Worthington Creamery and Produce Co.

National Labor Relations Board - Board Decisions

Aug 24, 1943

52 N.L.R.B. 121 (N.L.R.B. 1943)

In the Matter Of WORTHINGTON CREAMERY AND PRODUCE COMPANY and
GENERAL DRIVERS, HELPERS, WAREHOUSE, PRODUCE AND CREAMERY
EMPLOYEES UNION, LOCAL 909, AFFILIATED WITH TEAMSTERS JOINT
COUNCIL No. 34, A. F. OF L.
Case No. C-2673.-Decided August 04,143
DECISION
AND
ORDER
On July 14, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and that it had not engaged in certain other unfair labor practices,
and recommending that it cease and desist from the unfair labor prac-
tices found and take certain affirmative action, as set out in the copy
of the Intermediate Report attached hereto, and that the complaint,
as amended, be dismissed as to the remaining allegations.- None of
the parties filed exceptions to the Intermediate Report or made
request for oral argument before the Board. The Board has con-
sidered the rulings of the Trial Examiner at the hearing and finds that
no prejudicial errors were committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the exceptions and
qualifications noted below :
1. The Trial Examiner found that the respondent dominated and
interfered with the formation and administration of the Independent
and contributed financial and other support thereto. While we adopt
this finding, in so doing we find it unnecessary to rely upon the Trial
Examiner 's finding that the respondent is responsible for the activities
of its only cashier, Russell Fowler, who participated in the formation
and administration of the Independent. Although the status of
Fowler is not free from doubt, we consider the evidence insufficient
to support a finding that Fowler, who admittedly lacked supervisory
authority, either represented management or was identified with it in
the eyes of the employees.
52 N. L. R. B., No. 21.
121
122 DEOISiONS OF NIATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner found that, by entering into a closed-shop
contract with the Independent, the respondent discriminated with
regard to the hire and tenure and terms and conditions of employ-
ment of its employees, and encouraged membership in the Independ-
ent and discouraged membership in other unions in violation of Sec-
tion 8 (3) of the Act, and that it thereby interfered with, restrained,
and coerced its employees in violation of Section 8 (1) of the Act.
We have held before, under similar circumstances, that such conduct
violates Section 8 (1).' Accordingly, we find that, by entering into
an invalid closed-shop contract with the dominated Independent on
January 10, 1939, and again on September 17, 1941, the respondent has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act. As in the Palmer
case, we find it unnecessary, in view of the state of the record and in
view of our opinion-that we shall effectuate the policies of the Act by
our remedial order, to determine whether by its conduct in enforcing
the closed-shop provision of these contracts the respondent, violated
Section 8 (3) of the Act. 'We shall, therefore, dismiss the allegation
of the complaint, as amended,. that the respondent, by entering into,
maintaining, and enforcing the contracts of January 10, 1939, and
September 17, 1941, with the Independent, discriminated against its
employees, within the meaning of Section 8 (3) of the Act.
3. The Trial Examiner found, and we agree, that in September 1939
the respondent did not lock out and discharge its employees in the
turkey-picking department in violation of Section 8 (3) of the Act.
In so concluding, we find that the respondent's conduct in tempo-
rarily closing the turkey-picking department was motivated not by
the concerted activity of its employees in petitioning for a wage in-
crease but by economic considerations.
4. The Trial Examiner found, and we agree, that, following the
reopening of the turkey-picking department, the respondent delayed
the recall to work of employees Helms, Vestrum, Koepsell, and Rol
because of their concerted activity in seeking a wage increase prior to
the shut-down, and thereby discriminated in regard to their hire and
tenure of employment in violation of Section 8 (1) of the Act. How-
ever, we do not concur in the further finding of the Trial Examiner
that the respondent's conduct was not violative of Section 8 (3) of the
Act. We are of the opinion and we find that, irrespective of whether
such concerted activity resulted from any interest or activity in a
labor organization, such discrimination has the effect of discouraging
the formation of and membership in a labor organization, which is
the customary instrument utilized by employees in exercising the right
to engage in concerted activities for the purpose of collective bargain-
See Matter of Palmer Fruit Company, 51 N. L. R. B. 924.
WORTHINGTON CREAMERY AND PRODUCE -COMPANY 123
ing or other mutual aid or protection, as guaranteed by Section 7 of
the Act, and constitutes an unfair labor practice within the meaning
of Section 8 (3) of the Act.2
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Worthington Creamery
and Produce Company, Worthington, Minnesota, and its officers,
agents, successors, and assigns, shall :
1. Cease and desist from : -
(a) Dominating or interfering with the administration of Inde-
pendent Dairy & Produce Workers Union, or with the formation' or
administration of any other labor organization of its employees,
and from contributing financial or other support to the said organ-
ization or any other labor organization of its employees;
(b) Recognizing Independent Dairy & Produce Workers Union as
the representative of any of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment;
(c) Giving effect to its contracts of January 10, 1939, and Septem-
ber 17, 1941, with Independent Dairy & Produce Workers Union, or
to any modification, extension, supplement, or renewal of either, or to
any superseding contract with it, which may now be in force;
(d) Discouraging membership in any labor organization of its
employees by discriminating in regard to the hire or tenure of
employment of its employees, or any term or condition of their
employment ;
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities, for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Independent Dairy & Produce
Workers Union as the representative of any of its employees for the
purpose of dealing with the respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment, and completely -disestablish Independent Dairy
& Produce Workers Union as such representative;
2 See Matter of Stehli c6 Co ., Inc., et al., 11 N . L. R. B. 1397 , 1451; Matter of Dow Ohem-
tCal Company, 13 N. L. R. B. 993, 1037. 1
124 DEMNONS OF NIATIONAL LABOR RELATIONS BOARD
(b) Post immediately in conspicuous places in all the respondent's
establishments, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees stating
(1) that the respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraphs 1 (a), (b), (c), (d), and
(e) of this Order; (2) that the respondent will take the affirmative
action set forth in paragraph 2 (a) of this Order; (3) that the
respondent's employees are free to become and remain members of
any labor organization and that the respondent will not discriminate
against any employee because of his membership or activity in any
labor organization; and (4) that the contracts of January 10, 1939,
and September 17, 1941, with Independent Dairy & Produce Workers
Union, or any modification, extension, supplement, or renewal of either,
or any superseding contracts are invalid under the National Labor
Relations Act, without prejudice, however, to the assertion by the
employees of any legal rights thereunder; -
(c) Notify the Regional Director for the Eighteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, as amended, insofar
as it alleges (1) that the respondent interfered with, restrained, and
coerced its employees by warning them, against affiliation with "out-
side" unions, by disparaging the A. F. of L. and other unions, and
by granting wage increases in order to discourage membership in
General Drivers, Helpers, Warehouse, Produce and Creamery Em-
ployees Union, Local 909, affiliated with Teamsters Joint Council No.
34, A. F. of L., and (2) that the respondent discriminated against its
employees within the meaning of Section 8 (3) of the Act by locking
out and discharging them in September 1939, and by entering into,
maintaining, and enforcing the contracts of January 10, 1939, and
September 17, 1941, with Independent Dairy & Produce Workers
Union, be, and it hereby is, dismissed.
CHAIRMAN MIIL.,Is took no part - in the consideration of the above
Decision and Order.
WORTHING CREAMERY AND PRODUCE COMPANY
INTERMEDIATE REPORT
Mr. Francis X. Helgesen and Mr. Clarence A. Meter, for the Board.
Mr. Arnold W. Brecht, of Worthington, Minn., for the respondent.
Mr. Bernard L. Simmer, of St. Paul, Minn., for the Union.
Mr. F. B. Kalash, of Lakefield, Minn., for the Independent.
STATEMENT OF THE CASE
125
Upon a charge duly filed on April 5, 1943, by General Drivers, Helpers, Ware-
house, Produce and Creamery Employees Union, Local 909 , affiliated with Team-
sters Joint Council No. 34, A. F. of L., herein called the Union , the National Labor
Relations Board, herein called the Board, by its Regional Director for the Eight-
eenth Region ( Minneapolis , Minnesota ), issued its complaint dated May 1, 1943,
against Worthington Creamery and Produce Company, herein called the respond-
ent, alleging that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 ( 1) and (2) and
Section 2 ( 6) and ( 7) of the National Labor Relations Act, 49 Stat . 449, herein
called the Act. Copies of the complaint and notice of hearing were duly served
upon the respondent , the Union and Independent Dairy & Produce Workers Union,
herein called the Independent.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent : ( 1) on or about October 16, 193S, encouraged , assisted and
participated in the formation of the Independent and from said date until May
1, 1943, contributed to its support and dominated and interfered with its admin-
istration ; and (2 ) from on or about October 16, 1938, to May 1 , 1943, warned and
discouraged its employees against affiliation with and activities on-behalf of unions
with outside affiliations , disparaged the American Federation of Labor and other
unions, and in or about September 1942, gave wage raises to its employees in order
to discourage membership and activity in the Union.
On June 4, 1943 , the respondent filed an answer , admitting certain allegations
of the complaint as to the nature of its business but denying that it had com-
mitted any unfair labor practices . , On June 9, 1943 , the Independent filed a "com-
plaint in intervention" in which it denied in substance that the respondent had
committed any unfair labor practices.
Pursuant to notice , a hearing was held at Worthington , Minnesota , on June 17
and 18, 1943 , before the undersigned Trial Examiner duly designated by the Chief
Trial Examiner . During the hearing the Trial Examiner granted the Independ-
ent's motion to intervene . The Board , the respondent , and the Independent were
represented by counsel , and the Union by its representative . All parties partici-
pated in the hearing Full opportunity to be heard , to examine and cross -examine
witnesses , and to introduce evidence bearing on the issues was afforded all parties.
During the Board's case, counsel for the Board moved to amend , the complaint
so as to allege a violation of Section 8 (3) of the Act in that the respondent on or
about September 20, 1939, locked out and discharged certain employees because
of their concerted activities in attempting to secure wage increases . The respond-
ent objected to the motion on the ground that the charges were barred by ]aches
but the respondent did not claim surprise . The motion was granted . At the close
r
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Board's case, counsel for the Board moved to amend the amended com-
plaint so as to conform the complaint to the proof so as to allege a further viola-
tion of Section 8 (3) of the Act that the respondent on or about January 10,
1939, entered into a written closed shop agreement with the Independent. The
motion was granted over the objections of both the respondent and the Independ-
ent. The Board also moved to, conform the complaint to the proof as to dates
and names. This motion was granted without objection.
At the close of the hearing, counsel for the Board, the respondent and the
Independent argued orally before the undersigned. Although afforded an oppor-
tunity to do so, none of the parties filed briefs
Upon the, entire record in the ease and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Minnesota corporation, having its principal office and place
of business at Worthington, Minnesota, where it is engaged in the purchase, proc-
essing, sale and distribution of poultry, butter, eggs and 'other products. The
respondent operates branch plants at Slayton, Windom and Luverne, Minnesota,
and at Rock Rapids, Iowa, and maintains approximately 25 buying stations in
southwestern Minnesota and northwestern Iowa, as well as truck routes for the
collection of poultry, eggs and other products.
During the 12 months ending March 1, 1943, the respondent purchased raw
materials valued at more than $3,000,000, which were shipped to the Worthing-
ton plant, herein called the plant, from points outside of the State of Minnesota.
During the same period of time, sales, of the respondent amounted to approxi-
mately $4,750,00, 95 percent of which represented shipments from the plant to
points outside the State of Minnesota. Excepting the fact, hereinafter discussed,
that the Independent is recognized by the respondent as, the bargaining agent for
all of its employees, this case is concerned only with the plant at Worthington.
The respondent employed about 140 employees at the plant in October 1938.
II THE ORGANIZATIONS INVOLVED
General Drivers, Helpers, Warehouse, Produce and Creamery Employees
Union, Local 909, affillat`ed with Teamsters Joint Council No. 34, A. F. of L., is
a labor organization which admits to membership employees of the respondent.
Independent Dairy and Produce Workers Union is an unaffiliated labor organi-
zation whose membership is restricted to employees of the respondent.
III THE UNFAIR LABOR PRACTICES
A. The background
Prior to the formation of the Independent in 1938, it does not appear from the
evidence that any labor organization organized or attempted to organize the
respondent's employees. There is some evidence in the case that the Union has
since 1938 made some attempt.to organize the employees but the record is silent
as to the nature and extent of the activities of the Union in this connection.
The Board offered no proof to substantiate the allegations in the, complaint
that the respondent warned its employees against affiliation with and activities
on behalf of unions with outside affiliations , made disparaging statements about
the A . F. of 1 ,., and other unions, and gave wage raises to employees about
r
WORTHINGTON CREAMERY AND PRODUCE COMPANY 127
September 1942 in order to discourage membership and activity in the Union.
Accordingly, the undersigned will hereinafter recommend that these portions of
the complaint be dismissed.
B. Domination of and interference with the formation and administration of the
Independent
On October 13, 1938, the organizers of the Independent held a meeting in the
"hatchery office" of the respondent. These organizers were Russell Fowler,
cashier for the 'respondent, Erick Dirks, foreman of the "feeding floor," Fred
Hyke, foreman of the ice cream department, Luke Van Drunen, foreman of the
chicken-picking department, O. H. Griffith, foreman or head engineer in the powesr
department, George Meyeraan, foreman of the chicken-packing department, R. W.
Hoxie, a foreman, and Earl Silver, an employee in the creamery department'
At the meeting the advisability-of forming a union was discussed'and a com-
mittee, composed of all of the above named employees, was appointed to circa=
late among the employees a paper on which they were to indicate their interest
in forming a union and willingness to attend a meeting to be held for that pur-
pose on October 14 by signing their names.
This paper was circulated on respondent's premises, to the employees by the
committee, and a meeting was held in the respondent's garage on the night of
October 14, 1938.2 At this meeting the officers and directors of the Independent
were elected as follows : Fowler, president ; Griffith, vice president ; Helen Meek-
lenburg, a general office worker, secretary ; Geryl Gardner, treasurer ; and John
Zweep, Silver, Ray Kellam, A. J. Lundquist and John Engelkes, directors. Of
the above directors, Zweep was foreman in the hatchery department and Kellam
was foreman over the carloading department. Shortly after this meeting the
Board of Directors with the aid of an attorney drafted the charter and bylaws
for the independent which were later voted on and accepted.
1 Fowler, who was still employed by the respondent at the time of the hearing , testified)
to the above facts. Ralph W. Bergstrom, who was vice president of the respondent in
1938 and president at the time of the hearing, testified that Hoxie, Meyeraan, Valk
Drunen, Griffith and Dirks were "minor department" foremen and were not considered to,
be foremen under the Wage and Hour Law (Fair Labor Standards Act). With respect
to the duties of minor depaitinent foiemen, Bergstrom testified that they had "from 1 to,
30 or 40 [employees under their supervision] at different times of the year" ; that more
than 20 percent of their time is used in manual work ; that, prior to the organization of
the Independent, they made recommendations for wage increases ; that they had the power
to hire and dischaige employees, but were first required to confer with management; and
that they have authority to lay off employees at the end of seasonal work. The fact that
these "minor department foremen" were considered subject to the wage and hour provisions
of the Fair Labor Standards Act is not conclusive as to their status as foremen. The
undersigned takes judicial notice of the rulings and interpretations of the Wage and flour
Division of the Department of Labor These rulings merely hold that foremen are subject
to the provisions of that Act when a certain percentage of their time is spent in manual work,
as distinguished from purely supervisory duties, and are not determinative of their status
as foremen or supervisors . In the circumstances of this case , it is clear and the under-
signed finds that the above -designated foremen were representatives of management and
their actions are attributable to the respondent.
2The record discloses that after the above mentioned meetings the Independent con-
tinued to hold meetings on the premises of the respondent . At the time of the hearing
the regular meetings of the Board of Directors of the Independent were still held on respond-
ent's premises. For these meetings the Independent paid the respondent at the rate of
50 cents for use of the "hatchery office" and $2 for use of the garage . Bergstrom testified)
that, when the meetings were first held, E O. Olson was the officer of the respondent
through whom arrangements for use of the premises would have been made . Olson was
not called as a witness.
128 DECSSIsNS OF NATIONAL LABOR RELATIONS BOARD
At sometime on or before January 10, 1939, Fowler as a committee of one for
the Independent, conferred with E. 0 'Olson, president of the respondent at that
time. Fowler requested that the respondent recognize the Independent as the
bargaining agent for all the employees and presented a copy of the charter and
bylaws to Olson for his approval With respect to this conference, Fowler testi-
fied, and the undersigned finds, that the following conversation took place:
A. I gave him the copy and told hiin I would like to have him look it over
,and see whether he would accept the charter as the board of the Inde-
-pendent union had drawn it up and as it had been accepted by the union
members-employees of the company.
Q. Do you recall what Mr. Olson said?
A. He said he would .3
Within a few days Olson returned ,the copy of the charter and bylaws to Fowler,
signed as follows
Signed and accepted this 10th day of January, 1939, at Worthington,
Minnesota.
Worthington Creamery And
Produce Company
By E. O. Olson
Fowler then had the charter and by laws printed in booklet form, including
Olson's acceptance as, noted above. Fowler testified, and the undersigned finds
that it was the Independent's intention, as bargaining agent for the employees,
to enter into contractual relations with the respondent by having Olson accept
the charter and bylaws. That the respondent, by Olson's signing of the charter
and bylaws, intended to enter into a contract with the Independent as the
exclusive bargaining agent for all employees is clear by reason of the wording
of this document, which in effect is a combination of charter and bylaws and a
contract, embracing provisions relating to the terms and conditions of employ-
ment, and the undersigned so finds.' The record indicates-that neither Olson
nor any other officer of the respondent, with the possible exception of Bergstrom,
attempted to ascertain that the Independent represented a majority of the
respondent's employees before entering into this contract with the Independent.'
Although no foremen were officers or members of the Board of Directors of the
Independent at the time of the hearing, the evidence does disclose that foremen
and other representatives of management's did occupy such positions in the
Independent for at least 3 years after its formation.
' Olson was chairman of the Board of Directors of the respondent at the time of the
hearing, but as noted above, was not called as a witness, although not shown to be
unavailable.
4 Provisions in the charter and bylaws provide that the respondent will deduct from wages
delinquent dues of members of the Independent, that "new employees shall first make
application for membership to the Union" before being permitted to start work for the
respondent, and for seniority rights.
6 In this connection, Bergstrom testified as follows :
I talked to those who attended the meeting-I think, perhaps, the original meeting,
and asked them if they had a majority of the employees there and if the majority of
them were in favor of the union.
6 Fowler, respondent's cashier, and hereinafter found to be a representative of manage-
ment, was an officer and director of the Independent until October 1941.
WORTHINGTON CREAMERY AND PRODUCE COMPANY 129
September 1942 in order to discourage membership and activity in the Union
the Independent.. It was still in effect at the time of the hearing, pursuant to
an automatic renewal clause. The contract contains the following provision :
N. The Company agrees not to hire any employee until such employee
makes an application for membership in the Union as herein provided, and
said Company agrees not to retain any employee in its employ unless such
employee becomes a member of the Union within fifteen days from the
date of such employment.
By the wording of this clause the undersigned believes and finds that the
respondent and the Independent intended thereby to enter into a form of closed
shop agreement During the term of the contract it has been construed as such
by the parties. The evidence supports this finding in that at the time of the
hearing all but a few new employees were members of the Independent, and
in, that the respondent upon the request of the Independent at various times
notified employees that their dues were in arrears. By implication, these notices
threatened discharge unless the dues were paid promptly.
The respondent on an undisclosed number of occasions gave money, ice cream
and other donations to the Independent. The donations were in connection with
picnics and parties sponsored by the Independent. Standing alone, the under-
signed would not consider these donations as material financial support to the
Independent. However, in addition to these donations, the respondent rented
its premises to the Independent for meetings at rates which the undersigned
considers nominal. Accordingly, the undersigned believes and finds that the
respondent contributed financial and other support to the Independent.
Fowler, as cashier for the respondent, clearly was a representative of manage-
ment, although without any supervisory authority? The fact that he and six
foremen were on the organizing committee leads the undersigned to the con-
clusion that the Independent was the creature of the respondent. These fore-
men were responsible for their respective departments and did not have any
general foreman or supervision over them other than from the main office. The
constituency of this organizing committee, the solicitation on respondent's
premises for membership in the Independent by the foremen, and the holding
of the first general meeting on the premises of the respondent, unquestionably
led the employees to believe that the Independent was sponsored and favored by
the respondent.
On all the evidence, the undersigned finds that the respondent dominated and
interfered with the formation and administration of the Independent and con-
tributed financial and other support thereto, and that the respondent thereby
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act. '
Since the Independent is not and never has been the lawful representative of
the respondent's employees for the purpose of collective bargaining in regard
to rates of pay, wages, hours of employment and other conditions of employ-
ment, the contract, any extension, renewal, modification or supplement thereof,
and any superseding contract between the respondent and the Independent are
T Fowler was head cashier, for the respondent and worked in the main office of the plant.
His work brought hint constantly into association with officers of the respondent and in
the eyes of the employees he was clearly identified with management.
130 DECM&IONS OF NATIONAL LABOR RELATIONS BOARD
void and of no effect. Independent of this finding of the invalidity of the above
mentioned contracts , the closed shop provision is invalid , having been made
with a labor organization established , maintained and assisted by unfair labor
practices . Therefore, the closed shop provision does not fall within the proviso
of Section 8 (3) of the Act.
The undersigned further finds that the respondent , by entering into a contract
containing a closed shop provision with the Independent , discriminated in regard
to the hire and tenure and terms and conditions of employment of its employees,
thereby encouraging membership in the Independent and discouraging member-
ship in other unions, and that it thereby interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed them in Section 7 of
the Act.
C. The alleged lock-out
At the Plant, the respondent has a "turkey -picking" department. With a
few exceptions , the employees in this department are women and at all times
hereinafter mentioned , Sarah Ogg, a "checker", had general supervision over it e
Work in the department is seasonal and it is in operation only during the fall
of each year, or from about September to December . For the most part the
employees do not work for the respondent during the remainder of the year.
In September 1939 about 60 or 70 persons were employed in this department.
On or about September 15, 1939 , the employees in the turkey -picking depart-
ment drew up a petition asking for an increase in the piece -rate. The evidence
discloses that Walter Helms, Florence Holm Rol , Celia Koepsell and Eddie
Vestrum were the instigators of the petition and that it was mainly through
their efforts that the petition was circulated among and signed by all but a
few of , the employees in the turkey -picking department . Helms and Vestrum
then presented the petition to Fowler , president of the Independent and cashier,
for the respondent . Fowler first showed the petition to Ogg and then pre-
sented it to Olson , who told Fowler at the time that the respondent was paying
all that it could afford . Shortly thereafter, and about one day after the petition
had been presented to Fowler , Ogg told the employees that there was no more
work and that they would be called back to work by the respondent when needed.
Acting on instructions from Bergstrom , Ogg recalled the employees to work at
the same wages after a lay-off of about 5 days, starting on September 21. Certain
other employees whose work was incidental to turkey-picking and who had
not signed the petition were also laid` off . Helms, Rol, Vestrum , and Koepsell
were not called back to work until a day or two after the other employees had
been recalled , even though Helms, Rol and Koepsell had seniority over many of
the employees.
When announcing the lay-off, Ogg, ' upon being asked by Helms the reason
for the lay-off, told him that he should know .' When employee Minnie Breeze
was called back to work, Ogg told Breeze that she did not think that Breeze
would sign such a paper ( as the petition )." Ogg testified that she "might" have
asked some of the employees concerning the instigators of the petition and
that she thought that Helms, Vestrum, Koepsell and Rol were connected with it.
She further testified and the undersigned finds that these four employees were
not called back to work at the same time as other employees because Bergstrom
8 There is no dispute in testimony with respect to Ogg ' s supervisory status as head of
the "turkey-picking" department.
0 This conversation was testified to by Helms Ogg had been employed by the respondent
during the 1942 season and expected to be employed again in 1943. She was called as a
witness by the Board and did not deny the above statement.
10 This conversation was testified to by Breeze and admitted by Ogg.
WORTHINGTON CREAMERY AND PRODUCE COMPANY 131
had told her to first call back the employees that she felt "... didn't have
anything to do with getting up that petition.""
With respect to this lay-off, Bergstrom testified, and the undersigned finds,
that on or about September 20, 1939, the market for dressed turkeys was weak
and dropping, that it was difficult to dispose of dressed turkeys, that the turkeys
at that time were "green and picked very tough," thus causing low wages to
the piece-rate employees, and that for these reasons and also for the reason that
the turkey pickers were demanding an increase in the piece-rate the respondent
decided on the lay-off until conditions improved.'
It is clear from the evidence that the respondent discriminated against Helms,
Vestrum, Koepsell and Rol by reason of their concerted activities within the
meaning of Section 8 (1) of the Act, and the undersigned so finds 13 However, the
undersigned finds that the respondent did not discriminate against the other
employees in the turkey-picking department. Although the respondent admit-
tedly was influenced to some extent by the petition in its determination to lay-off
the employees, nevertheless the undersigned believes that the lay-off was mainly
caused by financial considerations and was not a deliberate effort to throttle
the concerted activities of the employees involved.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondents have engaged in unfair labor
practices, the undersigned will recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent dominated and interfered with the
formation and administration of and contributed financial and other support
to the Independent. It will therefore be recommended that the respondent with-
draw all recognition from the Independent as representative of its employees
for the purpose of dealing with the respondent concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions of employ-
ment, and completely disestablish it as such representative.
The undersigned, having also found that the respondent entered into an
illegal contract with the Independent providing for a form of closed shop, will
recommend that the respondent cease and desist from giving effect to the contract
of September 17, 1941, or to any extension, renewal, modification, or supplement
thereof, or any superseding contract or agreement which may now be in force.
n Bergstrom admitted instructing Ogg to ask the employees to return to work at the
same wages and did not deny the above statement attributed to him by Ogg.
12 Bergstrom's testimony concerning the weak market and unsatisfactory picking condi-
tions is uncontradicted. The reasons for the lay-off appear reasonable and accordingly, the
undersigned credits Bergstrom's testimony in this respect.
'3 Ogg, when asked whether the delayed recall of these 4 employees was in the nature of
a punishment, replied "I suppose so " The concerted activity of these employees did not
result from any interest or membership in a labor organization Accordingly the under-
signed does not find that the respondent's discrimination against them constituted a
violation of Section 8 (3) of the Act, but that such discrimination constituted interference,
restraint, and coercion within the meaning of Section 8 (1) of the Act. See General
Shale Corporation et al. 26 N. L. R. B. 921,
549875-44-vol. 52-10
132 DECISIONS OF NATIONAL LABOR REfLATIONtS BOARD
Nothing in this recommendation, however, should be taken to require the re-
spondent to vary those wages, hours, and other substantive features with the
employees themselves, if any, which the respondent established in the perform-
ance of such contract, as extended, renewed, modified, supplemented, and
superseded.
The undersigned has found that the respondent has discriminated in regard
to the hire and tenure of employment of Walter Helms, Florence Holm Rol, Eddie
Vestrum and Celia Koepsell because of their concerted activities in endeavoring
to obtain wage increases.for the employees in the respondent's turkey-picking
department.
By reason of this discrimination the above four employees lost wages for at
least one day's work in September 1939. However, a claim covering the above
discriminations was not made by the employees involved until the Union filed
with the Board a second amended charge dated June 16, 1943.. Upon the basis ; f
this amended charge, the Board moved to amend the complaint at the hearing.
Under these conditions the undersigned will not recommend that the respondent
make whole these four employees for any loss of wages resulting from the above
found discriminations.14
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. General Drivers, Helpers, Warehouse, Produce & Creamery Employees Union,
Local 909, affiliated with Teamsters Joint Council No. 34, A. F of L., and In-
dependent Dairy & Produce Workers Union, are labor organizations within the
meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and administration of
Independent Dairy & Produce Workers Union, and by contributing financial
and other support to it, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of its
employees, thus discouraging membership in labor organizations and encourag-
ing membership in Independent Dairy & Produce Workers Union the respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (3) of the Act. -
4. By discriminating in regard to the hire and tenure of employment of Walter
Helms, Florence Holm Rol, Eddie Vestrum, and Celia Koepsell, because of their
concerted activity the respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (1) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is'engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
7. The respondent did not interfere with, restrain, and coerce its employees
by warning them against affiliation with "outside" unions, by disparaging the
A. F. of L. and by granting wage increases.
8. The respondent did not discriminate against its employees in regard to their
hire and tenure of employment by the alleged lock-out and discharge in September
1939.
14 N. L. R. B. V. Metal Mouldings Corp ., (C. C. A. 6) decided April 6, 1943, enforcing as
modified 39 N. L. R. B. 107.
WORTHINGTON CREAMERY AND PRODUCE COMPANY 133
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the un-
dersigned recommends that the respondent, Worthington Creamery & Produce
Company, and its officers , agents, successors , and assigns , shall :
1. Cease and desist from
(a) Discouraging membership in any labor organization of its employees and
encouraging membership in Independent Dairy & Produce Workers Union or any
other labor organization of its employees, or in any other manner discriminating
in regard to their hire or tenure of employment or any term or condition of
their employment ;
(b) Dominating or interfering with the formation and administration of Inde-
pendent Dairy & Produce Workers Union, or the formation or administration
of any other labor organization of its employees, and from contributing support
to Independent Dairy & Produce Workers Union or any other labor organization
of fts employees ;
(c) Giving effect to its contract of September 17, 1941, or to any extension,
renewal, modification or supplement thereof, or to any superseding contract or
agreement which may now be in force with the Independent Dairy & Produce
Workers Union ;
(d) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form, join, and assist
labor organizations , to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, as guaranteed in section 7 of the
Act.
2. Take the following affirmative action which the undersigned finds will
effect the policies of the Act :
(a) Withdraw all recognition from Independent Dairy & Produce Workers
Union as the representative of any of its employees for the purpose of dealing
with the respondent concerning grievances,i labor disputes, wages, rates of pay,
hours of employment, or other conditions 'of employment, and completely dis-
establish Independent Dairy & Produce Woikers Union as such representative,
(b) Post immediately in conspicuous places in all of the respondent's estab-
lishments, and maintain for a period of at least sixty (60) consecutive days
notices to its employees stating: (1) that the respondent will not engage in.the
conduct from which it is, recommended that it cease and desist in paragraph 1
(a), (b), (c) and (d) hereof; and (2) that it will take the affirmative action
set forth in paragraph 2 (a) hereof;
(c) Notify the Regional Director for the Eighteenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply herewith.
It is recommended that the complaint be dismissed insofar as it alleges that
respondent interfered with, restrained, and coerced its employees by warning
them against affiliation with "outside" unions, by disparaging the A. F of L.
and by granting wage increases.
It is further recommended that the amended complaint be dismissed insofar as
it alleges that the respondent discriminatorily "locked-out" and discharged its
employees in `September 1939.
It is further recommended that unless on or before ten ( 10) days from the
receipt of this Intermediate Report the respondent notify said Regional Director
in writing that it will comply with the forgoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the
action aforesaid.
134 DECQ',SIONS OF NATIONAL LABOR REII.Af1ZONIS BOAR
As provided in Section-38 of Article II of the Rules and Regulations of the
National Labor Relations Board , Series 2-as amended , effective October 28,
1942-any party may within fifteen ( 15) days from the date of the entry of
the order transferring the case to the Board , pursuant to Section 32 of Article
II of said Rules and Regulations , file with the Board , Rochambeau Building,
Washington, D O., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding ( including rulings upon all motions or objections) as he
relied upon , together with the original and four copies of a brief in support
thereof. As further provided in said Section 33 , should any party desire per-
mission to argue orally before the Board , request therefor must be made in writ-
ing to the Board within ten (10 ) days from the date of the order transferring
the case to the Board.
JOHN H . EAnnJ,
Trial Examiner
Dated July 14, 1943.