Swift & Co.

National Labor Relations Board - Board Decisions

May 20, 1958

120 N.L.R.B. 1038 (N.L.R.B. 1958)

1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Petitioner's right to negotiate new wage increases at other
plants of the Employer and the Petitioner has successfully negotiated
wage adjustments during the term of the national agreement. In our
opinion, the Petitioner's statements represent, in part, its interpreta-
tion of the agreement. Both the Employer and the Petitioner had the
right to, and did over a period of time, publicize their respective
and differing interpretations. Accordingly, we find, in agreement
with the Regional Director, that the remarks did not mislead the
employees so as to vitiate their free choice in selecting a bargaining'
representative.'
In view of the foregoing and the entire record, we hereby overrule
the Employer's objections and shall certify the Petitioner as the bar-
gaining representative of the employees in the appropriate unit.
[The Board certified International Union of Electrical, Radio and
Machine Workers, AFL-CIO, as the designated collective-bargaining
representative of the employees at the Industry Control plant in
Roanoke County, Virginia, in the unit found appropriate.]
CHAIRMAN LEEDOM and MEMBER JENKINS took no part i n the con-
sideration of the above Decision and Certification of Representatives.
2 See Allis-Chalmers Mam tfacturing Co., 117 NLRB 744, 748.
Plankinton Packing Company, a division of Swift & Co. and
Office Employees International Union, Local 9, AFL-CIO. Cases
Nos. 13-CA-2452 and 13-CA-2471. May 20, 1958
DECISION AND ORDER
On October 4, Trial Examiner Max M. Goldman 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, and a supporting brief. The
Respondent's request for oral argument is denied, as the record, in-
cluding the exceptions and brief, adequately present the issues and
positions of the parties.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
120 NLRB No. 143.
PLANKINTON PACKING COMPANY 1039
mendations of the Trial Examiner only insofar as they are consistent
with the Decision and Order.
1. The Board unanimously agrees with the Trial Examiner that
the Respondent, through its plant superintendent, Lavey, independ-
ently violated Section 8 (a) (1) of the Act by : (1) telling employee
Powers shortly before October 30, 1956, that continued union activity
would do him no good and would therefore be harmful to him; (2)
advising employee Powers in February 1957 that he had been passed
over for a position in the Respondent's sales department because of
his union activities; (3) stating to employee Powers in March 1957
that if Powers wanted a recommendation from Respondent, he had
better cease talking about the Union.
2. The Board unanimously disagrees with the Trial Examiner's
finding that the conversation between Peot, head of the Respondent's
time office, and employee Krenz constituted unlawful interrogation in
violation of Section 8 (a) (1). As set forth in the Intermediate Re-
port, when Krenz was elected to the Union's bargaining committee,
Peot congratulated her on her election, and then-asked if he had dis-
pleased her in any way. She replied that her interest in the Union
stemmed from a hope for automatic wage increases, and not from a
hostility to Peot, whom, she said, had always been "a fine boss." The
conversation closed with Peot's indication to Krenz that her union
activity would in no way prejudice her standing as an employee.
Based on our analysis of the record as a whole, we find the conversation
between Krenz and Peot free of unlawful interrogation and not vio-
lative of Section 8 (a) (1) of the Act.' Accordingly, we shall dismiss
that portion of the complaint.
3. The Trial Examiner found that the layoff of employee Thomas
Powers on March 22, 1957, was motivated by antiunion, rather than
economic, considerations and that the Respondent thereby violated
Section 8 (a) (3) of the Act. The Board does not agree.
The record shows that Powers was hired in October 1953 as a sal-
aried clerk in the Respondent's time office. It also indicates that he
was a capable employee whose work performance the Respondent
considered satisfactory and who was being considered for promotion
to a supervisory position. In this connection, he was enrolled, at
company expense, at the Respondent's 6-month management training
course.
Early in 1956 the Union began its organizational campaign among
Respondent's office employees, and Powers became active in that cam-
paign. At various times thereafter Plant Superintendent Lavey
sought to discourage him from these efforts. The general tenor of the
dissuasion was to the effect that, in the superintendent's opinion, Pow-
ers had potential for promotion to supervisory status; and, since, in
1 See Mtilwaukee Electric Tool Corporation, 110 NLRB 977, 980.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the superintendent's view, one could not be loyal to the union and
management at the same time, Powers' active union adherence would
not further his promotional possibilities. Shortly before the Board-
ordered election on October 30, 1956, the plant superintendent told
Powers that it would not do him "any good" to participate in union
activities, as Respondent did not seek union-minded men in managerial
positions'
On January 1, 1958, pursuant to home-office instructions, Respond-
ent commenced a 5-percent plantwide reduction in its salaried per-
sonnel force. Thereafter, sometime in February, the superintendent
explained to Powers that, because he had the least seniority in the
time office where a reduction in force was indicated, he would be laid
.off sometime in March.' Toward the middle of March 1957, Super-
intendent Lavey informed Powers that he would be laid off on March
'22, when he was in fact terminated.4 The assigned reason was the
-planned reduction in force.
The Trial Examiner observed from the above that Powers, an em-
-ployee of promise, was held in high regard by the Respondent, and
-indeed was considered for future promotion to managerial status.
-He reasoned that Powers lost his chances for future promotion by
-activity on behalf of the Union and Powers' loss of management
potential made him subject to the economic reduction of salaried per-
sonnel. Accordingly, the Trial Examiner found that, but for loss of
this potential because of union activity Powers would have been re-
tained in Respondent's employ for his potential values, and he there-
fore concluded that Powers was discriminatorily laid off in violation
of Section 8 (a) (3) of the Act. The Board disagrees.
At the outset, we cannot agree with the Trial Examiner that Powers
"lost his status of having management potential." Indeed, in our
view of the record, Powers had no status of management potential
to lose. There is no substantial evidence that Respondent demon-
strably marked and noted Powers a potential supervisor so as to aline
his interests with management. The statements by the plant superin-
tendent that Powers had possibilities as a supervisor are too casual
to warrant a finding that Respondent considered Powers in a category
separate and distinct from rank-and-file employees. Based on our
analysis of the record as a whole, we find that Powers was at all times
herein material an employee subject to the protective guarantees of
Section 7 of the Act. However, though we find Powers an employee
2 This statement the Board unanimously has tound to be violative of Section 8 (a) (1)
8 At the same meeting , the superintendent informed Powers that he had recommended
Powers for a position in Respondent's sales office, but that Powers had been passed over
because of his union activities. We have tound this statement violative of -Section 8
(a) (1).
4 Two days • before his termination, the superintendent told Powers that if he wished
a recommendation from Respondent, he had best stop talking about the union, a state-
ment we have above found violative of Section 8 (a) (1)
PLANKINTON PACKING COMPANY 1041
within the meaning of the Act, we do not believe that he was dis-
criminatorily laid off by the Respondent.
As noted above, Respondent attributed its layoff of Powers to an
economic reduction in force instituted January 1, 1957, to effect a
5-percent reduction in salaried personnel. In the implementation of
this reduction in the time office, Powers, who had the least seniority
of any full-time employee, was properly selected for layoff and ter-
minated. Since the reduction began, the Respondent laid off at least
3 other salaried employees; 2 prior to Powers' layoff and 1 subsequent
to his termination. Moreover, even before this particular reduction,
the number of salaried personnel on Respondent's payroll and in the
time office had steadily decreased.' In short, the entire record shows,
and none of the parties contradict, that the reduction in force insti-
tuted on January 1, 1957, was for bona fide business reasons. In this
connection, it is undisputed, and indeed Powers affirms, that he had the
least seniority in his department. Secondly, another clerk, union
witness Hays, was, according to his own testimony, laid off as he had
the least seniority in his department.' Thirdly, as in the case of Hays,
Powers was offered employment in another department, but he indi-
cated lack of interest in this possibility. Fourthly, we note that the
vacancy created by Powers' layoff has not been filled.
In short, we are satisfied that Respondent instituted the layoffs
herein for the valid business purpose of reducing excess personnel.
Moreover, the entire record indicates, and we find, that the economic
reduction was nondiscriminatorily implemented throughout Respond-
ent's plant. Therefore, we do not agree with the Trial Examiner's
conclusion that, but for his union activities, Powers would not have
been discharged.' Accordingly, as we find the General Counsel has
failed to prove that the layoff of Powers was discriminatorily moti-
vated, we shall dismiss that portion of the complaint alleging that his
termination violated Section 8 (a) (3) of the Act.'
5 Thus, on a plantwide basis, the number of salaried personnel had decreased from
165 in April 1955 to 142 in July 1957. The time office, where Powers was employed, was
no exception to this gradual contraction , for the number of employees in that office
decreased from 8 full -time employees in April 1955 to 5 full -time and 1 part-time em-
ployees in July 1957 The reduction in torte in the time office was attributed by Respond-
ent to new machinery, changes in methods of keeping records, and a general rearrange-
ment of work distribution
6 Though there is no specific finding that Respondent computes seniority on a depart-
mental basis , this would seem the logical conclusion from the testimony of Respondent's
superintendent, Powers, and union witness Hays.
7 Part of the Trial Examiner ' s conclusion is based on a comparison of the layoff of
Powers and the retention of employee Wolfe, a clerk in aonther department , and a class-
mate at Respondent 's management training course with Powers. We find this compari
son of negligible value The record shows no couelation between their skills, interchange-
ability, or seniority status to furnish meaning to a comparison of their employment etatus.
Indeed , the sole record relationship between the two is the suggestion by a union business
representative and Powers himself that Wolfe would be the more logical candidate than
Powers for layoff.
8 See Northern Fruit 'Company, Inc , 108 NLRB 1017 ; Rugcrofters of Puerto Rico,
Inc, 112 NLRB 724
483142-59-vol. 120-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Board unanimously agrees with the Trial Examiner that
on April 5, 1957, the Respondent refused to bargain with the Union
shortly after the Union was certified as majority representative of
the Respondent's office clerical employees in violation of Section 8
(a) (5) of the Act. The Respondent does not dispute the majority
status of the certified Union but defends the admitted refusal to
bargain by arguing that the Board's prior unit determination was
arbitrary and capricious and that it was not obliged to bargain with
the Union in the resulting inappropriate unit. We find the Respond-
ent's contention without merit. We see no need to revise our unit
determination which has now been considered for the third time,"
nor has the Respondent shown any change of circumstances to warrant
a- different unit finding at this time.10
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the Act, the National Labor Relations Board orders that Plank-
inton Packing Company, a division of Swift & Co., Milwaukee,
Wisconsin, its officers, agents, successors,, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Office Employees Inter-
national Union, Local 9, AFL-CIO, as the exclusive representative
of all its employees in the appropriate unit described in the conclu-
sions of law of the Intermediate Report;
(b) Interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act by: (1)
Threatening an employee that union activities would be harmful;
(2) advising an employee that he was passed over for other employ-
ment because of his union activities; (3) threatening an employee
that he would not get a recommendation if he talked about the Union;
and (4) refusing to bargain.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights of self-organization, to
form, to join, to assist labor organizations, including the above-
named labor organization, to bargain collectively through represent-
atives of their own choosing, to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection,
or to refrain from 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, as authorized
in Section 8 (a) (3) of the Act.
, 9Plankinton Packing Company ( Division of Swift & Co.), 116 NLRB 1225; 117 NLRB.
399.
10 The Pacific Telephone and Telegraph Company, et at., 113 NLRB 478.
PLANKINTON PACKING COMPANY 1043
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the above-named or-
ganization as the exclusive representative of the employees in the
above-described appropriate unit, and, if an agreement is reached,
embody such understanding in a signed agreement.
(b) Post at its plant at Milwaukee, Wisconsin, copies of the notice
attached hereto marked "Appendix." 11 Copies of such notices to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the Respondent's authorized representative,
be posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of at least 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.
(c) Notify the Regional Director for the Thirteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in all other respects be,
and it hereby is, dismissed.
MEMBERS BEAN and JENKINS, dissenting in part :
We agree with our colleagues of the majority in finding that the
Respondent violated Section 8 (a) (1) and (5) of the Act.
In addition, the record satisfies us, as it did the Trial Examiner,
that the Respondent violated Section 8 (a) (3) by laying Powers off
on March_ 22, 1957. The Respondent had warned Powers on many
occasions that his union activity as an employee hindered his pro-
motion to a supervisory or managerial position. Significantly, in
February 1957 the Respondent further violated the Act by passing
over Powers as a candidate for promotion to the position of assistant
purchasing agent because of his union activity, as Plant Superin-
tendent Lavey informed Powers. .
On these facts we think the Trial Examiner correctly found that the
Respondent would not have laid Powers off but for his union activity.
Had Powers yielded to the Respondent's unlawful attempts to force
him to abandon his union activities, he would, like employee Wolfe,
have been retained because of his outstanding potential value to the
Respondent. We fear that the majority fell into error by losing sight
of this crucial fact while debating as to whether or not Powers had
managerial rather than employee status.
u In the event that this Order is enforced . by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we would adopt the Intermediate Report in its en-
tirety, except for the 8 (a) (1) finding based on the conversation
between Peotand Krenz.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, we, hereby notify our employees that :
WE WILL bargain collectively upon request, with Office Em-
ployees International Union, Local 9, AFL-CIO, as the exclusive
representative of all the employees in the bargaining unit
described below with respect to rates of pay, wages, hours of
employment, or other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed
agreement. The bargaining unit is:
All office clerical employees including order keeper, record
keeper, and second stenographer in the plant sales department,
clerical employees in the time and employment offices (payroll
clerks, including the one who also operates the addressograph
machine, comptometer operators, Margaret Albert, and Miss
Hankin), clerical employees in the standards department (comp-
tometer operators, typist, secretary to department head, labor
distribution clerk, the employee who handles the plant salary
ledger, and the other departmental clerks), but excluding plant
manager or superintendent, confidential secretary to the plant
manager, auditor-office manager, confidential clerk or secretary
to the auditor-office manager, assistant office manager, chief
clerk, plant sales head, city sales head, assistant sales heads in the
sales departments, all salesmen, department heads in the beef,
lamb, veal, provision, table-ready meats, byproducts, advertising,
credit, purchasing, transportation, industrial relations, and
departmental departments, section heads in the veal, lamb, primal
cut, boneless beef cutting, fresh and frozen pork and- variety
meats, smoked meats and sliced bacon, sweet pickle, and dry salt
and lard sections, head cashier, invoice discrepancy investigator,
beef, lamb, veal, and the smoked meat promotion men, all buyers,
graders, and nurses, plant superintendent and assistant plant
superintendent, confidential clerk and confidential secretary to
the plant superintendent, chairman of the suggestion committee,
safety director, plant protection and cafeteria supervisor, division
superintendents, employment manager-head timekeeper, head
and assistant head of the standards department, head of the
statistical control and analysis department, head of the training
PLANKINTON PACKING COMPANY 1045
department, pickle making foreman, all technical employees not
specifically mentioned herein, production and maintenance em-'
ployees, guards, foremen and assistant foremen, all other super-
visors as defined in the Act, confidential secretary to the plant
sales head, confidential secretary to the city sales head, head of the
special cutting room, head of the dairy and poultry department,
assistant head of the purchasing department, head of the voucher
department, head of the cost figuring for cattle, calves, and lamb
department, head of the cost figuring for hogs department,
assistant head of the credit department, assistant head of the
transportation department, chauffeur, pickle maker, Charles
Jones, credit union employees, time-study engineers, draftsman-
estimator, and statistical quality control inspectors.
WE WILL NOT threaten our employees that union activities will
be harmful in their relationship with the Company, advise our
employees that they were passed over for other employment
because of their union activities, and threaten our employees that
they would not get a recommendation if they talk about the above-
named labor organization or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to join, to form, to assist any 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 to refrain from
any or all such activities.
All our, employees are free to join, form, or assist any labor
organization, or to engage in any self-organization or other concerted
activities for the purpose of collective bargaining or other mutual aid,
or protection, or. to refrain from any or all such activities, except to
the extent that such rights are affected by an agreement made in
conformity with Section 8 (a) (3) of the Act.
PLANKINTON PACKING COMPANY, A
DIVISION OF SWIFT & CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed March 27 and April 12, 1957, by Office Employees International
Union, Local 9, AFL-CIO, herein called the Union, the General Counsel by the
Regional Director for the Thirteenth Region (Chicago, Illinois) of the National
Labor Relations Board issued a consolidated complaint dated June 19, 1957 , against
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plankinton Packing Company, a division of Swift & Co., herein called the Respondent,
alleging that the Respondent- had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1), (3) and (5),
and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat.
136, herein called the Act. Copies of the complaint and the charges, together with
an order consolidating the cases and notice of hearing were served upon the
Respondent and the Union.
With respect to unfair labor practices, the complaint alleges that the Respondent,
in October 1956, and in February, March, and April 1957, by engaging in certain
conduct interfered with, restrained, and coerced its employees; on March 22, 1957,
discriminatorily laid off or discharged Thomas E. Powers; and on and after April
5, 1957, unlawfully refused to bargain. The Respondent in its answer denies engaging
in unfair labor practices.
Pursuant to notice, a hearing was held on July 23 and 24, 1957, at Milwaukee,
Wisconsin, before the duly designated Trial Examiner. The parties did not present
oral argument, but the General Counsel and the Respondent filed briefs.'
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent maintains an office and plant at Milwaukee, Wisconsin, where it
is engaged in the processing and packing of meats. At this plant the Respondent
annually purchases and receives materials, supplies, and equipment valued in excess
of $10,000,000, from points outside the State of Wisconsin. The Respondent also
sells and ships finished products to points outside the State of Wisconsin valued in
excess of $20,000 annually. It is found that the Respondent is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Office Employees International Union, Local 9, AFL-CIO, is a labor organization
within the meaning of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
After an election was conducted pursuant to the Board's Decision and Direction
of Election in Case No. 13-RC-4897,2 the Union was certified on March 6, 1957, as
exclusive representative under Section 9 (a) of the Act in the following unit which
the Board found to be appropriate under Section 9 (b) of the Act.
All office clerical employees including order keeper, record keeper, and second
stenographer in the plant sales department, clerical employees in the time and
employment offices (payroll clerks, including the one who also operates the
addressograph machine, comptometer operators, Margaret Albert, and Miss
Hankin), clerical employees in the standards department (comptometer opera-
tors, typist, secretary to department head, labor distribution clerk, the employee
who handles the plant salary ledger, and the other departmental clerks), but
excluding plant manager or superintendent, confidential secretary to the plant
manager, auditor-office manager, confidential clerk or secretary to the auditor-
office manager, assistant office manager, chief clerk, plant sales head, city sales
head, assistant sales heads in the sales departments, all salesmen, department
heads in the beef, lamb, veal, provision, table-ready meats, byproducts, advertis-
- ing, credit, purchasing, transportation, industrial relations, and departmental
1 The Respondent also proposed certain findings and conclusions to the effect that it
did not engage in violations of the Act For the reasons appearing hereafter these pro-
posals are rejected
After the close of the hearing, the Respondent also renewed motions to dismiss the
complaint on the grounds that: (1) The charges do not specify Independent violations
of Section 8 (a) (1) as alleged In the complaint; and (2) the complaint was issued
prior to a full investigation of the matter as required by Section 102 15 of the Rules and
Regulations and Section 101 4 of the Statements of Procedure, Series 6, as amended.
These motions have been ruled upon previously and it,is not found necessary to rule
upon these matters again
2 116 NLRB 1225 and 117 NLRB 399.
PLANKINTON PACKING COMPANY 1047
departments, section heads in the veal, lamb, primal cut, boneless beef cutting,
fresh and frozen pork and variety meats, smoked meats and sliced bacon, sweet
pickle, and dry salt and lard sections, head cashier, invoice discrepancy investiga-
tor, beef, lamb, veal, and the smoked meat promotion men, all buyers, graders,
and nurses , plant superintendent and assistant plant superintendent , confidential
clerk and confidential secretary to the plant superintendent, chairman of the sug-
gestion committee, safety director, plant protection and cafeteria supervisor,
division superintendents , employment manager-head timekeeper , head and as-
sistant head of the standards department, head of the statistical control and
analysis department, head of the training department, pickle making foreman,
all technical employees not specifically mentioned herein, production and main-
tenance employees , guards, foremen and assistant foremen, all other supervisors
as defined in the Act, confidential secretary to the plant sales head, confidential
secretary to the city sales head, head of the special cutting room, head of the
dairy and poultry department, assistant head of the purchasing department, head
of the voucher department, head of the cost figuring for cattle, calves, and lamb
department, head of the cost figuring for hogs department, assistant head of the
credit department, assistant head of the transportation department, chauffeur,
pickle maker , Charles Jones, credit union employees , time-study engineers,
draftsman-estimator , and statistical quality control inspectors.
On March 29, the Union requested collective bargaining and on April 5, the
Respondent declined the Union 's request , explaining that it was contesting the Board's
finding as to the appropriate unit.
It is found in accordance with the Board 's prior determination in the representation
proceeding that the unit described above is appropriate within the meaning of Section
9 (b) of the Act. It is further found in accordance with the certification that the
Union was , on March 6 , 1957, and at all times thereafter has been , the exclusive
representative of the employees - in the aforesaid unit within the meaning of Section
9 (a) of the Act.
Accordingly it is found that beginning April 5, 1957 , the Respondent refused to
bargain in violation of Section 8 (a) (5) of the Act.
B. Interference, restraint, kind coercion; and the discrimination
1. The events
After some preliminary steps toward organizing the Respondent 's office employees
early in 1956 , the Union held meetings and sent mail to the employees . In February,
immediately after the first union letters reached the employees ' homes, Thomas E.
Powers, a timekeeper -payroll clerk and the alleged discriminatee , was called into the
office of Plant Superintendent Harry R. Lavey by Sylvester J. Peot, head of the time
office. On this occasion , while the three were present , Powers was questioned as to
whether he had anything to do with giving the Union the mailing list which was kept
in his department. Powers denied any connection with the matter. Lavey explained
to Powers that because of his education , ability, and past performance, the Union
could do him no good, but that the Union would bracket or hold him to a level in
his future with the Respondent . A few weeks later, Powers was again called to
Lavey's office and Lavey, in Peot's presence, showed Powers a copy of a labor agree-
ment with another company and compared the provisions with the benefits given by
the Respondent. Lavey also told Powers that he was keeping an eye on Powers, that
Powers had great possibilities with the Respondent in the future, and that the Union
would certainly do Powers no good.
About March, after Powers was named by the Union as a member of the commit-
tee to attend the hearing in the representation proceeding referred to above involving,
among other matters, the unit in which he was employed, Powers was again called
into Lavey's office. There, also in the presence of Peot, Lavey declared that he was
surprised at Powers becoming a member of the committee as they were friends and
had gone hunting and fishing together. Powers explained that he was not doing
anything against Lavey personally, but he was doing what he thought was right.
Powers continued that, having started this activity, he was going to see it through to
the end. Lavey stated that the Respondent was not seeking union-minded people for
managerial positions and that the Union would tend to bracket Powers with people
who would not carry their own weight. Lavey stated further that one could not be
loyal to two causes, the Respondent's and the Union's as, for example, in the event of
a strike; and that Powers' union activities would not have a good effect on his future
with the Respondent.
With the Respondent 's permission , Powers attended the hearings in the repre-
sentation proceeding referred to above, in March and again in April . Powers also
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acted as a union observer in the Board-conducted election on October 30. A week
or two prior to the election, Lavey and Peot made a final attempt to dissuade Powers
from his activities on behalf of the Union . At this meeting Lavey iterated views he
had expressed on prior occasions , that the Respondent did not want union people
in managerial positions, that he had been keeping an eye on Powers , that it would
not do Powers any good as an individual to participate in union activities , and that
the Respondent frowned upon union-minded men . Powers pointed out that foremen
in the production unit had been members of their own union , and that unlike a
certain other clerical employee who had given up unionization in the course of a
campaign several years ago and was thereafter disliked by his fellow employees he,
Powers, would see it through . A few days before the Board election , in Peot's
presence, Lavey asked Powers to try to stop people from marking the posted
sample ballot . At Powers' request , Lavey granted Powers permission to post an
additional election notice in one of the offices.
In February 1957, Powers was called to Peot 's office where he had another con-
versation with Lavey and Peot . They explained to Powers that a 5 -percent reduction
in the plant's salary payroll was planned as an economy measure; that they would,
in part, replace Powers with Diny Bohn , who had worked in Powers ' office about
20 years before and who was not working at the time because of an accident, as
Bohn 's work in the smoked meat department was slack, and that thereby they would
take care of an older employee . Lavey pointed out to Powers that he was the
youngest man in the time office. Lavey also informed Powers that he had recom-
mended Powers as a candidate for the position of assistant purchasing agent, but
that Powers had been passed over because of his union activities .3 Powers declared
that the recommendation was news to him . Lavey stated that he had contacted the
city sales manager and suggested to Powers that he talk to the city sales manager
about employment there. Powers explained that he wanted to stay in the bar-
gaining unit, that he did not think he would make a good salesman. .
Around the time the Union was certified on March 6, Peot commented to Violet
M: Bennett, an employee of the credit union at the Respondent, that'he thought that
Powers would head the Union and Bennett agreed . Lavey and Peot again con-
ferred with Powers about the middle of March . On this occasion, Powers was in-
formed that Bohn was to return to work on March 25, and that Powers was to be
terminated or laid off on March 22. Lavey, while he stated that he did not know
that there were any openings , against suggested to Powers that he inquire about sales
work and Powers again indicated his lack of interest . Powers pointed out that
there were other employees in the organization with less seniority , such as Vic Wolfe,
and that Bohn would be more suitable in Wolfe's job as Bohn and Wolfe had been
doing the same type of work , that is, departmental clerk . Lavey stated that seniority
did not mean a thing in the time office and that the layoff did not have anything to do
with the Union.
Shortly before Powers ' separation on March 22, Harold E . Beck, business repre-
sentative of the Union , called Lavey regarding Powers and thereafter met with
Lavey. The sum of these conversations follows: Lavey explained that he had been
instructed to make a 5-percent reduction in the salary payroll; that some employees
had been laid off and that others would be laid off in the future; that Bohn, who had
35 years of service , would be returning to work on March 25, and that Bohn would
alternate between his work in the smoked meats department , where the work was
slack, and the time office . Beck pointed out that Bohn had not done timekeeping
work for 20 years; that he was not familiar with current procedures ; that he would
be like a new employee ; and that Wolfe , a clerk in variety meats, who had less
service than Powers and whose work was more closely related to that of Bohn,
would be more logical for layoff than Powers. Lavey explained that the Respondent
had not and did not intend to follow seniority , and that Wolfe was a college graduate
and an exceptional young man . Lavey explained further that Wolfe was being
groomed for a supervisory position . Beck replied that Powers was a college man
and an exceptional young man also.
On March 22, Powers got his final paycheck , and his employment was terminated.
About 2 days earlier, Powers was again in Lavey's office. In Peot 's presence, Lavey
told Powers not to go around talking about the Union so much and that if he wanted
a recommendation from the Respondent , he had better keep his mouth shut . Powers
explained in his testimony that the morning that Beck came to see Lavey, he, Powers,
had told another employee that there was going to be fur flying , that someone who
8 Peot was not questioned as to this incident . Lavey's version to the effect that he,
Lavey, told Powers that he did not know whether Powers had been passed over for the
assistant purchasing agent position because of his union activities , upon the Trial Exam-
iner 's observation of the witnesses , is not credited.
PLANKINTON PACKING COMPANY 1049
had overheard this remark and twisted it somehow and that it had gotten back to
Lavey. Powers explained further in his testimony that under the circumstances
he felt that he should and did apologize to Lavey on this occasion in Lavey's office
when the subject arose.
On March 28, employee Pearl Krenz was elected to the Union's bargaining com-
mittee. The following Monday, April 1, Peot asked Krenz into the interviewing
office. In this conversation, Peot congratulated her stating that he had heard that
she had been elected to the bargaining committee, that Lavey had told Peot that
Lavey had thought he knew his employees better than that. Krenz responded that
she was surprised that he had found out so soon. Peot inquired if he had displeased
her in any way. Krenz explained that there was nothing personal about it and
that she was interested in certain benefits such as automatic wage increases. When
the conversation ended, Peot stated in reply to Krenz's inquiry that the Union would
not make any difference in her standing as an employee.
2. The conclusions
The Respondent takes the position that Powers was laid off on March 22 because
of an economy drive instituted early in 1957. Although there are seasonal fluc-
tuations in the Respondent's business with attendant layoffs in other parts of the
organization, this is the first occasion that there has been a layoff in the time office
since Peot became head of that office about 13 or 14 years ago. Lavey explained
that at the beginning of 1957 the Respondent instituted an economy drive, and
that elsewhere in the organization, two salaried employees were laid off prior to
Powers' separation and another salaried employee was laid off after Powers' sepa-
ration. Lavey explained further that two other salaried employees who were to
have been laid off were absorbed by transfer. After Powers' separation, no new
employees were hired to the time office, and Bohn was not transferred to that
office.4 The work in that office was accomplished by some overtime by the remain-
ing staff and by Peot performing some of the work. There were also changes made
in the procedures to save time.
The reason the Respondent did not select Wolfe for layoff in its economy drive,
as Lavey explained to Beck, was that Wolfe was an exceptional young man and
was being groomed for a supervisory position. Both Wolfe and Powers were college
men, Wolfe having graduated and Powers having completed 3 years. Both Wolfe
and Powers had been selected in 1954 to form a group of about 12 to take a man-
agement training course at the Respondent' s expense for about 6 months. Upon
completion of the course by the group, the instructor had informed Powers that
he had received the highest grade in the final exam. The Respondent had also
recognized Powers' capacity and interest in the organization by granting him an
award in about January 1957, for suggesting a time-saving improvement. From
the time Powers started with the Respondent in October 1953, until he was separated
in March 1957, his salary was advanced from $60 to $72 a week. By education,
training, and performance, and as shown by the interviews with Lavey and Peot
wherein Powers was told of these qualities and that management was keeping an
eye on him as he had great possibilities with the Respondent, Powers like Wolfe
was regarded as having management potential. Lavey explained to Powers, how-
ever, that he could not be loyal to two causes, the Respondent's and the Union's.
Although in the final interview to dissuade Powers from his union activities in
October, Lavey warned Powers that these activities would not have a good effect
on his future and that the Respondent frowned upon union-minded men and was
not looking for such men in managerial positions, Powers declared his adherence
to the Union and chose to continue his union activities. As Lavey had warned
Powers would be the case, sometime after the final interview in October, Powers lost
his status of having management potential by pursuing his activities on behalf of
unionization. Having thus lost this potential because of his union activites, Powers
unlike Wolfe was subject to layoff. It is found that but for Powers' loss of status
as having management potential because of his union activities, he, like Wolfe,
would not have been terminated in the economy drive and would have been also
kept within the Respondent's organization for his potential values. It is accordingly
found that Thomas E. Powers was terminated on March 22, 1957, because of his
union activities in violation of Section 8 (a) (3) of the Act.
4 As it lacks probative value, no reliance is placed upon Bennett's testimony to the
effect that Charles Jones, Peot's assistant who was found by the Board to be a super-
visor' in the representation proceeding, had stated shortly after Powers was separated
that somebody had told him that they were not going to put Bohn on the job until this
thing cooled off.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also found that the Respondent interfered with, restrained, and coerced its
employees in violation of Section 8,(a) (1) of the Act by Lavey's threat to Powers
in October 1956, that continued union activities would be harmful to him; by
Lavey's advising Powers in February 1957, that he had been passed over for other
employment because of his union activities; by Lavey's threat to Powers in March
1957, that if Powers wanted a recommendation from the Respondent he had better
cease talking about the Union; and by Peot's in effect engaging in interrogation 5
of Krenz in April 1957, as to her union activities.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 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 of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices in viola-
tion of Section 8 (1), (3), and (5) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Thus, having found that the Respondent interfered with, restrained, and coerced
its employees by the conduct enumerated in the section herein entitled, "The con-
clusions," the Trial Examiner will recommend that the Respondent be ordered to
cease and desist from this conduct. Having found that the Respondent on March
22, 1957, discriminated against Thomas E. Powers, it will be recommended that
the Respondent be ordered to offer him immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority or
other rights and privileges, and make him whole for any loss of pay suffered by
him as a result of the discrimination, by payment to him of a sum of money equal
to the amount he would have earned from the date of the discrimination to the
date of the offer of reinstatement less his net earnings to be computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289. Earnings in one particular quarter shall have no effect upon the back-
pay liability for any other such period.
Having found that the Respondent refused to bargain collectively with the Union
as the exclusive representative of the employees in the above-described appropriate
unit, it will be recommended that the Respondent bargain collectively with the
Union upon request, as the statutory representative of the employees in that unit,
and, if an understanding is reached, embody such understanding in a signed
agreement.
The Respondent's infractions of Section 8 (a) (1) and (3) of the Act, herein
found, disclose a fixed purpose to defeat self-organization and its objectives.
Because of the Respondent's unlawful conduct and its underlying purposes, the
Trial Examiner is persuaded that the unfair labor practices found are related to
other unfair labor practices proscribed by the Act, and that the danger of their
commission in the future is to be anticipated from the course of the Respondent's
conduct in the past. The preventative purpose of the Act would be thwarted, unless
the remedial order is coextensive with the threat. In order, therefore, to make
effective the interdependent guarantees of Section 7, to prevent a recurrence of
unfair labor practices, and thus to effectuate the policies of the Act, it will be
recommended that the Respondent be ordered to cease and desist from infringing
in any manner upon the rights guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Office Employees International Union, Local 9, AFL-CIO, is a labor organ-
ization within the meaning of Section 2 (5) of the Act.
2. All office clerical employees including order keeper, record keeper, and second
stenographer in the plant sales department, clerical employees in the time and
employment offices (payroll clerks, including the one who also operates the addresso-
graph machine, comptometer operators, Margaret Albert, and Miss Hankin),
clerical employees in the standards department (comptometer operators, typist,
5 Graniteville Company, 96 NLRB 456 , 479. (See finding relating to footnote 39.)
PYRAMID ELECTRIC COMPANY 1051
secretary to department head , labor distribution clerk, the employee, who handles the
plant salary ledger, and the other departmental clerks ), but excluding plant manager
or superintendent, confidential secretary to the plant manager , auditor-office manager,
confidential clerk or secretary to the auditor -office manager, assistant office manager,
chief clerk , plant sales head , city sales head , assistant sales heads in the sales
departments , all salesmen , department heads in the beef, lamb, veal , provision,
table-ready meats, byproducts , advertising , credit, purchasing , transportation , indus-
trial relations , and departmental departments , section heads in the veal , lamb, primal
cut, boneless beef cutting , fresh and frozen pork and variety meats, smoked meats
and sliced bacon , sweet pickle , and dry salt and lard sections , head cashier , invoice
discrepancy investigator , beef, lamb , veal, and the smoked meat promotion men, all
buyers, graders , and nurses , plant superintendent and assistant plant superintendent,
confidential clerk and confidential secretary to the plant superintendent , chairman of
the suggestion committee , safety director , plant protection and cafeteria supervisor,
division superintendents , employment manager-head timekeeper , head and assistant
head of the standards department , head of the statistical control and analysis depart-
ment , head of the training department , pickle making foreman , all technical em-
ployees not specifically mentioned herein , production and maintenance employees,
guards, foremen and assistant foremen , all other supervisors as defined in the Act,
confidential secretary to the plant sales head , confidential secretary to the city sales
head , head of the special cutting room , head of the dairy and poultry department,
assistant head of the purchasing department , head of the voucher department, head
of the cost figuring for cattle, calves, and lamb department , head of the cost figuring
for hogs department , assistant head of the credit department , 'assistant head of the
transportation department , chauffeur, pickle maker, Charles Jones, credit union
employees , time-study engineers , draftsman-estimator , and statistical quality control
inspectors , constitute and at all times material herein, constituted an appropriate unit
for the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
3. The above-named labor organization was on March 6, 1957 , and at all times
thereafter has been , the exclusive representative of all the employees in the unit above
described for the purposes of collective bargaining within the meaning of Section
9 (a) of the Act.
4. By refusing on April 5, 1957, to bargain collectively with the above -named labor
organization , as the exclusive representative of all the employees in the unit above
described , the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating with regard to the hire and tenure of employment of Thomas
E. Powers, thereby discouraging membership in the above -named labor organization,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
6. By (a ) threatening an employee that union activities would be harmful; (b)
advising an employee that he was passed over for other employment because of his
union activities ; (c) threatening an employee that he would not get a recommendation
if he talked about the Union ; (d) interrogating an employee as to her union activities;
(e) engaging in discrimination ; and (f) refusing to bargain , the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Pyramid Electric Company and International Union of Electri-
cal, Radio & Machine Workers, AFL-CIO, Petitioner. Case
No. 22-RC-5. May 20,1958
SUPPLEMENTAL DECISION, DIRECTION, AND ORDER
Pursuant to a Decision and Direction of Election of the Board
dated June 24, 1957,1 an election was held in the above-named case on
Not published
120 NLRB No. 142.