exercised
independent judgment in responsibly directing the work of
employees in their charge There is ambiguous refeience
to other persons besides the plant manager also exercising
supervisory authority in this plant, but no real evidence
sufficient to find in fact that anyone other than the two
women stood between the 35 assembly line workers and
Hercules A ratio of 35 rank-and-file employees to one
supervisor points strongly to supervisory status of the
so-called lead girls The substantial difference in their pay
further supports the finding.'
Genovese and Riti Encourage a Company Union
As stated above, after some of the girls had signed
authorization cards in favor of the Brewery Workers, that
union filed a representation, petition with the Board on
April 3 Kribs received it a day or two later and gathered
the girls to advise them of the fact. Ruth Sherrick testified
that on April 2, the day she signed a union card,
Supervisor Riti asked her during lunch who was "trying to
get this union in .' . she said she wanted to know who the
instigator of it was." Sherrick refused to say, but a week
later, again at lunch, still according to her testimony, Riti,
speaking to a group of girls, began to talk about the
possibility of "a company union . She said she
thought it would be better if we could get a company
union in, because we would have better chances, that if
we'd'try to get another union in Mr. Kribs wouldn't agree
to it, and she said if we got a company union in we would
get more raises and we would get profit sharing and cost
'Compare, Thompson Industries, 169 NLRB No 62
of living." There is like testimony by Tittle that during
lunch one day Riti told the girls "if we get a company
union in, that we could put anything in the contract that
we wanted " Riti testified for the Respondent, and her
only reference to this was. ". she [Sherrick] might have
overheard us talking about it . I told them that I
thought an independent union would be good because the
union we had in there once before, before I was a lead
lady, they wanted so much money to join, so much money
taken out for union dues and I couldn't see any benefit
out of that, so I just told them that I thought an
independent union was all right ...."
Another employee, Ruth Smith, also without
contradiction, testified that about this same time
Supervisor Genovese asked whether she had heard "some
of the girls were trying to get a union started," and when
Smith denied any knowledge, the supervisor added "If
they get a union, I hope it is a good one."
In mid-April, apparently only a few days after Riti's
talks about a company union, on a date which is not clear
on the record, there was a meeting of the employees in the
lunchroom during lunch hour, when a vote was taken on
the question whether to have a company union or an
outside union. Three employee witnesses - Tittle, Smith,
and Thurma Clifton - testified directly that both the
supervisors - Riti and Genovese - were present and
voted Tittle added it was Riti who suggested they do the
voting on slips of paper, and in fact distributed the
ballots. Riti testified she was not present in the lunchroom
that day, that she and Genovese had been asked "to sit
out of it." Genovese did not corroborate this bit about
being asked to sit out, and did not deny having
participated in the election; she said only there had been
an election and that Clifton had been elected to act on
behalf of the group towards forming a company union.
The vote was in favor of an independent union.4 It was
followed immediately by another election to choose a
person to move things forward and this was Thurma
Clifton
I credit the testimony of the three girls, undenied by
Genovese, that the two supervisors were present and
participated in the two elections The Respondent's desire
that the supervisors be permitted to take part in any such
activities is otherwise clear on the record. Riti's admitted
interest in fostering a company union further supports the
credibility holding. And Kribs' expressed pleasure at the
outcome removes any remaining doubt. He learned a few
days later that Clifton had been chosen to do whatever
was appropriate to further the new attitude of the
employees, and the very next morning called another
meeting. Smith recalled Kribs saying "he was pleased that
we voted for an independent union. And he gave her
[Clifton] a lawyer's name. He said this is a lawyer you
can contact or you can use one of your own." According
to Lois Huitt, another employee who was present- " . . he
said he greatly appreciated it, you know, that we had that
much feeling toward the company, you know, and that
much trust in it, and then he said if we did not know the
name of a lawyer, that his lawyer knew of a lawyer, that
Only one witness spoke of the results of the election , and she said it was
18 for and 18 agamst The General Counsel filed a motion after the close
of the hearing to correct the transcript in this respect so as to indicate 18
votes in favor and 2 against a company union, the Respondent opposes the
motion I. have no sufficient basis for altering the transcript as suggested
by the General Counsel, but it is nevertheless clear there was a
typographical error, for everyone agreed a majority of the vote was cast
against any "outside" union
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he handled an independent union before, and he would get
his lawyer to get in touch with him or give us the name of
that lawyer to get in touch with him " According to
Sherrick "Well, he told us that he could not have
anything to do with any union, that he could not aid or
abet us in any way, but that if we wanted the union, if we
wanted to form a company union, it would make him feel
good, but that he could not aid or abet us in any way in
this form of union "
Kribs' explanation of all this is that when Clifton told
him she had been chosen to help form an independent
union he spoke to his lawyer who recommended another
lawyer He denied telling the employees he was pleased,
and then added "I think it would be something less than
frank if I didn't say that they could see that I was
pleased, because at the conclusion of my remarks, I told
them that I felt honored as the head of our company that
they had that much confidence in the operating heads of
that company to want to form an independent union "
At this point Kribs told the employees which lawyer to
go to, and they did.
I find that by this entire course of conduct on the part
of the management representatives the Respondent
improperly interfered with its employees' statutory right
to engage in concerted and union activities free of any
intermeddling by the employer, and thereby violated the
prescriptions of the statute There is a consistent thread
seen from first to last in Kribs' injection of the
Company's desire to exclude any union concept from the
minds of his employees other than one limited to his small
group of workers Before June of 1968 some employees
may have-:cooled towards the IBEW, but there is no
indication any of them felt the need to deal collectively
with him The certification of the IBEW was less than
half a year old and the employees might as possibly have
had another change of heart before the certification year
ended. His unsolicited proposal that they form an
independent organization - election of spokesman for
collective-bargaining purposes was nothing less - was an
effective way of minimizing the danger they might again
turn to an affiliated organization for expert assistance.
They ignored his posted notice for 5 months, but he was
not satisfied to leave matters as they were, and again
gathered them expressly to urge concerted activities
limited to his own shop The boss is the boss, and
employees will more comfortably disregard him once than
twice He added persuasion to his request this time by
offering them money in the same breath. They used to
have to contribute out of their pockets for flowers, gifts,
or party funds; now they would use instead the funds from
the new food machines' and out-and-out gifts by the
employer based on hours worked This was not an
insubstantial inducement towards cooperation. They did as
he said, elected Evans, and Kribs proceeded to bargain
collectively on the narrow basis of his preference. But the
employer's choice may not supplant the choice of the
employees, and the Board has held that interference of
this kind violates the statute. Alberto Culver
Corporation, 136 NLRB 1432.
Twice - at Thanksgiving and at Christmas time -
company union bargaining took place Not all of_ the
employees were satisfied with the arrangement and in
March some started to join the Brewery Workers. And
again the Company moved to dissuade the overall group
from action in that direction. Now Kribs started the girls
thinking in terms of accepting supervisors as participants
in their affairs If Genovese and Riti were really only
rank-and-filers there was no need for him to gather the
employees and suggest - as he himself admitted - that
the supervisors could join the Union if the "company and
union" agreed. The two women had voted a year before
without fuss by anyone Distraction of the employees
away from an inside union and toward a company union
could as well be accomplished by the supervisors as by
Kribs himself. And this is exactly what Riti did in the
lunchroom, when, to be more certain the girls would vote
as the Company wished, she told them there would be
economic improvements in their working conditions this
way and not through a regular labor organization
Participation by both supervisors in the resultant
lunchroom elections, of course, with them casting ballots,
added greater assurance of the outcome
It must be inferred that all of this was done with Kribs'
blessing, for when it was all over he called his final
meeting to express his satisfaction and pleasure And then,
telling them which lawyer to go to - on recommendation
of the Company's own counsel - again with nobody
asking him to intervene, was the last act of interference
In the total circumstances of this case I find that
Supervisor Genovese's inquiry of employee Ruth Smith
concerning what she knew about union activities going on,
Supervisor Riti's interrogation of Ruth Sherrick as to who
the instigator of the outside union was, Riti's repeated
urgings that the employees favor a company union
coupled with promises of economic benefits if they moved
in that direction, and participation by both supervisors in
the employee election, all constituted violations of Section
8(a)(1) of the Act for which the Respondent is
accountable 5 I also find that Kribs' pattern of conduct,
starting in June of 1968 with the posting of the invitation
to elect a single spokesman, and continuing through his
April 1969 recommendation of a lawyer to help form a
company union, was unlawful interference with the
employees' Section 7 rights and unfair labor practices
within the meaning of Section 8(a)(1).
Alleged Violations of Section 8(a)(3)
During the lunch hour on Tuesday, April 15, the
Company posted a notice in the plant advising the
employees that because of an unexpected substantial
reduction of available work the force was being reduced
and listing six girls to be released at the end of the next
workday, Wednesday. The complaint alleges that two of
the persons included in the layoff, Jo Ann Ward and
Mary Ann Collins, were selected for discharge because of
their activities on behalf of the Brewery Workers and that
thereby the Respondent violated Section 8(a)(3) of the
Act. Ward and Collins are sisters Agnes Bridges, a third
sister, was discharged when she reported for work on
Thursday morning, April 17, and it is said her release was
motivated by like antiunion animus and therefore also an
unfair labor practice
The evidence shows, and the fact is not disputed by the
General Counsel, that on Monday, April 14, Kribs learned
that defective dyes and consequently unusable production
parts, immediately reduced the amount of work that
would be available for some time and that a
reduction-in-force was economically dictated. The three
girls - Ward, Collins,,and Bridges - had signed Brewery
Workers cards. It is a contention of the prosecution that
the Respondent knew. this and deliberately released the
three for such reason. Denying any knowledge of their
union activities, Kribs testified he selected all three
'Struksnes Construction Co, 148 NLRB 1368
RUSSELL S KRIBS ASSOCIATES, INC
primarily because they had the worst absentee records of
any employees then on the payroll, that with the exception
of Collins he started at the bottom of the seniority lists
and worked his way upwards Collins, he said, although
more than 90 days with the Company and therefore not a
probationary employee, was released because she had been
absent more than anyone else There is presented a
question of fact as to motivation, an issue in which all
relevant factors are to be deemed pertinent The
affirmative burden of proving, by a preponderance of the
substantial evidence on the record as a whole, that the
discharges were illegal, rests upon the General Counsel,
and requires convincing proof, both that the Respondent
knew of their having signed cards and that it was for this
reason that it released them
There was a meeting at the home of Carolyn Tittle on
March 28, where the three sisters signed Brewery Workers
cards Melton and Sherrick testified that they too signed
union cards At the hearing Bridges named five others
who signed cards at her request - Linda Gilbert Janice
Collins, Shirley Goodson's mother, and Dolores Toney
How many others, if any, also signed union cards, the
record does not show
There is no evidence that either Ward or Mary Ann
Collins solicited anyone else to join the Union, or that
they engaged in any union activities in the plant at all
Ward testified she never spoke about the Union at work
Bridges did talk to other employees during lunch and
offered them cards to sign She testified she never spoke
of the Union during working hours and that so far as she
believed no supervisor was aware of her sentiments, and
that this was true also with respect to the "lead girls,"
Genovese and Riti Melton recalled that when she heard
Bridges invite other employees to sign "she [Bridges] told
them to sign it and not let certain persons see them sign
them "
Tittle, at whose home the employees met twice to
further the Brewery Workers' campaign, said that next to
Bridges she and Nancy Counts were also active in trying
to organize the employees
When Ward and Collins saw their names on the layoff
notice at I o'clock in the afternoon of the 14th, they
raised a row In and out of the office for about half an
hour, they demanded to be paid off immediately,
complaining in loud voices Told that the regular payday
was Friday and that they should go back to work at least
until Wednesday evening, they persisted, Ward raising her
voice and threatening to call the police Finally, Ward
spoke to Kribs and insulted him directly, both girls
refused to sign statements that they were quitting, which
would have made it possible, within the established rules,
for them to receive Immediate checks Very angry, they
left and never returned
Bridges last worked on Friday, April it During the
weekend there was a death in her husband's family and on
Monday morning she came to the plant to tell the office
secretary she had to go out of state for the funeral and
needed to be paid for the 2 days of work, Thursday and
Friday, of the previous week The payroll period is
Thursday morning through the following Wednesday, with
payment made on Friday evenings The payroll clerk said
he was not authorized to sign checks Bridges then left for
a few hours and returned to ask for her check again Now
she was told Kribs had said she could not be paid until the
end of the week Before leaving she told Genovese, the
supervisor, and Hercules, the plant manager, she was
going to a funeral and would be back Thursday or Friday
1113
When Bridges returned on Thursday morning her card
was missing from the rack There is only slight variance
between her testimony and that of Kribs as to their final
conversation According to her, when she asked why her
card was not there, he told her she had quit He then
asked that she wait while he left the room, and when he
returned she asked was she fired , but he did not answer
Bridges then testified that Kribs went on to say "there
was something about some contracts that didn't go
through and he didn't have no work " She asked should
she look for another job, and he finally said yes
Kribs' version is that when she came to his office he
asked had she quit, and when she said no, he went into
the office to check on this, only to discover there had been
confusion at the time of her departure Monday morning
He added that he then explained to Bridges that he had
understood she had quit, but that in any event had he
known she intended to return he would only have added
her name to the layoff notice list on Tuesday because her
attendance record was unsatisfactory Bridges left for
good at that time
Both parties argue from the facts of relative seniority,
the General Counsel to prove that Collins was
purposefully selected out of turn and the Respondent to
help establish its affirmative defense There are also
records of hours worked, with a percentage summary
supplied by the Respondent and not questioned as to its
accurate computation by the General Counsel On the
evidentiary question of what in fact were the respective
seniority dates of the employees involved, confusing
exhibits were first placed in evidence but the matter was
eventually fixed with finality by stipulation The General
Counsel started by offering all of the Company payroll
records, produced by the Respondent under subpoena, he
then selected only those records pertaining to forty
employees and discarded the rest Direct examination of
Kribs and his office bookkeeper, Crabtree, both called as
witnesses by the Government, showed that the payroll
records as they exist are not reliable, that neither of the
witnesses was sure as to the meaning of the various
entries, that they had been made in part by other persons,
and that these records, at least, were not enough, with
these witnesses, to establish the correct seniority dates
The Respondent then placed in the hands of the General
Counsel all records which had been subpoenaed, including
the original timecards for all work actually performed
After examining all the records, the General Counsel
agreed with counsel for the Respondent that a written
document, received in evidence as General Counsel's
Exhibit 19, correctly lists all employees at work
immediately before the April 15 layoff, and their
respective seniority dates
To support its assertion that Kribs did consider
seniority in his actions, the Respondent relies on this
stipulation of fact In disputing the assertion, the General
Counsel, in his brief, points to certain other seniority lists
prepared by the Company from time to time, and argues
Kribs used another list at the time, an earlier one dated
March 20, albeit it cannot be reconciled with the seniority
dates as agreed upon between the parties at the hearing
Cursory examination of the periodic seniority lists made
by the Company over a long period - perhaps one each
month - shows they were haphazard and incorrect in
many respects, and that like other of its records not
reliable for final information of this kind And while Kribs
at one point of his testimony did say it "would be a fair
assumption" he did use the document dated March 20
when trying to decide which employees to lay off in April,
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a fairer reading of his total testimony on this point is that
he was not at all sure. "A: No, I could not commit
positively, sir. Q: You don't know which list you used,
then, sir" A: No."
Justice dictates that 'in the circumstances of the record
as made, I look to the stipulated seniority dates in
appraising the merits of the conflicting contentions.
On the record in its entirety, including particularly the
extent of union activity, the evidence of company
knowledge, and the persuasiveness of the affirmative
defense, I conclude there is insufficient proof to warrant
an affirmative finding that these girls were discharged
because of their activities in favor of the Brewery
Workers. At least 10 persons signed Brewery Workers
cards. There is no evidence worthy of note that anyone in
the company hierarchy knew Ward or Collins had signed.
The implied contention that as to these, in a small plant,
it must be inferred management knew these things does
not really help the complaint, for in that case the
Respondent must also be charged with notice that Melton,
Toney, and Shirley Goodson had so signed. They were
also discharged that day but their names do not appear in
the complaint Nancy Counts was identified on the record
as one of the activists, like Bridges, but she was retained
although junior to Collins
This entire picture starts with the fact a number of
workers had to be released, and Ward and Bridges
crowded the bottom of the seniority list. It is true Kribs
said he followed seniority, but there was no obligation
upon him to do so, and when employees have worked so
short a time - Ward only one month and Bridges little
more - seniority begins to lose meaning. In his brief the
General Counsel argues Kribs only had to reduce the
complement by six and therefore points an especially
accusing finger towards Bridges, who became number
seven But Kribs' testimony is as much a statement that
he first considered the number of employees who could be
used, and then looked around for which to release. The
fact is Bridges was not there when he surveyed matters
There is no real reason for being positive he would not
have added her to the list - as he said at the hearing,
what with her very inferior seniority position, to say
nothing of her absentee record, as will appear below.
Two incidents said to constitute proof that the
Company knew of Bridges' union activities - through
statements by the two supervisors Riti and Genovese -
are the weakest of reeds. Bridges used to ride to and from
work with Genovese. Going home on the last day she
worked, Friday, Genovese was "kind of quiet," and her
mother, also traveling with them, asked the daughter what
was wrong Genovese said "Kribs was on the war path
again," and when her mother asked why did she not
change jobs, answered "she couldn't make the money
there the only thing that place needs is a union "
Bridges chimed in with "it sure does." This was Genovese
talking prounion, not Bridges. At one of the employee
meetings where Kribs spoke about supervisors
participating in union affairs, Supervisor Riti is said to
have shown company knowledge of Bridges' activities.
Two witnesses quoted Riti, but not the same way.
According to Carolyn Tittle, she was standing with
Bridges and Nancy Counts listening to Kribs, and Bridges
said "she didn't think we should tell the supervisors about
the Union." Riti , who was 5 feet away, "looked over at
Agnes Bridges and she said she thought she knew one of
the girls that was trying to get a union in." As Bridges
recalled it, Tittle asked her should they speak to
supervisors, she [Bridges] answered no, and then Riti
turned to them and asked: "What's that about a union?"
Bridges answered it was none of her business.
Whatever weight might be accorded these ambiguous
phrases from Riti - assuming one or the other quotation
is correct, the matter must be considered together with
one other significant fact, and this final one applies to all
three sisters. Of all 36 employees in the plant these three
were the most lax in coming to work. The overall average
attendance at all scheduled work hours was 88 percent;
ignoring the three sisters the average was 90 percent.
Bridges' average was 75 percent, Collins' 69 percent, and
Ward's 67 percent. All others were higher These facts, no
less pertinent to the question of motivation, rest on no
ambiguous testimony or any inference, and lend very solid
support to the Respondent's asserted affirmative defense.
When a substantial reduction in force is economically
required - as was true here - selection on the basis of
poor attendance is rational and defensible conduct.
In appraising the evidence on this discharge aspect of
the case, I have considered all relevant factors, including
not only all the foregoing but many other minor matters
not quite important enough to warrant restatement here.
And this includes the fact that Kribs did not select Tittle
and Counts for discharge, both more active than Collins
in union affairs, despite the fact both were junior to
Collins. All things considered, I shall recommend
dismissal of the complaint with respect to Ward, Collins
and Bridges.
IV. THE REMEDY
The Respondent mu 't be ordered to cease and desist
from the unlawful conduct here found to have occurred. It
must cease suggesting that the employees select a
spokesman to deal with the employer concerning
conditions of employment on behalf of the employee
group, or suggesting that the employees form a company
union, it must cease dealing with any person so selected at
the Respondent's urgings
Although the complaint literally alleges that an
organization named Employees of Russell S. Kribs
Associates, Inc., came into existence and is a union, the
evidence does not justify such a conclusion, and the
General Counsel seems to have abandoned that contention
in his brief. This allegation really relates to what was no
more than a money fund, consisting of the proceeds from
the soft drink and food vending machines and the 1-cent
per hour-worked contribution by the employer. It does
appear in this case that the Respondent obliquely relied
upon establishment and continued existence of this fund as
an indirect method for prevailing upon the employees first
to select a representative and later to form a company
union, and this was part and parcel of the unlawful
technique of suggesting and fostering a company union
Of itself, however, a fund established in this manner for
purposes of buying flowers for employees, gifts when
appropriate, or holding parties, is not inappropriate under
this statute There is no occasion or justification,
therefore, for ordering discontinuance of that arrangement
because of the unfair labor practices found. The substance
of the restraining order herein provided is that the
Respondent must not hereafter use the existence of that
fund, as it must not use any other technique, for
suggesting and encouraging establishment of a company
union.
RUSSELL S. KRIBS ASSOCIATES, INC. 1115
V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following
CONCLUSIONS OF LAW
I Respondent is engaged in commerce within the
meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act
3. By interrogating employees concerning their union
activities, by promising economic benefits to the
employees on condition that they form a company union,
and by suggesting that the employees elect an indivudual
spokesman to act collectively on their behalf or form a
company union to bargain with the employer thereafter,
the Respondent has interfered with the rights of its
employees to self-organization and to bargain through
representatives of their own choosing, 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act it is hereby ordered that Russell S. Kribs
Associates, Inc., St Louis, Missouri, its officers, agents,
successors and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union activities, promising employees economic benefits in
their working conditions on condition that they organize a
company union , suggesting that employees select a
spokesman to act on their behalf, or form a company
union for purposes of bargaining with the employer, or in
fact bargaining with such a spokesman so selected, or in
any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right to engage,
or to refrain from engaging in, any and all the activities
specified in Section 7 of the Act.
2. Take the following affirmative action, which I find
will effectuate the policies of the Act.
(a) Post at its place of business in St. Louis, Missouri,
copies of the attached notice marked "Appendix."6 Copies
of said notice, to be furnished by the Regional Director
for Region 14, shall, after being signed by the
Respondent's representative, be posted by Respondent
immediately upon receipt thereof and maintained by it for
60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or
covered by any other material.
'in the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
(b) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.'
It is hereby recommended that the complaint be
dismissed insofar as it alleges the unlawful discharge of
Agnes Bridges, Mary Ann Collins, and Jo Ann Ward.
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 14, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT question our employees concerning
their union activities or promise them improved
working conditions in return for forming a company
union
WE WILL NOT interfere with the rights of our
employees to select a union of their choice by
suggesting that they elect a spokesman or representative
to act on their behalf to deal with the company on any
matters concerning their employment, or by suggesting
that they form a company union instead of bargaining
with the company through any other union.
WE WILL NOT negotiate or otherwise deal with any
spokesman or representative selected by the employees
in consequence of our suggestion.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce our employees in the exercise of
the right to self-organization, to form labor
organizations, to join or assist International Union of
United Brewery, Flour, Cereal, Soft Drink and
Distillery Workers of America, AFL-CIO, Local Union
No. 303, 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 engaging in any or all
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 in
conformity with Section 8(a)(3) of the Act, as amended.
Dated By
RUSSELL S. KRIBS
ASSOCIATES, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
11 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Any questions concerning this notice or compliance 1040 Boatmen's Bank Building, 314 North Broadway, St.
with its provisions , may be directed to the Board's Office, Louis, Missouri 63102, Telephone 314-622-4167