The Folger Coffee Co.

National Labor Relations Board - Board Decisions

Jan 26, 1971

188 N.L.R.B. 141 (N.L.R.B. 1971)

THE FOLGER COFFEE CO.
The Folger Coffee Company and Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO. Cases 15-CA-3781 and 15-RC-4330
January 26, 1971
DECISION , ORDER , AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On October 16, 1970, Trial Examiner Jerry B. Stone
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in certain
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that certain
conduct of Respondent had not interfered with the
election in Case 15-RC-4330 held on April 30, 1970,
and recommended that the Union's Objections 8(d)
and 19 be overruled, and that the results of the elec-
tion set forth in the tally of ballots in that case be
certified.
Thereafter, the General Counsel filed exceptions to
the Trail Examiner's Decision and a supporting brief.
Respondent filed cross-exceptions to the Decision
and a supporting brief as well as a brief answering the
General Counsel's 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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed? The Board has considered the Trial
Examiner's Decision, the exceptions, the cross-ex-
ceptions, the briefs, and the entire record in the case,
and hereby adopts the findings, conclusions,' and rec-
ommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
As all the objections have been overruled, and as
the Petitioner in Case 15-RC-4330 has failed to se-
cure a majority of the valid ballots cast, we shall certi-
fy the results of the election.4
CERTIFICATION OF RESULTS OF ELECTION
141
It is hereby certified that a majority of the valid
ballots has not been cast for Amalgamated Meat Cut-
ters and Butcher Workmen of North America, AFL-
CIO, and that said labor organization is not the exclu-
sive representative of the employees in the unit found
appropriate within the meaning of Section 9(a) of the
Act, as amended.
i On November 30, 1970, Respondent filed a motion to certify results of
the election contending that because the General Counsel is a "nonadversary
party" in Case 15-RC-4330, his exceptions to the Trial Examiner's rec-
ommendation to overrule the objections and certify the results of the election
are improper and should be stricken . Respondent asserts that since the Union
did not file exceptions to the said recommendation of the Trial Examiner,
the results of the election should be certified by the Board forthwith . In view
of our disposition of the case, we need not pass upon Respondent's motion.
2 In view of our disposition of the case , we need not pass upon the proce-
dural validity of the Regional birector 's decision to add Objection 19 to the
Union's objections on the basis of evidence obtained by him during the
investigation of Case 15-CA-3781
3 The Trial Examiner found that Respondent had not violated Sec. 8(axl)
and (3) of the Act, as alleged , but in that part of his Decision entitled
"Conclusions of Law," he inadvertently concluded only that Respondent has
not engaged in conduct violative of Sec . 8(axl) of the Act. We hereby correct
Conclusion of Law No. 3 to read : "The Folger Coffee Company, the Respon-
dent, has not engaged in conduct violative of Section 8(a)(1) and (3) of the
Act"
4 On January 18, 1971, the General Counsel filed a motion for special leave
to file supplemental brief , contending that our recent Decision in Dynatron-
ics, An Operation of the Electronics Division of the General Dynamics Corpora-
tion, 186 NLRB No. 141, warrants reversal of the Trial Examiner 's Decision
herein Respondent filed its opposition to General Counsel 's motion for
special leave to file supplemental brief thereafter , contending, inter aka, that
because General Counsel failed to timely file a brief answering Respondent's
exceptions to the Trial Examiner's Decision, the instant motion in the nature
of an answering brief is untimely , the last date for filing said answering brief
being December 7, 1970. The General Counsel 's motion for special leave to
file supplemental brief is hereby denied as the case cited therein in further
support of the General Counsel's exceptions to the Trial Examiner's Decision
would not warrant reversal of the Trial Examiner 's Decision herein.
TRIAL EXAMINER' S DECISION
STATEMENT OF THE CASE
JERRY B. STONE , Trial Examiner: This proceeding, under
Section 10(b) of the National Labor Relations Act, as
amended , was tried pursuant to due notice on August 4,
1970, at New Orleans , Louisiana.
The charge and amended charge were filed on April I and
June 17 , 1970, respectively. The complaint in this matter
was issued on June 17, 1970.
The Union filed a representation petition with the NLRB
concerning Respondent's employees on February 26, 1970.
Thereafter, pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and approved by
the Regional Director for Region I5 of the National Labor
Relations Board on March 20, 1970 , an election by secret
ballot was conducted in the above-entitled proceedin on
April 30, 1970, under the direction and supervision of the
said Regional Director. Upon the conclusion of the election,
a tally of ballots was furnished the parties in accordance
with the Board's Rules and Regulations.
The tally of ballots showed that there were approximately
141 eligible voters and that 139 ballots were cast, of which
63 were for the Petitioner and 76 were against the Petitioner.
188 NLRB No. 22
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 7, 1970, the Petitioner filed timely objections to
conduct of the election and conduct affecting the results of
the election. The Regional Director caused an investigation
of the objections to be made and thereafter , on June 12,
1970, issued and served on the parties his Report on Objec-
tions . In his report the Regional Director recommended to
the Board that the Petitioner's Objections 1 through 8(c)
and 9 through 18, as designated in his report , be overruled
in their entirety . The Regional Director assigned `Objection
19" to evidence with respect to certain allegations which, he
stated , were developed during the course of the investiga-
tion of the objections . Having found that Objection 8(d) and
Objection 19 raise substantial and material issues which
could best be resolved after a hearing , he ordered that a
hearing be held to resolve such issues and provided for the
consolidation of the case with Case 15-CA-3781 for hear-
ing, ruling, and decision by a Trial Examiner.
Thereafter , on June 25, 1970, the Employer filed timely
exceptions to the Regional Director's Report on Objections
with respect to Objections 8(d) and 19 , urging the Board to
overrule the Petitioner 's objections in their entirety and to
certif the results of the election . On the same date the
Employer filed a Request for Special Permission to Appeal
"from the Regional Director's rulings in which he first es-
tablished, on his own, Objection 19 and then ordered that
a hearing be held on it." T>ie Employer contended that both
the Petitioner and the Regional Director were aware of the
alleged unlawful conduct contained in Objection 19 prior to
the election , that such evidence was not discovered or un-
covered during the investigation of the objections, and that
since the Petitioner failed to mention said conduct in its
objections , it had waived its right to use this issue as grounds
for setting aside the election and the Regional Director
should not have considered Objection No. 19.
The Board duly considered the Petitioner's objections,
the Regional Director's report , the Employer's exceptions
and itsRec(uest for Special Permission to Appeal , and was
of the opinion that issues had been raised with respect to
Objection 8(d) which could best be resolved by a hearing.
The Board found it unnecessary at that time to rule upon
the merits of the Employer's appeal with respect to Objec-
tion 19.
The Board ordered that a hearing be directed on Objec-
tions 8(d) and 19 and that a determination as to the validity
of the latter objection should be held in abeyance pending
further consideration by the Board.'
The basic issues are whether the Respondent (Employer)
(1) threatened employees with layoffs in slack seasons, (2)
announced withholding of a previously promised general
wage increase because of pendency of the election petition
in 15-RC-4330, (3) withheld a wage increase (on February
26, 1970) because of the pendency of the election petition
in 15-RC-4330, and (4) if so, whether such conduct violated
Section 8(axl) of the Act and interfered with the April 30,
1970, representation election as to ( 1) and (2) above, and
whether such conduct violated Section 8 (a)(3) of the Act
and interfered with the April 30 , 1970, representation elec-
tion as to (3) above.
All parties were afforded full opportunity to participate
in the proceeding , and the Respondent and the General
Counsel filed briefs which have been considered.
The General Counsel's motion to correct record, dated
September 3, 1970, and the Respondent's motion to correct
1 The evidentiary findings and conclusions made with respect to Objection
19, as indicated later in this Decision , reveal such objection to be without
ment. Accordingly , even if before me, I would find it unnecessary in this
Decision to pass upon the procedural validity of Objection 19.
record, dated September 2, 1970, have been marked re-
spectively as Trial Examiner's Exhibits I and 2 and are
hereby received into the record. No opposition has been
filed to such motions.
Upon consideration of the motions, the record in the
case, and my recollection of such statements at the hearing,
I hereby grant such motions and the record is accordingly
corrected.
Upon the entire record in the case and from my observa-
tion of witnesses, I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER 2
The Folger Coffee Company , the Respondent, is, and has
been at all times material herein , a corporation duly organ-
ized under and existing by virtue of the laws of the State of
Ohio. Respondent is licensed to do business, and is doing
business , in the State of Louisiana at its New Orleans, Loui-
siana , plant where it is engaged in the manufacture of cof-
fee.
During a 12-month period, which period is representative
of all times material herein , Respondent shipped products
valued in excess of $50,000 from its New Orleans , Louisia-
na, plant directly to points outside the State of Louisiana.
During the same representative period, Respondent pur-
chased and received at its New Orleans , Louisiana, plant
goods and materials valued in excess of $50,000 which were
shipped directly from sources located outside the State of
Louisiana.
As conceded by the Respondent , and based upon the
foregoing, it is concluded and found that the Respondent is,
and has been at all times material herein , an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II THE LABOR ORGANIZATION INVOLVED 3
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, the Union, is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act. It is so concluded and
found.
III. THE UNFAIR LABOR PRACTICES
THE OBJECTIONS TO THE ELECTION
A. Preliminary Issues
Supervisory Status 4
The individuals named below are now, and have been at
all times material herein, supervisors of Respondent within
the meaning of Section 2(11) of the Act:
Aubrey L. Crow Plant Manager
Oscar A. Berger Shift Supervisor
Pete Carruthers Instant Processing Foreman
B. The Alleged Threat of Reprisal
The General Counsel's complaint in paragraph 7 alleges
that "Between February 26, 1970, and Apri130, 1970, at its
New Orleans, Louisiana, plant, Respondent, by its supervi-
2 The facts are based upon the pleadings and admissions therein.
3 The facts are based upon the pleadings and admissions therein
4 The facts are based upon the pleadings , admissions therein , and stipula-
tions by the parties
THE FOLGER COFFEE CO.
sor and agent, Oscar A. Berger, orally threatened certain
employees by informing them while they were together that
is the union came in there would probably be layoffs during
slack seasons."
The Charging Party's objections alleged in Objection 8(d)
that "[t]hrough statements and other conduct of the Em-
ployer , its agents , and others acting on behalf of the Em-
ployer, employees were led to believe that if the union won
the election . . . (d) [t]he employees would be laid off, in
slack periods contrary to what they were doing now if the
union won."
The Regional Director's Report on Objections set forth
as follows:
During the course of the investi gation , evidence was
presented concerning statements allegedly made by su-
pervisors of the Employer with respect to layoffs which,
if made , would constitute activity in violation of Sec-
tion 8(a)(1) of the Act and activity which would war-
rant setting the election aside . The supervisors who
allegedly engaged in this conduct , that dates of such
alleged misconduct , and the statements attributed to
them will be the subject of a complaint to be issued at
a later date in Case No. 15-CA-3781, alleging such
conduct as violations under Section 8(a)(1) of the Act.
The statements attributed to the various supervisors are
contested by them . Accordingly , Objection 8(d) raises
substantial and material factual issues which can best
be resolved after a hearing.
The facts are undisputed and may be summarized as
follows : The background facts reveal that since 1965 the
Respondent had not effectuated layoffs during slack sea-
sons . Berger, Respondent 's supervisor involved herein, had
been employed by Respondent for 27 years . However, he
had been at the Respondent 's site involved herein for only
2-1/2 years . As indicated , during this time Respondent had
not effectuated layoffs during slack seasons.
Berger, during the pertinent time involved , was one of
four shift supervisors. It appears that Respondent utilized
four supervisors so as to be able to man three shifts through-
out the week and to afford time off for the supervisors.
Respondent 's employee complement appears to have been
around 140 employees with apparently 35 employees on
each shift . Berger had supervisory authority to be in charge
of his shift, to supervise operations of the machinery, to see
that manufacturing standards were met , to see that quality
was met with respect to products . Berger did not have au-
thority to hire employees , did not have authority to de-
termine the size of his work force , did not have authority to
lay off employees because of lack of work , and did not have
authority to decide with respect to enlargement of his work
force or to decrease his work force with respect to layoffs.
Berger, however , had authority to terminate an employee on
his shift for cause.
The incident in issue herein arose as follows . Two admit-
tedly active union adherents approached Berger in the shift
supervisor 's office during the last part of March and during
the "graveyard" shift .5 These employees appeared in the
office on their own initiative and without request by Berger.
What transpired then is best revealed by the following cred-
ited excerpts from Berger's testimony.
Q. Prior to that election , do you recall then discuss-
ing possibility of layoffs if the union won the elec-
tion with any Folger employees?
3 Apparently a shift scheduled to work around midnight or the early morn-
ing hours.
Berger was the only witness presented by the General Counsel as to this
incident.
143
A. I was asked about that, yes, sir.
Q. You were asked what? You were asked about it;
could you specifically state what the question was that
you were asked and by whom?
A. I was asked was there a possibility of a layoff if
the union came into the plant. My answer was yes,
there probably would be, during the slack season, but
that I didn't know.
Q. How many employees were present when you
were asked?
A. Two.
Q. Do you recall who it was?
A. Eugene Quinlan and Oscar Slaton.
Berger further credibly testified to the effect that these
employees freely came to see him to ask questions during
the election campaign and that they continued to do so after
this incident. Berger further credibly testified to the effect
that Quinlan was the employee who asked the question
about layoff.
Considering all of the foregoing, I am persuaded and
conclude and find that such conduct did not constitute a
threat of reprisal in violation of Section 8(a)(1) of the Act
and that the conduct did not constitute objectionable con-
duct which interfered with the employees' rights as pertains
to the pending election on April30, 1970. As I see the facts,
Berger conveyed to these employees that he did not know
the answer to their question and'that it was merely his
opinion that the results of the Union getting in at Folger
might be layoffs during slack seasons . Under such circum-
stances the facts do not reveal an intended threat, nor do the
facts reveal'that the employees reasonably would construe
that a threat of reprisal had been made . Accordingly, it is
concluded and found that such conduct does not constitute
a violation of Section 8(a)(1) of the Act, nor does it consti-
tute objectionable conduct of a nature to warrant setting the
representative election of April 30, 1970, aside. It is so con-
cluded and found.'
C. Alleged Withholding of Wage Increases
and Announcements Thereto
The General Counsel's complaint sets forth as follows:
8.
Between February 26f 1970, and April 30, 1970, at its
New Orleans, Louisiana, plant, 'Respondent, by its su-
pervisor and agent, Aubrey L. Crow, orally announced
the withholding of a previously promised general raise
by informing certain of its employees that the analysis
the recent wage survey had been discontinued be-
cause the granting of raises after an election petition
had been filed might be an unfair labor practice.
9.
Since on or about February 26, 1970, and continuing
thereafter to date, Respondent withheld, and is with-
holding, wage increases normally granted to its em-
ployees.
10.
Respondent withheld, and is continuing to withhold,
wage increases normally granted to its employees, as
described in paragraph! , above, because of their union
and other protected concerted activities and/or be-
cause of the representation proceedings in Case No.
15-RC-4330.
The Regional Director's Report on Objections sets forth:
7 See Central Soya of Canton, Inc, 180 NLRB No. 86; William B . Patton
Towing Co., 180 NLRB No. 16.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Objection No. 191
During the course of the investigation, evidence was
developed with respect to allegations that the Company
had ceased consideration of a general wage increase
and had withheld any such increase because of the
pendency of the petition in Case No. 15-RC-4330 and
the Union's organizational compaign . Evidence per-
taining to this subject raises issues with respect to the
validity of the election and, as is the case with Objec-
tion 8(d), this conduct will be set forth in the complaint
in 15-CA-3781 as alleged violations of Section S(axl)
of the Act. Accordingly , objection 19 raises substantial
and material issues which can best be resolved after a
hearing.
I This number was assigned to the objection by the undersigned
[Regional Director ] and is based upon evidence obtained during the
course of the investigation with respect to the objections and the alleg-
ed unfair labor practices in Case No 15-CA-3781.
The facts are essentially without dispute .8 The Respon-
dent in past years has given general wage increases, merit
wage increases, and progression wage increases. It is undis-
puted that during the pertinent time herein that Respondent
continued its past practice of giving merit wage increases
and progression wage increases . The only wage increase
issue is with respect to general wage increases.
The facts are clear that with respect to general wage in-
creases Respondent had a practice as is revealed by the
following credited excerpts of Crow's testimony.
A. As I said this morning, I have from eight to ten
people on our wage survey . It begins with a wage sur-
vey. After you make the wage survey, and sometimes
it takes me as long as from a month to two or three
months to make the wage survey , and I get all of the
information in from the companies on my wage survey,
and then I make an analysis at this point, how do we
compare with the other people on the wage survey, how
long has it been since we gave the last increase, how
much was their last increase? How does that compare
with the other people on my wage survey.
At that point , that is done completely with local
companies, and at that point I analyze the wage survey
completely , and I make a recommendation of what the
wage increase should be.
The first thing to determine is if there is going to be
a wage increase at all , if there is going to be a wage
increase , what amount do I recommend . And at that
point I send my recommendations to our employee
relation division department.
Our employee relation department takes my analysis
and they look at it as a broader picture . They look at
it nationally, what has happened to the economy, and
since the previous increase, and they get back with me
and say that they agree with my amount or they think
my amount is not enough or too much.
-We converse back and forth until I have agreed that
yes, this is the amount.
Then after that we determine when will the time be.
Q. Now was this same procedure followed in 1965,
1966, 1967 , 1968, and 1969?
A. That is correct.
During the years 1965 through 1969 the following data
reveals the timing of certain Respondent action with respect
to general wage increases and the amount of general wage
increases.
YEAR
DATE WAGE
SURVEY BEGAN
DATE RECOMMENDATIONS
SUBMITTED TO EMPLOYEE
RELATIONS DEPARTMENT
DATE OF
INCREASE
AMOUNT OF
INCREASE
1965 4/5/65 5/28/65 6/14/65 7 cents
1966 5/8/66 5/23/66 6/13/66 8 cents
1967 1/16/67 3/15/67 6/5/67 15 cents
1968 3/14/68 4/30/68 5/27/68 15 cents
1969 2/ 14/69 3/7/69 3/31/69 6 cents
Range 15
cents to
20 cents
Plant Manager Crow commenced making a wage survey
in January 1970. This survey was completed sometime prior
to Feburary 26, 1970 , and Crow at such time had com-
menced analyzing his survey? On or about February 26,
1970, Crow received a letter from the Union setting forth its
claim of representing the majority of his employees. The
next day row received a copy of the representation peti-
tion filed by the Union with the NLRB on February 26,
1970.10 Thereafter, on March 4 , 1970, Crow conferred with
his attorney about the situation . What occurred is revealed
by the following credited exerpts from Crow 's testimony.
s The facts based upon a composite of the credited aspects of the testimony
of Slaton , Hudson , and Crow , stipulations , and the logical consistency of all
of the facts.
A. After I received the letter and the petition, I was
concerned about what I should do about continuing to
analyze the wage survey, or whether I should make a
recommendation at all.
I checked with the company's attorney.
9 The facts are clear that during this time some of Respondent 's employees
were aware that a wage survey was being made . Crow credibly testified to
such effect, that people talk freely about surveys and wage increases and that
some of the other managers had said that they had been asked if a survey
were going to be made that year.
10 It is officially noted that the representation petition in Case 15-RC-4330
was filed with the NLRB on February 26, 1970.
THE FOLGER COFFEE CO.
A. I described to him that we had given general wage
increases in the past , how we make the survey, how we
analyze the survey , how we made recommendations to
the Employee Relations Department , and how we de-
termined the amount and the time.
I also told him where I stood at this point in the
survey.
He reviewed the data that I had given him, and it was
determined from reviewing this data that in the past we
did not have a past history of giving an increase at a
certain time of any year.
All the wage increases had been given at different
times , and they had been , there had been I believe two
of them the same amount , although the rest of them
were different.
So it was determined by our past history that we
didn't have a practice of giving them a certain amount
or at a certain time.
He advised me that since we did not have this prac-
tice or past history of giving an increase at a certain
time , or a certain amount , that we would be laying
ourselves open to possible charges by the union that we
were trying to bribe our employees.
After we had the meeting with the attorney and dis-
cussion as to what should be done, I decided that it
probably would be better, since we did not have a past
history of giving an increase at a certain or a certain
amount, I was concerned that if I did complete it, did
make the recommendation, and it was approved, if it
was earlier than any time before, or if the amount was
more than any time before, that very possibly I would
be opening myself to a charge.
At that time I decided thatl would not complete my
analysis, and I would not make a recommendation un-
til later.
Q. When did you make this decision?
A. The next day following the meeting with the attor-
ney, which would have been I guess March the 5th or
the 6th. The meeting was the 4th. I'm pretty sure that
it was the next day.
Following the above-referred to decision to cease analyz-
ing the wage data and to withhold forwarding of a rec-
ommendation concerning general wages increases, Crow
did not make a formal announcement, written or oral, to the
employees about such decision. During the time between
the filing of the representation petition in Case 15-RC-4330
on February 26, 1970, and the NLRB representation elec-
tion on March 5, 1970, the Respondent held a number of
meetings for discussions with employees. These meetings
may be said to have been for employees on shifts or in
departments. At one of these meetings in March, apparently
around the first or second week thereof, an employee named
Quinlan asked a question about the situation with respect
to a general wage increase.11 Plant Manager Crow told the
employees, in effect, that the wage survey had been com-
pleted but that the analysis of the wage survey had been
stopped after receiving (1) the Union s letter demanding
recognition as employee representative, and (2) the repre-
sentation petition in Case 15-RC-4330. Crow told the em-
ployees the reason that he had stopped the analysis of the
11 The particular meeting involved occurred around shift-changing time
about 7 a .m and there were in attendance employees of the graveyard shift
and the day shift.
145
wage survey, as is revealed by the following credited ex-
cerpts from his testimony.12
A. That I told him that I had completed a wage
survey and was in the process of making an analysis of
the survey when I received a letter from the union
stating that they represented the majori ty of the em-
ployees, and that immediately thereafter received a pe-
tition for an election; since we did not have a past
practice of giving a wage increase on a specific date or
a specific amount, that we felt that it would be laying
ourselves open to charges by trying to bribe the em-
plo ees byy giving wage increases during this time.
( During which time, please?
A. The time when we received the petition for an
election, and the election.
The NLRB representation election was held on April 30,
1970, with a majority of the ballots being cast against the
Union. A day or two later Plant Manager Crow spoke to
employees at a meeting as is best revealed by the following
credited excerpts from his testimony-"
A. I told them the outcome of the election, the vote for
and against union representation.
Q. Anything else?
A. I told them that it would be approximately ten days
that each side would have an opportunity to file objections,
and it would be approximately ten days before the election
would be certified.
Q. You say anything else at these meetings?
A. No.
Q. Specifically did you mention the general wage increas-
es at these meetings?
A. The wage increase was not mentioned at the meeting
or the wage survey was not mentioned.
The Union filed objections to the April 30, 1970, NLRB
representation election in Case 15-RC-4330 on May 7,
1970. Shortly thereafter, Plant Manager Crow spoke to em-
ployees about these events as is best revealed by the follow-
ing credited excerpts from Hudson's testimony.14
A. He said, that's when he had received the charges
from the Labor Board, and evidently the secretary or
somebody must have brought the mail in , and he siad
that he was looking over the pay scales and the records,
and said, they brought the mail in, or whoever brought
it in, and said that he was looking over the pay scales,
and they brought the charges in, and he dropped the
pay scale and immediately began to look at the charges.
During the period of time between April 30, 1970, and
May 7, 1970, employee Quinlan asked Foreman Carruthers
about wage increases. What occurred is revealed by the
following credited excerpts from Quinlan's testimony.
12 Only Quinlan's testimony appears in real conflict with the facts found.
Quinlan testified to the effect that Crow had said he was prepared to give
a general wage increase. As indicated elsewhere , Quinlan appeared unsure
as to some of his testimony and appeared to testify to a rationalized conclu-
sion of facts. Considering this and the logical consistency of all of the facts,
I discredit Quinlan's testimony inconsistent with the facts found.
is Slaton and Hudson testified to this event in substantially the same terms
as did Crow Quinlan's testimony was to the effect that Crow again referred
to the postponement of general wage increases because of the pendency of
the representation proceeding . Quinlan did not appear suns in his testimony,
and I am convinced that his testimony constitutes a rationalized conclusion.
I discredit his testimony to such effect because of its unsureness, its rational-
ized appearance , and the logical consistency of all of the facts
14 Crow denied that he referred to general wage increases at this meeting.
Otherwise , there is little conflict between Hudson 's and Crow 's testimony.
Quinlan's testimony as to this event essentially corroborates Hudson 's testi-
mony. Of the two witnesses , Hudson and Crow, Hudson's testimony had
more of a ring of truthfulness and sureness Considering this and the logical
consistency of all of the facts , I credit Hudson's version of the facts and
discredit Crow's testimony inconsistent therewith.
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, somebody else, Mr. Carruthers, he asked me
during the ten day period asked me if the union was
going to press charges against the company . I said I
don't know. I said, `How do you want me to know, I
don't have nothing to do with it."
He said because, I asked him for our raise , I said,
"Do you know when we will be getting a cost of living
raise?"
And he said,"Well, probably not right now, we got
to wait for the ten day trial period to find out whether
the union is going to press charges or not."
Sometime shortly after the April 30 NLRB representation
election, Plant Manager Crow resumed his preparatory con-
sideration of the general wage increase question . Knowing
that some of the companies included in his original wage
survey had in the past given wage increases around the time
involved, Crow rechecked to see if there had been any
changes in wage structures . There had been several changes
in some of these companies' wage structures as a result of
wage increases. Crow brought his data up to date, reana-
Iyzed the same, and submitted the data and his recommen-
dation to Folger's employee relations department.
Afterward Crow had further discussion with such depart-
ment resulting in agreement upon a general wage increase.
On June 4 , 11970, Respondent announced a general wage
increase for employees to be effective on June 8, 1970. The
general wage increase constituted , in effect, for each em-
ployee an increase of 7 percent or 20 cents per hour,
whichever amount was greater.
Contentions and Conclusions
The Respondent , in the prehearing stage of this proceed-
ing, moved for a bill of particulars , the General Counsel
responded thereto , and Trial Examiner Schneider ruled
thereon . Therefore , the issues in this case were clearly
shaped by the pleadings . Thus, the litigated issues con-
cerned whether there was an announcement by the Respon-
dent of the withholding of a previously promised general raise
and the reasons therefor , and the withholding of wage in-
creases normally granted to employees.
Considering all of the facts and the foregoing , I conclude
and find that the facts do not reveal that the Respondent
had previously promised the employees a general raise. It
follows that the remarks by Plant Manager Crow on or
about the middle of March did not constitute an announce-
ment of the withholding of a previously promised general
raise . Further , the facts do not reveal that Respondent had
followed a practice of giving general wage increases in Feb-
ruary, March, or April of each year . It thus further follows
that the facts do not reveal that the Respondent in Feb-
ruary, March, or April, 1970, withheld general wage increas-
es normally granted to employees.
The General Counsel and the Respondent cite a number
of cases which on their face appear to suprt their re-
spective contentions relating to the question 61 illegal moti-
vation or improper interference based upon the timing or
circumstances of wage increases . Considering the facts of
this case , I find it proper to state that th e facts reveal that
the Respondent had not decided upon a general wage in-
crease but had stopped preparatory consideration of the
same prior to decision . Considering the Respondent's lack
of a consistent past practice with respect to the granting of
general wage increases at the time involved and the credited
facts as to the reasons for cessation of preparatory consider-
ation of a general wage increase , I am persuaded and con-
clude and find that the Respondent was motivated by
nondiscriminatory reasons in the decision to cease such
preparatory consideration of a general wage increase. I am
convinced, persuaded, and conclude and find that the Re-
spondent was not motivated by a desire to (1) either encour-
age or discourage union membership , (2) either encourage
or discourage the utilization of Board 's processes such as the
filing or processing of an NLRB representation petition, or
(3) make promises of benefit or threats of reprisals related
to union activity or protected concerted activity. Thus I am
persuaded, convinced, and conclude and find that Crow's
motivation was purely one of attempting to avoid the ap-
pearance of "bribery' or exertion of improper influence
upon employees by the possible granting of a general wage
increase during the pendency of the union campaign and
the pendency of an NLRB representation election. Further,
I am persuaded, conclude, and find that the statements
made by Crow to the employees about the cessation of
preparatory consideration of a general wage increase clearly
revealed to the employees that such was not motivated by
reasons of a desire to discriminate against them because of
their union or protected concerted activity or because of the
filin or processing of the NLRB representation petition.
Thefacts clearly do not reveal elements of reprisal or prom-
ises of benefit to employees designed to affect their union
or concerted activity, or to affect utilization of the Board's
processes.
In making the foregoing determinations I have consid-
ered the cases cited byboth the Respondent and the Gener-
al Counsel. As indicated, the cases cited by each appear to
support his contentions. Suffice it to say, however, the es-
sential principles in the cases, upon which the facts or state-
ments in such cases relate to, reveal that the questions for
determination are (1) motivation by Respondent or (2) what
the employees would reasonably infer the Respondent's
motivation was. As indicated, the facts in this case do not
reflect that the Respondent (Employer) was improperly mo-
tivated in his actions, nor do they reveal that the employees
would so infer. Accordingly, I conclude and find that the
facts do not reveal that Respondent (Employer) has violated
(1) Section 8(a)(1) of the Act as alleged, or (2) Section
8(a)(3) of the Act as alleged. I further find that the Employer
has not engaged in objectionable conduct as alleged in Ob-
jection No. 19.15
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Folger Coffee Company, the Respondent, is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Folger Coffee Company, the Respondent, has not
engaged in conduct violative of Section 8(aXI) of the Act.
4. The Folger Coffee Company, the Employer, has not
engaged in conduct which improperly affected the results of
the April 30, 1970, election in Case 15-RC-4330, as alleged
by the Petitioner in Objections 8(d) and 19.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and con-
clusions of law and the entire record, I hereby recommend:
15 Thurston Motor Lines, Inc, 180 NLRB No 140; Paradise Bowl-O-Mat,
Inc, 180 NLRB No. 100.
THE FOLGER COFFEE CO. 147
1. That the complaint in Case 15-CA-3781 be dismissed
in its entirety.
2. That the Objections (8(d) and 19) in Case 15-RC-4330
be overruled and that a certification of the results of the
election held on April 30, 1970, be issued.