The Nestle Co.

National Labor Relations Board - Board Decisions

Mar 27, 1980

248 N.L.R.B. 732 (N.L.R.B. 1980)

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Nestle Company and Retail Wholesale Depart-
ment Store Union Food Division, Local 282,
AFL-CIO
The Nestle Company and Local 50, Bakery & Con-
fectionery Workers Union, AFL-CIO, Petition-
er. Cases -CA-15010 and 1-RC-15833
March 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On November 6, 1979, Administrative Law
Judge Michael O. Miller issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel and the Intervenor' filed exceptions and
supporting briefs, and Respondent filed an answer-
ing brief and cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
I Retail Wholesale Department Store Union Food Diviiion, Local 282.
AFI-CIO, appeared as Intervenor in Case -RC-15833.
2 The General Counsel and the Intervenor have exctpted to certain
credibility findings made by the Administrative Law Judge. It is the
Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing his findings.
3 We find merit in the General Counsel's contention that Foreman
Tzenis' questioning of employee Turk regarding testirrony before the
Board, which the Administrative Law Judge found to have been viola-
tive of Sec. 8(a)(1) of the Act, interfered with the right to participate in
Board processes, as well as the right to engage in union activities. We
shall modify the recommended Order and notice accordingly. However,
we deny the General Counsel's motion to amend the complaint to include
a comment allegedly made by Supervisor Parker to employee Jaskolka.
The matter sought to be added was not introduced with notice that it
was to be the subject of a new and independent allegation of a violation
of Sec. 8(a)(l), and we find that it was not fully litigated.
The Administrative Law Judge did not rule specifically on the General
Counsel's contention that a question by Supervisor Miller to employee
Larson concerning whether the instant charges might be dropped was
coercive. We find that it was not, because the question related to the
extent of Larson's concern for an absence to go to the 13oard's Regional
Office, permission for which absence had been denied L.srson earlier, up-
setting her.
248 NLRB No. 106
The Nestle Company, New Milford, Connecticut,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph (c):
"(c) Interrogating its employees concerning their
union activities and their participation in Board
processes."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or assist any unions
To bargain collectively through represen-
tatives of their own choosing
To act together for the purpose of collec-
tive bargaining or any other mutual aid or
protection
To refrain from the exercise of any and all
of these activities.
WE WILL NOT do anything that interferes
with these rights. More specifically,
WE WILL NOT threaten you with discipline
or other reprisals because of your union mem-
bership, activity, or desires.
WE WILL NOT enforce our jewelry and uni-
form rules so as to prohibit you from wearing
union insignia in circumstances wherein we
permit similar clothing or insignia to be worn
when they do not relate to union activity.
WE WILL NOT interrogate you concerning
your union activities or your participation in
processes of the National Labor Relations
Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the statutory rights quar-
anteed them by Section 7 of the Act.
THE NESTLE COMPANY
DECISION
STATEMENT OF THE CASE
MICHAEI. O. MILLER, Administrative Law Judge: This
case was heard in New Milford, Connecticut, on May 16
through 18 and June 11 through 14, 1979, based upon a
charge filed on September 29, 1978, by Retail Wholesale
---
THE NESTLE COMPANY 733
Department Store Union Food Division, Local 282,
AFL-CIO, herein called Local 282, and a complaint
issued by the Acting Regional Director for Region I of
the National Labor Relations Board, herein called the
Board, on November 13, 1978, as amended on May 9,
1979, and at the hearing. Consolidated for hearing with
the unfair labor practice complaint, pursuant to a Board
Order dated April 24, 1979, were objections to an elec-
tion conducted on September 21, 1978, in Case I-RC-
15833, as filed by Local 282, the Intervenor in that pro-
ceeding.
At issue herein was whether The Nestle Company,
herein called Respondent or the Employer or the Com-
pany, violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, herein called the Act,
and engaged in conduct warranting that an election be
set aside by discriminatorily enforcing plant rules, sus-
pending two employees, and other conduct. Respon-
dent's timely filed answer denied the substantive allega-
tions of the complaint.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and to cross-
examine witnesses, and to argue orally. Briefs were filed
by all parties and have been carefully considered.
Upon the entire record,' including my careful observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS AND THE UNIONS' LABOR
ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF I.AW
Respondent, a New York corporation, with its princi-
pal office and place of business in White Plains, New
York, is engaged at New Milford, Connecticut, in the
manufacture, sale, and distribution of food products. Ju-
risdiction is not in issue. The complaint alleged, Respon-
dent admitted, and I find and conclude that Respondent
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
The complaint alleged, all parties admitted, and I find
and conclude that Local #50, Bakery & Confectionery
Workers Union, AFL-CIO, herein called Local #50,
and Local 282 are both labor organizations within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background-The Representation Elections
On July 7, 1977, Local 282 filed a representation peti-
tion, Case 1-RC-15259, seeking to represent the Em-
ployer's New Milford, Connecticut, production and
maintenance employees. Following a campaign in which
the Employer campaigned for the employees to vote
against union representation, an election was conducted
on August 25, 1977. The employees rejected unionization
at that time by a vote of 232 to 102. The record does not
I The General Counsel's unopposed motion to correct the transcript in
a multitude of particulars is granted Other errors in the transcript are
either easily understood by the reader or do not affect the substance of
the testimony or argument.
reflect that any objections or unfair labor practices
charges were filed with respect to that campaign and
election. The campaign giving rise to the instant charges
and objections began with union activity by Local #50
during the spring of 1978.2 Local 282 commenced simi-
lar activity shortly thereafter. On July 6, Local #50 filed
the petition in Case 1-RC-15833 and Local 282 inter-
vened. An election was held on August 31, resulting in
110 votes being cast for Local #50, 109 for Local 282,
and 74 employees voting against union representation. As
none of the parties had received a majority of the valid
votes cast, a runoff election, involving only the two
Unions, was conducted on September 21. Local #50 pre-
vailed in the runoff by a vote of 154 to 137. The finality
of that election is, of course, subject to the resolution of
the objections filed by Local 282.3
B. The Alleged Unfair Labor Practices
1. Conduct prior to the filing of the petition for
representation
Employee Thomas McGrath had been active on behalf
of Local 282 in the election campaign conducted during
1977. Sometime around the end of 1977, McGrath was
transferred into the department supervised by Foreman
Pat Lee and General Foreman George Previs. Previs in-
structed Lee to watch McGrath, to keep him on his job,
and to get a book on him, saying that McGrath was a
troublemaker who had been instrumental in the 1977
campaign. Around May, McGrath signed a union au-
thorization card supporting Local #50. He gave that
card and cards signed by other individuals to Ed Grin-
nell, one of the most active Local #50 supporters.
McGrath subsequently switched his allegiance back to
Local 282. Around May or June, Previs told Lee that
employees were handing out union cards, and that it was
her responsibility to keep the employees on their jobs
and not let them wander about the building. Referring to
McGrath as a "son-of-a-bitch," he told Lee to keep
McGrath and Pete Henderson, another Local 282 sup-
porter, on their jobs and not let them wander around. He
said that they were being paid to work.
On one occasion in April or May (after McGrath had
signed a Local #50 card), Previs told Lee that he
wanted to write McGrath up for failure to work when
he was supposed to. Lee spoke with McGrath about the
incident and learned that Previs himself had prevented
McGrath from doing certain work at the time in ques-
tion. Lee told McGrath that he had better be careful be-
cause Previs was after him.4 During the same period of
time, according to McGrath, he was also told by Fore-
All dates hereinafter are 1978 unless otherwise specified.
While the Employer's conduct before and after both elections is
called into question by the unfair labor practice charges, it is only con-
duct occurring between the to elections which may properly be consid-
ered in regard to the objections The Singer Company, Wood Products Di-
vision, 161 NLRB 956 (1966), and case cited therein.
4 McGrath testified that Lee told him that Previs was out to get him
because he was a "union sympathizer, troublemaker of 282." Noting the
candor and sincerity with which Lee, a former supervisor, testified, and
comparing that with the less convincing manner in which McGrath's tes-
timony was presented, I credit Lee's version of this incident
THE NESTLE COMPANY
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man Vic Barney "to watch out . . . be careful because I
am being watched."
According to Lee, Previs told her that he did not like
McGrath and Henderson. In fact, according to her testi-
mony, Previs, who ceased to have supervisory responsi-
bility around June 1, did not like many of the employees.
At one time while Previs was still her general foreman,
Lee scheduled McGrath, who had worked quite a bit of
overtime up to that point, to work certain overtime be-
cause of the extended absence of another employee.
Previs asked her for a list of the employees who had
worked overtime and, upon seeing the list, told her that
there was to be no more overtime for McGrath. She was
to give it to another employee, Daryl Reed, who did not
want to work the overtime. Reed was also disliked by
Previs. Lee told McGrath that Previs did not want him
to work overtime.
The General Counsel contended that Lee's and Bar-
ney's statements to McGrath, and the denial of overtime
to him, constituted violations of Section 8(a)(1) of the
Act. As to the statements I must agree. Union activity
was beginning anew in the plant at the time these state-
ments were made. Previs suspected from McGrath's
prior involvement that he would become involved again.
In fact, McGrath did engage in some organizational ac-
tivities on behalf of each of the Unions at about this
time. Although I have found that Lee did not mention
the Union to McGrath when she gave him what ap-
peared to be sincere and friendly advice, that advice, de-
riving as it did from Previs' statements to her, coming at
a time of burgeoning unon activity, could not help but
restrain McGrath in the exercise of the protected activi-
ties in which he was engaged. The evidence, however,
fails to sustain the General Counsel's burden of proving
that McGrath was denied overtime because of his union
activities. McGrath had received substantial overtime
and was the object of Previs' enmity for a variety of rea-
sons. The employee to whom the overtime was then as-
signed had not worked as much overtime and did not
want to; he was similarly the object of Previs' enmity for
unknown reasons. Previs made no mention of their union
activities in reassigning the overtime. Thus, it cannot be
said with the degree of certainty required to sustain the
General Counsel's burden of proof that the union activi-
ties played any role in his actions.
2. Alleged discriminatory enforcement of company
rules
(a) The evidence
Published company rules provide that employees must
wear uniform work clothing, provided by the Company,
while on duty. The men's uniform consists of a hat, shirt,
and slacks. The womens' uniform is in the form of a
smock or lab coat. Both use snaps rather than buttons
and close to the neck. All employees are required to
wear hats or head coverings.
The Company also prohibits the wearing of "Wrist-
watches, unauthorized rings, pins, beads, jewelry, and or-
naments of any kind that might fall into the product . . .
wedding rings without stones or heavy engraving may
be worn." The clothing and jewelry rules were estab-
lished for the safety of the employees and, pursuant to
Federally mandated regulations, to prevent the contami-
nation of the food products produced in the plant.
Respondent also maintained the following rules re-
garding solicitation and distribution:
No employee will be allowed to engage in solicita-
tion for such things as subscriptions, memberships,
or outside activities during working time. Any em-
ployee who does so and, thereby, interferes with his
own work or the work of another employee during
that employee's working time will be subject to dis-
cipline, including discharge.
* * * * *
There will be no distribution of literature or other
printed material at any time on Company property
in the working areas of the Plant by any employee,
and there will be no distribution of literature on
Company property by any person not employed by
the Company.5
The General Counsel contended that Respondent en-
forced the jewelry and uniform rules so as to discrimi-
nate against employees engaged in union activity in gen-
eral and activity on behalf of Local 282 in particular, and
disparately enforced the no-solicitation rule against sup-
porters of Local 282.
Most of the controversy herein involves the alleged
presence and freedom of Ed Grinnell to campaign on
behalf of Local #50 during worktime. Grinnell was a
maintenance mechanic working the second, 2 p.m. to 10
p.m., shift in building 4. In the periods immediately pre-
ceding both elections he was observed by a number of
employees coming into work early, between 10 a.m. and
noon, and talking to employees who were working on
the production lines. Thus, Peter Henderson, Judy
Smithrovich, Mortimer Carey, Colleen Larson, Maurice
Pardy, Deborah LeRoux, Alice Roache, Ann Jaskolka,
and Tim McGrath all testified that they saw Grinnell
walking around, carrying his tool belt, and talking to
workers on the lines before the first and/or second elec-
tions while apparently working overtime hours. Of these
only Carey and Jaskolka heard Grinnell mention the
Union or had him mention it to them. Carey testified
that, shortly after the first election, while working in the
cookie room, he asked Grinnell for information concern-
ing Local #50. Grinnell gave him a booklet. In the area
was Foreman Brian Parker. Carey described Parker as
being approximately 15 feet away; Grinnell described the
distance as being in excess of 50 feet. There was equip-
ment between Grinnell and Parker. Grinnell testified that
he endeavored to pass the literature in such a way that
Parker could not see him do so, and Carey testified that
Parker was at such a distance that they could not hear
the conversation in which Parker was engaged. Jaskolka
described a conversation between Grinnell and another
employee regarding the Union which took place while
they were standing approximately 5 feet away from
6 General Counsel conceded the validity of the foregoing solicitation
and distribution rules.
THE NESTLE COMPANY 735
Foreman Parker and Jaskolka, who were also engaged in
conversation. A need for a maintenance mechanic arose
at that time and, rather than sending Grinnell, Parker
sent mechanic Charles Stillson who was also in the im-
mediate area. Stillson was working at the time that
Parker sent him to answer the call; Grinnell was only
talking. Jaskolka did not know whether Parker heard or
could have heard the conversation in which Grinnell
was engaged as machinery was running in the area. This
occurred approximately I week prior to the first elec-
tion. Henderson testified that on one other occasion,
while he observed Grinnell talking to employees on the
line, a supervisor-in-training named Santini was near
Grinnell.
Grinnell was a member of Local #50's organizing
committee. He admitted that he passed out authorization
cards and literature and campaigned on company time as
often as possible. His campaigning was conducted openly
in front of the employees, but he attempted to avoid
being caught by supervisors.
On one occasion, prior to the first election, Larry
Merla, the division production manager, observed Grin-
nell talking to three employees. He accused Grinnell of
campaigning, and, although that was what Grinnell was
doing, Grinnell denied that he was so engaged. Merla
told him that it was an "illegal assembly" and directed
him to break it up. In the third week of May, Grinnell
was called into Merla's office and, in the presence of
Persnnnel Manager Bryan and Plant Manager Wulff, was
told that campaigning on company time was illegal, and
that he would be reprimanded if they could prove that
he was doing it.
Employee Tim McGrath testified that on or about
August 8 he had observed Grinnell walking around talk-
ing to other employees. He asked Foreman Parker (not
Grinnell's supervisor) how someone could do this.
Parker said that there was nothing he could do.
McGrath said that he would like to do it too and was
warned not to try doing so else he would be written up.
The record reflects that Respondent installed approxi-
mately 10 new machines in the area of Grinnell's respon-
sibilities during the summer of 1978. Grinnell was the
most experienced maintenance mechanic on his shift, and
it was part of his responsibility to observe, by eye and
ear, the operation of those machines. He was expected to
be on the production floor and was similarly expected to
talk with the employees on the line to ascertain the
manner in which the machines were running. Observa-
tions of his engaging in such conversations, alone, would
not, therefore, alert management to his violations of the
no-solicitation rule. The record further reflects that Grin-
nell did work substantial overtime prior to both elec-
tions. However, so did all of the other maintenance me-
chanics, and Grinnell's overtime was approximately in
the middle range of the amounts of overtime worked by
all of the maintenance mechanics. The overtime was ne-
cessitated by the presence of the new machinery.
The General Counsel's witnesses, the supporters of
Local 282, admitted that they too engaged in campaign-
ing during working hours. Thus, Henderson testified that
he talked about Local 282 to employees on the line and
answered their questions on union-related subjects while
working. He does not know whether he was ever ob-
served doing this by any supervisor, and he never re-
ceived any discipline for engaging in such activity.
Larson, a Local 282 supporter, admitted campaigning for
the Union she favored on breaktime and occasionally
during worktime. She admitted going to the line and
talking to other employees while supervisors were pre-
sent, but she did not know if they heard her. She was
not prevented from doing so. Maurice Parady, a janitor,
testified that prior to the filing of the petition he would
talk to employees on the production lines during work-
time. Subsequent to the filing of the petition, when he at-
tempted on one occasion to talk union with another em-
ployee, his foreman, Vic Barney, told him not to stand
around talking. Barney did not mention the Union. While
Parady denied campaigning for Local 282 on company
time, thereafter he was observed doing so by employee
Deborah LeRoux. Rebecca Farnham, a Local #50 sup-
porter, no longer employed by Nestle, testified without
contradiction that she observed both Pat Lee and Roena
Schilke talking on behalf of Local 282 while working on
the cookie line.
Prior to the campaign, and during it, Henderson had
been told by various supervisors that there was to be no
union activity on working time; the need to keep busy
was stressed. He contended that prior to the election
period he saw his foreman on a daily basis and saw supe-
rior members of Respondent's hierarchy much less often.
However, in the period preceding both elections Hender-
son claimed that he saw higher management in the pro-
duction areas of the plant much more frequently, and
that there were more frequent requests to Henderson and
other members of the crew on which he worked to keep
busy during working time. Not all of the members of his
crew were supporters of Local 282; Glen Miller was a
Local #50 supporter.
As noted, Respondent prohibited the wearing of most
jewelry in areas of the plant where its product could be
contaminated. This rule was applied to the wearing of
campaign insignia. During the campaign, Local #50 sup-
porters had round stickers, approximately 2-1/2 inches in
diameter, bearing a picture of two hands shaking, togeth-
er with the name of the Union. Local 282 supporters had
metallic buttons which could be affixed to their clothing
by way of a pin and safety catch.
Peter Henderson testified that in the spring of 1977
and again in November 1978 he had worn political cam-
paign buttons promoting his own and other people's
public political lives. He was not precluded from doing
so at those times. During the periods of union political
activity at Respondent's plant, particularly in the period
of approximately 1 or 2 weeks prior to each election,
Henderson wore a button proclaiming his support for
Local 282. On one occasion, prior to the first election,
Henderson's general foreman, Dick Phelps, told him that
it was okay to wear his button so long as it was covered
by the opaque apron worn in production areas. Howev-
er, shortly before the second election, while Henderson
was working on a mixer, he was approached by Fore-
man John Moffett. Moffett asked him if he was wearing
a campaign button; Henderson was, under his apron, and
so admitted. Moffett asked him to remove the button,
T H E N E S T L E C O M P A N Y 3 ~
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and, when Henderson protested that Phelps had told him
it was permissible to be worn in the manner in which he
was wearing it, Moffett cited the company jewelry rule
and said that it was a general rule which should be kept
enforced. Henderson protested that Local #50 support-
ers were wearing stickers supporting their Union, but
Moffett only repeated his direction to remove the Local
282 button. Henderson did so and then began rto remove
his college ring which had a stone in it. Moffett told him
it was not necessary to remove the ring. According to
Moffett, it appeared that the ring was difficult to
remove, and he did not press the matter as Henderson
appeared to be getting emotional.
Henderson testified that he observed Local #50 sup-
porters Sylvia Calabrese and Glen Miller visibly display-
ing their stickers for Local #50 during worktime before
both the first and second elections. Calabrese was simi-
larly observed by other employees, as were Local #50
supporters Becky Farnham and Lisa Engle. Calabrese
was observed wearing stickers over each of her breast
pockets on her own clothes under her uniform smock.
On occasion she kept her smock open so as to promi-
nently display the stickers. In doing so, she attempted to
avoid being seen by supervision. She was seen, however,
and was told by Foreman Bleakley and Plant Manager
Wulff to cover them up.6
Prior to the first election, Ann Jaskolka wore a Local
282 button on her uniform collar. Foreman Mctt told her
to wear it on her own clothing and to cover it up. At
the same time she was wearing a locket under her uni-
form and hoop earrings. Nothing was said about either
of those items. Similarly, prior to the first election, Mott
told Lisa Engle to cover up or remove her Local #50
sticker. Other Local 282 supporters were observed by
various employees wearing Local 282 insignia. Peter
Schiel, a Local #50 supporter, reported this tc his super-
visor, but saw no corrective action taken.
Grinnell testified that, because he had seen employees
wearing Local 282 insignia, buttons, and T-shirts, day
after day, prior to both elections, he made up a Local
#50 sticker encased within a plastic envelope of the type
used by hunters to display their hunting licenses. He af-
fixed it firmly to his tool belt. Foreman Moffett directed
him to remove it. He subsequently discussed this direc-
tive with Larry Merla, who told him that the sticker, as
displayed, met some of the Company's requirements, but
still could fall off. Grinnell protested that he thought that
the Local 282 supporters should similarly be required to
remove their union buttons, and Merla promised to
police the area. Grinnell did not, thereafter, display this
sticker. This incident occurred between the first and
second election.
In a similar incident, employee Rebecca Farnham was
directed by Merla to remove a Local #50 slicker from
the sleeve of her blouse. She was wearing it visibly and
in a production area at the time. Farnham had observed
Roena Schilke wearing a Local 282 button on her hat
while working on the cookie line. She does riot know if
any supervisors observed Schilke's insignia.
I credit her testimony to this effect. Wulff only recalled seeing her so
adorned and directing her supervisor to tell her to cover or remove the
stickers.
As noted, Respondent required its employees to wear
uniforms while working on the production lines. Howev-
er, during the period of the elections, Respondent had
some problems in maintaining an adequate supply of uni-
forms for all of its employees. On occasion, not infre-
quently, employees were permitted to work while wear-
ing their own clothing because of the lack of a sufficient
supply of uniforms. Particularly, male employees some-
times wore their own T-shirts, in varying colors and
sometimes bearing slogans or product names. They did
so only when no uniforms were available. Employees
were permitted to wear their own clothing under the
uniforms, and the uniform rules did not apply in the
company break and locker rooms.
Sometime during the election campaign, Local 282 dis-
tributed T-shirts imprinted with Local 282's emblem on
the front upper left-hand corner. Respondent generally
precluded employees from wearing these T-shirts in pro-
duction areas. Employees Smithrovich and Schilke both
testified to wearing these T-shirts under their uniforms,
with the uniform (like a smock) unsnapped, in the week
or two prior to the second election. Smithrovich was
told by Bleakley, and Schilke was told by Moffett, to
remove the T-shirt or button up. Each was told that they
could not campaign on working hours. Both had previ-
ously worn other T-shirts under their uniforms, with
their uniforms unbuttoned at least to the waist, without
being told to keep the uniform fronts closed completely.
In the week prior to the second election, Maurice
Parady was called in to work on a production job, not
his regular janitorial position. He showed up wearing a
Local 282 T-shirt. As a janitor he had frequently worn
nonuniform T-shirts. When he had done so, the foreman
would ask him whether he had a uniform and would
permit him to wear his T-shirt if he did not. On this oc-
casion both Moffett and Merla told him to take the
Local 282 T-shirt off, stating that he could not work
wearing that shirt. He procured a uniform shirt and con-
tinued to work. During that same night he observed em-
ployee Richard Reidhaar (a Local #50 supporter) wear-
ing a plain brown T-shirt while working on the produc-
tion line. In another incident in early September employ-
ee Steven Mussow was wearing one of the Local 282 T-
shirts while in the break room. A foreman named Kessler
told him to put on a uniform shirt or cover up the T-
shirt. He had worn nonuniform T-shirts prior to this inci-
dent.
(b) Conclusions as to the alleged discriminatory and
disparate enforcement of company rules
It is clear to me that the alleged disparate enforcement
of company rules as between the supporters of Local
#50 and those supporting Local 282 was solely a matter
of perception. Each contending side, throughout the
elections, attempted to get away with as much prohibited
campaigning, whether oral or by the wearing of various
insignia, as it could. Each was successful to some extent
and each was sometimes apprehended. Each side per-
ceived the other as getting away with more than it had.
The record, however, is devoid of any evidence which
would warrant a conclusion that Respondent encouraged
or even permitted campaigning by one union while pro-
THE NESTLE COMPANY 737
hibiting it by the other. Accordingly, to the extent that
the complaint alleges violations of Section 8(a)(l) of the
Act by permitting one union to campaign while prohibit-
ing the other from doing so, I shall recommend that it be
dismissed.
It is clear, however, that at least some of Respondent's
supervisors enforced the jewelry and uniform rules so as
to prohibit the wearing of union insignia, the Local 282
T-shirts, Local 282 buttons, and Local #50 stickers, in
circumstances where similar items, unrelated to union ac-
tivity, would have been permitted. The wearing of union
insignia is a form of expression protected by Section 7 of
the Act, not a form of solicitation such as is generally
encompassed within a no-solicitation rule, and the right
to wear such insignia on the employer's premises during
working hours is guaranteed by Section 7, at least in the
absence of special considerations. Serv-Air, Inc. v.
N.L.R.B., 395 F.2d 557 (10th Cir. 1968), enfg. 161
NLRB 382 (1966), and cases cited therein. While Re-
spondent could validly prohibit the wearing of jewelry
and nonuniform clothing within its production areas, it
could not apply its valid rules strictly as to union insignia
while permitting breaches of those valid rules, as it did,
for nonunion-related jewelry and clothing. And, while
the uniform rule affected Local 282 more directly than it
did Local #50, that was the result of Local 282's choice
of campaign materials, not discrimination by Respondent.
Accordingly, I find that Respondent's disparate enforce-
ment of its jewelry and uniform rules in regard to the
union activity of both Unions violated Section 8(a)(1) of
the Act.
3. Other alleged preelection violations and evidence
regarding animus
In the 1977 union campaign and again in the campaign
preceeding the initial 1978 election Respondent cam-
paigned for a vote against union representation. Cam-
paign letters were mailed to the employees in August,
strongly, but lawfully, setting forth the Employer's posi-
tion. After the initial election, which resulted in the need
for a runoff election between the two union participants,
Respondent took no position according to the various
members of Respondent's hierarchy. It did not campaign.
Respondent's position is supported by the testimony of
Patricia Lee, who was a supervisor through June and a
rank-and-file employee thereafter. Testifying as a Local
282 supporter and a witness on behalf of the General
Counsel, she related an incident occurring in May or
June wherein she had complained to Larry Merla, Re-
spondent's division production manager, about the
morale of the employees working under her. She told
him of their unwillingness to work overtime and men-
tioned the union activity. Merla told Lee not to worry
about it, that the presence of a union would make things
easier for them, and that other Nestle plants were al-
ready unionized. Lee was never told that Respondent
preferred one union over the other.
General Counsel adduced evidence of several incidents
which he contended showed Respondent's preference for
Local #50 and coerced employees in regard to their sup-
port for Local 282. Alice Roache, a known advocate of
Local 282, had a vague recollection of Supervisor Vic
Barney telling her that he had heard that Local #50 was
going to win the election. Pete Henderson, similarly
known to Barney as an advocate for Local 282, had a
similar conversation with Barney in the week prior to
the second election. The remark was made in a friendly,
kidding manner. On or about September 14, during a
barroom conversation, Supervisor Brian Parker told
Local 282 supporter Steve Mussow that he knew for a
fact that Local #50 was going to get in. Mussow testi-
fied that another supervisor, Holtgren, told him about
the same time that Local #50 would be a better union to
have represent the employees; that it had better benefits.
Employees Thomas Turk and Larry Bartoletti both
described conversations between Foreman James Tzenis
and employee John Antonowicz occurring sometime be-
tween the first and second election. Both Turk and An-
tonowicz were committee members for Local 282. An-
tonowicz had openly supported the union and had cam-
paigned all over the plant and in the break room for that
Union. Turk described Tzenis as telling Antonowicz, in
the presence of the rest of the crew, "your union is a
loser. It's not a good union." The remark was made as
one individual passed the other. Bartoletti reported
Tzenis making remarks to Antonowicz to the effect that
he was supporting a loser, and that Local #50 was going
to win the election. On direct examination, Bartoletti
also related that Tzenis referred to Local 282 as a
"bunch of crooks." However, on cross-examination he
acknowledged that Tzenis did not actually say this. Bar-
toletti also acknowledged that he had made similar re-
marks to Antonowicz, and that Bartoletti, other employ-
ees, and Tzenis generally kidded around, were on friend-
ly terms with each other, and frequently kidded An-
tonowicz on this subject. Bartoletti was not sure whether
the specific conversation he related between Tzenis and
Antonowicz was in a "kidding" vein. Finally, in this
regard, Turk described an incident shortly before the
second election wherein Tzenis repeated to Antonowicz
that Local 282 was a loser. Somehow a bet on the elec-
tion results, for a cup of coffee, was agreed to. Turk did
not know who initiated the bet.
The foregoing statements, I find, occurring in the nat-
ural give and take of the shop in a situation where the
employees had openly proclaimed their support for one
union or the other and had campaigned vigorously for
their favorite organization, neither evidences unlawful
hostility toward one union or employer support for the
other. Neither do they rise to the level of unlawful inter-
ference. All of the foregoing statements fall clearly
within the ambit of Section 8(c) of the Act, the Act's
"free speech" provision. As the Board has recently held,
Section 8(c) protects a respondent's characterization of a
union which employees are capable of evaluating for
themselves. Fayette Cotton Mill, 245 NLRB No. 64
(1979). Accordingly, to the extent that these statements
are alleged as violations of Section 8(a)(1) of the Act, I
shall recommend that they be dismissed.
The General Counsel also contended that employee
Colleen Larson was unlawfully interrogated by her fore-
man, Steve Miller, in the period preceeding the second
election. She testified, without contradiction, that she
said to Miller, "I wonder how the second election is
THE NESTLE COMPANY
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to turn out?" On direct examination, Larson testi-
fied that Miller responded by asking her which union she
was for and what its advantages were. She told him that
her Union was a stronger union and he asked why she
thought that was so. On cross-examination, however, she
testified that Miller was aware of which union she fa-
vored and asked her why she was for the union that she
was supporting. He never mentioned either Local 282 or
Local #50 by name, and did not speak in favor of Local
#50 or give her the impression that he favored it. As in
the case of the previously described conversation, this
was a casual conversation. Noting that Larscn was an
open advocate of Local 282, who served on its commit-
tee and campaigned on both break and worktime (with-
out interference by the employer), and noting further
that she initiated the conversation with Miller, I cannot
find that Miller's response to her inquiry had any tenden-
cy to interfere with Larson's exercise of her statutory
rights. In the circumstances present herein, that response
did not seek to elicit from Miller how she was going to
vote and carried no hint of reprisal for her intended ac-
tions. Accordingly, to the extent that the alleged interro-
gation comes within the ambit of the complaint, as
amended, I shall recommend that it be dismissed.
4. Alleged discriminatory suspensions
Stephen Mossow and Richard Hawn were both sup-
porters of Local 282 and participated in its election cam-
paign. Mossow was on Local 282's organizing committee
and was so identified on union leaflets. During the
period between the two elections, both were working on
the second shift in building 2. Following the end of their
shift at 10 p.m. on September 14, Mossow and Hawn left
the plant and went to a nearby cafe. They remained
there until closing, at approximately I a.m., each con-
suming approximately a half a dozen glasses of beer
during their stay. When the cafe closed, they returned to
the plant, arriving at or about 1:30 a.m. They were wear-
ing T-shirts and hats bearing the insignia of Local 282.
They entered building 4, through the side doer, and pro-
ceeded to the can line, a production area, to see friends
who they assumed would still be on duty. In that area
they were met by the division production manager,
Merla. Merla told them that they could not be there
without uniforms, they said they had none, and he in-
structed them to follow him to the maintenance room to
secure some. In the maintenance room, Merla gave them
uniforms and hats and, suspecting that they were not,
asked them whether they were on duty. They told him
that they were there to see friends rather than to work.
According to Merla's credible testimony, Merla told
them that they were not allowed to be in the building if
they were not there for business reasons. They changed
the subject and told Merla that they had heard about
promotions to the foreman level and asked him how they
could go about becoming foremen. At or about this
point, Foreman John Moffett entered and asked Merla to
come with him to deal with a production problem. Merla
left, repeating that unless they had a proper business pur-
pose they could not come into building 4. As he left, he
observed Mossow and Hawn leaving in the direction of
the vending room area.7
On leaving the maintenance room, Mossow and Hawn
returned to the can line to speak to Jerry Bleakley, the
foreman of that line. At the same time, Merla called
Bleakley to check whether Mossow and Hawn had left
the plant. He was informed by Bleakley that they were
in Bleakley's department and he proceeded to the can
line. Merla came up to them as they were talking to
Bleakley and told them that they would have to leave
the building. They then went to the break room. Shortly
after they arrived there, Merla and Moffett entered and
asked for their names. Hawn told Merla his, but Mossow
refused to do so. They were again told to leave, and this
time they complied. On the way out of the plant,
Mossow shouted that he could not wait until the Union
came in. Merla and Moffett followed them out, and Mof-
fett watched them leave the area.
In the break room at the time they were directed to
leave was employee Rudy Redstock. Redstock had been
at the tavern with Mossow and Hawn and was off duty.
Redstock had not gone into a production area after leav-
ing work that evening. While in the break room, Red-
stock saw Foreman John Moffett and recalled having a
brief conversation with him near the door. Redstock tes-
tified that he had come into the plant while off duty on
other occasions and had on occasion been asked why he
was there. On such occasions, if he did not have an ade-
quate reason, such as a need to go to the Company's
office or to secure papers, he was told to leave. With
adequate reasons he was permitted to stay. Redstock was
a credible witness, no longer employed by Respondent.
Merla prepared a report describing the incident. In-
cluded in that report was a reference to Mossow's part-
ing comment. No mention was made of Merla's observa-
tions concerning the smell of alcohol on their breath or
their boisterous and vociferous conversation.
A disciplinary hearing was held on the morning of
September 15. Merla, who had not mentioned to Bryan
the fact that he had told the employees they could not
be in a production area wearing union T-shirts and hats,
had recommended that both be discharged. Bryan, how-
ever, decided that a 5-day suspension of each would be
adequate and that was the penalty assessed. The reason
for the discipline, according to Respondent, was their in-
subordinate refusal to leave the premises until after a
third order to do so was given. They were so told, and
Mossow was told that his refusal to give his name, on
request of a supervisor, was like telling that supervisor
"to go to hell."
The General Counsel contended that Mossow and
Hawn were disciplined because of their support for
Local 282, that they were ordered to leave to prevent
them from campaigning for that Union, and that they
were disparately treated from other employees who had
engaged in similar conduct, particularly employees who
7 Mossow and Hawn denied that Merla directed them to leave at this
point in the conversation. While I do not deem it particularly critical to
the resolution of the issue herein, I find that, under the circumstances, it
is more probable that Merla did so direct them and also probable that
Merla, who was working at the time, would have more accurately re-
called the events of that evening.
THE NESTLE COMPANY 739
supported Local #50. The General Counsel's theory, at
least in part, presupposes an element of favoritism by Re-
spondent for Local #50 over Local 282. As has been
previously discussed, I have found that the evidence
warrants no such conclusion. While the employer may
have violated Section 8(a)(l) of the Act in some respects
concerning its enforcement of the jewelry and uniform
rules vis-a-vis both unions, its conduct was essentially
evenhanded.
Moreover, the evidence does not warrant a conclusion
that Mossow and Hawn were disciplined because they
were wearing union T-shirts and hats or that they were
ordered to leave for that reason. Had that been the case,
Merla would have ordered them out of the plant when
he first observed them on the can line so dressed. He did
not. Rather, without any animosity, he offered to assist
them in securing the proper uniforms for work. Again,
although Respondent violated the Act in prohibiting the
wearing of union-embossed T-shirts while permitting the
wearing of other nonuniform T-shirts when uniforms
were not available, it must be noted that no employees
were disciplined for wearing the union T-shirts.
In disciplining Mossow and Hawn, Respondent did not
consider either of their prior records with the Company.
Mossow, in fact, had a clean record in regard to prior
discipline. Hawn had received discipline in the past. Fail-
ing to consider their respective records does not establish
that these employees were treated disparately from any
others. Respondent had no set policy in regard to pro-
gressive discipline. Prior violations were considered in
some instances when discipline was to be given, notably
in cases of absenteeism, but the records reflect that the
nature and extent of discipline varied widely and without
any consistent pattern. The suspension for 5 days in the
circumstances described herein did not differ in any sub-
stantial way from the range of penalties assessed to other
employees for varying acts of insubordination and other
misconduct.
Neither can I find that Mossow and Hawn were dispa-
rately ordered to leave the plant premises. Other em-
ployees did in fact testify that they had come into the
plant while off duty. Generally, however, they were
only allowed to remain when they had a valid reason for
being there. Thus, as testified to by Rudy Redstock, usu-
ally when he would come in while off duty he would be
questioned about his presence by the supervisors and, if
he did not have an adequate reason, such as a visit to the
Employer's offices, he would be directed to leave. Judy
Smithrovich testified that she came in a couple of times,
once to visit some people and another time to pick up
her paycheck. It was when she was there for the latter
reason that she was observed and spoke to her supervi-
sor. Other employees, such as Roena Schilke and Rebec-
ca Farnham, came to the plant to bring lunches to their
husbands or boyfriends. Sylvia Calabrese similarly en-
tered the plant while off duty to turn in medical bills for
insurance purposes. None of the foregoing evidence es-
tablishes any practice by the Company of permitting em-
ployees, regardless of their union proclivities, to come
into the production areas of the plant merely to visit
with other employees. 8
In order to establish that the discipline assigned to
Mossow and Hawn violated Section 8(a)(3), the General
Counsel must show some nexus between their union ac-
tivity and that discipline. I must conclude that there is
insufficient evidence herein to establish that essential
connection. The mere fact that they were wearing union
T-shirts and hats when they entered the plant does not
establish that the wearing of such clothing was the
reason for their expulsion or their discipline. Neither can
Mossow's outburst while leaving the plant, uttered like a
challenge, expressing his desire for union representation
establish the connection. In simple fact, the employees
were insubordinate, they were punished for that insubor-
dination, the punishment was not out of proportion to
the insubordination, and it can not be said that other em-
ployees would not have been similarly punished for simi-
lar conduct even absent any evidence of union affiliation.
Accordingly, I shall recommend the allegations that em-
ployees Mossow and Hawn were discriminatorily disci-
plined be dismissed.
5. Alleged postelection 8(a)(1) violations
On a Wednesday in mid-October, a group of employ-
ees were scheduled to go to the Boston Regional Office
of the Board to present evidence in support of Local
282's charges and objections. On Tuesday, Colleen
Larson asked her supervisor, Brian Parker, for the day
off. He asked her why and she told him about the ap-
pointment. He told her that, if she took the day off, she
would get a written warning. Larson replied, "joking
back," that she "really didn't care because [she] didn't
have any [written warnings]." Parker told her that he
would call the plant manager, and then said, "[S]o you're
one of the 282 troublemakers also." She denied being a
troublemaker. Larson went downstairs to tell Pete Hen-
derson what had happened. As she was doing so, Parker
also came downstairs and told her that she should not be
talking union on company time. She denied that she was
campaigning, and he told her to go back upstairs and not
to talk to anyone else the remainder of the day. Follow-
ing her conversation with Parker, Larson was ap-
proached by the quality control supervisor, Steve Miller.
Miller apparently noticed that she was upset and asked
her what was wrong. She told him, "[W]e were going to
Boston to testify and . . . the company wasn't going to
let us have the day off because it would mess up the
work with too many people leaving." He asked her
whether she thought everything would be dropped if
they didn't go. She said no. On cross-examination it
became clear that between 10 and 20 employees had
been scheduled to go to Boston for interviews, and that
the Company's objection, as expressed to Larson, was
that the absence of so many employees would interrupt
the work schedule.
s Extensive testimony was taken in regard to a sign posted on one of
the entrances to a production area prohibiting off duty employees from
entering that area. As the evidence does not indicate that Respondent dis-
ciplined these employees for violation of the rule established by that sign,
I find it unnecessary to resolve the question of whether either Mossow or
Hawn had seen that sign then or on any other occasion.
THE NESTLE COMPANY 9
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel contended that, by the foregoing
statements of Parker and Miller, Respondent unlawfully
threatened Larson and demonstrated its animus toward
Local 282. I must conclude, however, that Parker's
threat of a written warning to Larson related not to the
fact that she was scheduled to give testimony to the
Board, but to the fact that she intended to leave work
without permission in a group so large as to interfere
with Respondent's production. While employees have a
statutorily protected right to file and support unfair labor
practice charges and objections, they do not have a sta-
tutorily protected right to leave work without permis-
sion, thereby disrupting production, at least in the ab-
sence of having been served with a subpena. As the
Board has noted, "a balancing of the employee interest in
protecting each other against the employer's interest in
efficiently operating his business is required and the se-
curing of permission is an important element in making
the balance." Supreme Optical Company, Inc., 235 NLRB
1432, 1433, fn. 9 (1978). Similarly innocent, I find, is
Parker's subsequent direction to Larson to break up her
conversation with Henderson and return to work. It is
clear that this conversation occurred on worktime, and
that Larson had walked away from her work station in
order to engage in it. Moreover, she was interfering with
Henderson's job at the same time. Respondent had a
valid rule prohibiting solicitation and other interference
with work, a rule which I have found to have been uni-
formly applied to the proponents of both Unions when-
ever they were caught engaging in such prohibited con-
versations. Parker's enforcement of those rules at that
time was permissible.
In the course of his conversations with Larson, how-
ever, Parker did refer to her as a "282 troublemaker."
Although there is some indication from her testimony
that both Larson and Parker were joking with each
other in the course of this exchange, I must find that this
statement tends to interfere with Section 7 rights. Such a
statement carries with it an implied threat of reprisal for
engaging in union activities and tends to discourage em-
ployees from so engaging.
In early May, a number of employees received sub-
penas, served by the General Counsel, calling for their
appearance at the hearing in this matter. Upon receipt of
her subpena, Larson went to her foreman, Jerry Bleak-
ley, told him she had received the subpena, and asked for
the day off. He granted her request. On the following
day, Bleakley told Larson that he would have to see her
subpena before she could secure an excused absence. She
showed it to him and asked him why he had to see it.
Bleakley told her that he had to see everyone's subpena
before they would be excused, and "that the company
had a list of the people that were going to testify . . .
because they had to defend themselves."
The General Counsel contended that the foregoing
conversation constituted the unlawful creation of the im-
pression of surveillance. The test applied by the Board
for a violation of this nature "is whether employees
would reasonably assume from the statement in question
that their activities had been placed under surveillance."
South Shore Hospital, 229 NLRB 363 (1977). In that same
case, the Board pointed out that a respondent does not
create an impression of surveillance by merely indicating
its awareness of union activities "so long as there is no
evidence indicating that the respondent could only have
learned of the [activities] through surveillance." No such
impression is created where, as here, the employee freely
volunteered the information to her supervisor. Moreover,
by virtue of the fact that each of the subpenaed witnesses
would be requesting time off to comply with the sub-
pena, would be appearing at the hearing, and would be
testifying in open court, there was no secret as to the
identity of the witnesses in the period when Bleakley's
request to see the subpena was made. Accordingly, I find
that the General Counsel has failed to establish that Re-
spondent unlawfully created the impression of surveil-
lance by the foregoing conversation and shall recom-
mend that this allegation be dismissed.
In the same period of time, employee Thomas Turk
had also received a subpena. On the day following re-
ceipt of that subpena, Turk was motioned into the office
of Foreman Tzenis. Tzenis asked Turk "something to the
effect, '[H]ow come you testified against me?"' Tzenis
did not ask Turk what he was going to testify about, but
Turk told him that his testimony related to conversations
between Tzenis and employee Antonowicz. The General
Counsel alleged that the foregoing conversation consti-
tuted coercive interrogation. I agree. By asking Turk
why he was testifying against Tzenis, Tzenis impliedly
questioned Turk's loyalty. Employees must be entirely
free to testify fully and accurately without fear that their
testimony will alienate them from the supervisors upon
whom their job security rests. Accordingly, I find that,
by this questioning of Turk, Respondent has violated
Section 8(a)(1) of the Act.
111. THE OBJECTIONS
A. Alleged Preferential Treatment
Local 282's principal contentions with respect to the
objections allege that Nestle discriminatorily enforced its
no-solicitation, uniform, and jewelry rules so as to pre-
clude Local 282's campaigning while permitting that of
Local #50, and further favored Local #50 by disciplin-
ing two supporters of Local 282 because of their union
activity and by rearranging the work schedule of known
supporters of Local #50 so as to permit them to cam-
paign during working hours. As previously discussed, I
have found that there is no merit to any of these allega-
tions. The rules applied by Respondent, albeit unlawfully
in certain limited circumstances, were applied as uni-
formly as possible under all of the circumstances. The
evidence does not support any contention that Respon-
dent enforced those rules more stringently against the
supporters of Local 282 than against those supporting
Local #50. To the extent that Local 282 supporters may
have been affected by the enforcement of the uniform
rule more often than the supporters of Local #50, that is
solely a result of the manner in which Local 282 chose
to campaign; i.e., by wearing clothing embossed with the
insignia for that Union. I have further found that em-
ployees Mossow and Hawn were lawfully disciplined for
their insubordinate misconduct, and not for any union ac-
tivity in which they may have engaged at one time or
THE NESTLE COMPANY 741
another, including the wearing of Local 282 T-shirts and
hats. Finally in this regard, I have found that the evi-
dence does not support a conclusion that Respondent re-
arranged the working hours of Ed Grinnell or any of the
other supporters of Local #50 so as to permit them more
time to campaign. The payroll records established that
Grinnell worked no more overtime than the average of
the maintenance mechanics during that period of time;
the reasons for that overtime, new machines requiring
observation and adjustment by the maintenance mechan-
ics, were also amply demonstrated by the record.
On the basis of the foregoing, I must recommend that
the allegations of preferential treatment to Local #50 are
not supported by the record, and, to the extent that the
objections are based upon such allegations, I recommend
that they be overruled.
B. The 8(a)(1) Violations as Objectionable Conduct
Local 282 further contended that even if the no-solici-
tation, uniform, and jewelry rules were not discrimina-
torily enforced as between the two Unions, the existence
and implementation of these rules during the critical
preelection period prevented the holding of a free and
uncoerced election. In Flat River Glass Co., 234 NLRB
1307 (1978), the Board overruled a Regional Director's
recommendation to set aside an election in a situation
where the employer had promulgated and enforced an
invalid no-solicitation rule in circumstances where there
was no evidence indicating preferential treatment by the
employer between the two participating unions. In that
case, the Board stated:
In Showell Poultry Company, 105 NLRB 580
(1963), the Board overruled an objection to an elec-
tion involving two unions in which the employer
made a putatively coercive speech opposing both
unions. The Board explained in Packerland Packing
Company, Inc., 185 NLRB 653 (1970), citing
Showell, that where one of two competing unions
has won an election decisively it will not be set
aside because of employer conduct equally affecting
both. Cf. Marvin Neiman, d/b/a Concourse Nursing
Home, 230 NLRB 916 (1977).
The rule of Showell Packing is applicable here. Respon-
dent's invalid enforcement of its otherwise valid rules
equally affected both Unions. To permit Respondent's
misconduct to be utilized to set aside the results of the
runoff election would permit Respondent, the wrongdoer
herein, to profit by its illegal acts at the expense of the
innocent Petitioner, Local #50.
The counsel for Local 282 contends, however, that the
rule of the Showell case is only applicable where one of
the two unions has won an election "decisively." He
points out that, in Packerland Packing, there were 200
votes cast for one union, only 27 for the other, and 26
votes against representation. Similarly, in Showell Poultry,
out of 63 valid ballots cast, 32 were cast for petitioner, 6
for the intervenor, and 25 for no union. In Flat River
Glass, there were 140 ballots cast for the petitioner, 67
for the intervenor, and I vote against both labor organi-
zations. The vote in the instant case was not as one
sided; 154 votes for the Petitioner, Local #50, and 137
votes for the Intervenor, Local 282. This is a difference
of 17 votes out of 291 (excluding 2 challenges and 7 void
ballots), nearly 6 percent. While the cases cited by the
Petitioner do refer to the decisive nature of the votes in-
volved therein, I can not find that the difference in-
volved herein is so slight as to require the application of
a different rule. Local #50's victory was clear. More-
over, I note that this was a runoff election in which Re-
spondent did not participate, and that Local #50 had re-
ceived the greatest number of votes in the initial election
as well. Finally, I note that the runoff election is the
third election in which Local 282 has failed to secure a
majority vote in the last 2 years. Accordingly, I must
conclude that the facts herein do not warrant the appli-
cation of a rule different from that applied in Showell.
Packerland Packing, and Flat River Glass, and recom-
mend that this objection be overruled. Compare Con-
course Nursing, supra.
C. Campaigning During the Election
Finally, Local 282 contended that representatives of
Local #50 engaged in unlawful electioneering at the
polls for the second election. In support of this objection,
employee Mortimer Carey testified that he arrived at
building 4 to vote in the second election about 10 min-
utes before the polls opened. Local #50 observer Ed
Grinnell was in the polling room when he arrived. There
was no line. According to Carey, Grinnell asked him
whether he had received the literature that Grinnell had
sent him and then said that that should clear up any mat-
ters or questions he had as to who the bargaining agent
should be. Grinnell did not remember any such conver-
sation. All he recalled was that Carey came in early on
the day of the election and stated that he was in a hurry
because he had a doctor's appointment (acknowledged
by Carey); Grinnell then asked the Board agent whether
Carey could vote first. As Carey left the polling area,
after he had voted, he observed Grinnell talking to sev-
eral people wearing Nestle uniforms. Employee Judy
Smithrovich similarly testified that she saw Grinnell
standing approximately 10 feet from the observers table
talking to employees in the polling room. She did not
hear what he said and did not testify as to the duration
of the conversation.
Grinnell was one of Local #50's observers at the
second election and served as a "runner," going to the
various departments along with an employee serving in a
similar capacity for Local 282 to release the voters by
reading a prescribed statement. Prior to the election he,
along with all of the other observers, had been instructed
not to talk to any one during the election and to always
have an observer for the opposite party with him. Alice
Roache, a member of Local 282's committee and an ob-
server for that Union at the second election, testified that
she did not see Grinnell outside the presence of Local
282's runner, Williams, once the polls opened.
In Milchem, Inc., 170 NLRB 362, 363 (1968), the
Board held that "conversations between a party and
voters while the latter are in a polling area awaiting to
vote will normally . . . be deemed prejudicial without
investigation into the content of the remarks." It was fur-
THE NESTLE COMPANY 1
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ther held, however, that "this does not mean that any
chance, isolated, innocuous comment or inqui ry by an
employer or union official to a voter will necessarily
void the election. We will be guided by the maxim that
the law does not concern itself with trifles." Subsequent-
ly the Board held, in William Pastoor and Ray Pastoor, a
Co-partnership d/b/a Pastoor Bros. Company, 223 NLRB
451 (1976), that the Milchem rules did not apply to con-
duct engaged in prior to the opening of the polls and
when no other employees were present. Thus, even as-
suming that Grinnell made the statement attributed to
him by Carey, that statement, occurring 10 minutes prior
to the opening of the polls, is not objectionable.
Additionally, I note that the Milchem rule prohibits
"sustained conversation with prospective voters waiting
to cast their ballots." The observations of Grinnell talk-
ing to persons wearing Nestle uniforms do not rise to
this level. There is no evidence of whom he was talking
to or for how long. The evidence does not indicate that
he was talking with voters waiting in line to vote.
Indeed, it is highly unlikely that he would have been
able to do so as he was accompanied, at all times, by
Local 282's observer. It is as likely that he was talking to
the other observers as to potential voters. Accordingly, I
shall recommend that this objection be overruled.
Finally, there was testimony concerning the wearing
of union insignia at the polling place. Observer Charles
Schindler, a Local #50 observer, testified that he wore a
Local #50 bumper sticker on the right shoulder of his
shirt. It was approximately 3-1/2 inches in diameter and
stated "Vote Bakery and Confectionery Union Local
#50." Local 282's observer objected to his wearing of
the sticker only because it was larger than the button en-
dorsing Local 282 which was being worn by Local 282's
observer. The Board agent allowed both of them to wear
their campaign insignia. Other than these individuals, it
appears that all of the observers wore only the official
badge provided by the National Labor Relations Board,
which stated that the individual was an observer and
bore the name of the Union for whom the observer was
serving. I recommend that this objection be overruled as
without merit.
IV. THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of
the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
FURTHER CONCLUSIONS OF LAW
1. By threatening its employees with discipline or
other reprisals because of their union activities, by un-
lawfully enforcing its jewelry and uniform rules so as to
interfere with the lawful union activities of its employ-
ees, and by interrogating its employees concerning their
union activities, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of
rights guaranteed them under Section 7 f the Act,
thereby violating Section 8(a)(1) of the Act.
2. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
3. Respondent has not engaged in any unfair labor
practices not specifically found herein.
4. Respondent has not engaged in any conduct war-
ranting that the runoff election conducted on September
21, 1978, in Case -RC-15833 be set aside.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby make the following recommended:
ORDER9
The Respondent, The Nestle Company, New Milford,
Connecticut, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening its employees with discipline and other
reprisals because of their union activities.
(b) Interfering with its employees' union activities by
enforcing its jewelry and uniform rules so as to prohibit
the wearing of union insignia while permitting similar
items of clothing and jewelry, not related to union activ-
ity, to be worn.
(c) Interrogating its employees concerning their union
activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its New Milford, Connecticut, plant copies
of the attached notice marked "Appendix."10 Copies of
said notice, on forms provided by the Regional Director
for Region 1, after being duly signed by Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
IT IS FURTHER RECOMMENDED that the objections to
the runoff election conducted in Case 1-RC-15833 on
September 21, 1978, be overruled and that a certification
of representative be issued to Local #50, Bakery and
Confectionery Workers Union, AFL-CIO.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 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.
'O In the event that this 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 read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."