Wilson and Co., Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1951

95 N.L.R.B. 882 (N.L.R.B. 1951)

882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
WILSON AND COMPANY, INC. and AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH AMERICA, AFL. Cases Nos. 16-CA-
306 and 16-RC--578. July 31,1951
Decision and Order
On February 5, 1951, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled consolidated proceedings
finding that the Respondent had not engaged in unfair labor practices
and recommending that the complaint herein be dismissed in its en-
tirety as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner further recommended that the objections
to the election filed herein by the Union be overruled, and that Union's
request to set aside the election of September 8, 1950, be denied.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in this case and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that in Case No . 16-CA-306 the com-
plaint against Wilson and Company, Inc., Oklahoma City, Oklahoma,
be, and it hereby is, dismissed, and
IT IS FURTHER ORDERED that in Case No. 16 -RC-578 the petition for
certification of representatives filed by the Union therein be, and the
same hereby is, dismissed.
CHAIRMAN HERZOG, dissenting :
I cannot agree with my colleagues ' conclusion that the complaint
should be dismissed and the Employer 's interference with the election
excused.
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman Herzog and Members Reynolds and Murdock].
95 NLRB No. 103.
WILSON AND COMPANY, INC. 883-
The Trial Examiner found , and my colleagues do not reverse his
finding, that shortly before the election Superintendent Kellert inter-
rogated an employee about his union affiliations , and Foreman Hicks
questioned two employees about theirs . Another foreman remarked
to an employee ,., that- he was likely to be discharged for his union
activity.
I do not regard such activities on the part of responsible super-
visors as isolated 'incidents of no serious significance . It is well estab-
lished that such acts constitute interference with employees' free
choice of representatives and warrant setting aside elections 2 Such
interference was not overcome by the Respondent's separate action
in permitting the Union to take credit for a wage increase . Precedent
requires that Respondent's unlawful conduct be counteracted by a
notice to all employees informing them of their rights under the Act.
Intermediate Report .
STATEMENT OF THE CASE
A charge having been duly filed by Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL, herein called the Union, in Case No. 16-CA-
306; objections having been filed by the Union on September 13, 1950, to an
election held in. connection with Case No. 16-RC-578; the Regional 'Director
for the Sixteenth Region (Fort Worth, Texas), of the National Labor Relations
Board, herein called the Board, having on October 17 issued his report on
objections -to election recommending that the election be set aside; exceptions
to said report having been filed on October 20 by Wilson and Company;"Inc.,
herein called the Respondent ; on December 12, 1950; the General Counsel of
the National Labor Relations Board, herein called General Counsel, by the
Regional Director issued a complaint against the Respondent alleging that it
had engaged in unfair labor practices affecting commerce within the meaning
of. Section 8 (a) (1) and Section 2 (6) and (7) of the National Labor Relations
Act, as amended, herein called the Act ; also on December 12 the Regional
Director issued an order consolidating the two cases and a notice of hearing.
Copies of the charge, order consolidating cases, complaint, and notice of hearing
were duly served upon the Respondent and the Union.
With respect to unfair labor practices the complaint alleges, in -substance,
that the Respondent at its Oklahoma City, Oklahoma, plant: (1) In August
19.50, and through certain of its agents, interrogated its employees concerning
their. union affiliations, warned them against joining or assisting the Union,
and kept under its surveillance union meetings and activities; and (2) by this
conduct interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed by -Section 7 of the Act.
On December 21, 1950, the Respondent filed its answer, in which it denied having
engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held at Oklahoma City, Okl"ahoma, on Janu-
ary 8 and. 9, and at Chicago, Illinois, on January 15, 1951, before the under-
signed Trial Examiner, duly designated by the Chief Trial Examiner. The
General Counsel and the Respondent were represented by counsel ; the Union by
2 U. S. Rtibber Co. (Scottsville Plant), 86 NLRB 3; Standard-Coosa-Thatcher Company,
85 NLRB 1358; Majestic Metals Specialties, Inc:, 92 NLRB 1854.
961974-52=vol. 95-57
'884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an official. Full opportunity to. be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded all parties.
At the conclusion of the hearing counsel waived the opportunity to argue orally
and to file briefs.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following: ,
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Wilson and Company, Inc., is a Delaware corporation having its principal
office and, place of business in Chicago, Illinois. It operates 9 meat-packing
plants in as many States and about 85 branch houses throughout the United
States. Its plant at Oklahoma City, Oklahoma, is the only plant involved in
this proceeding. At this plant the Respondent purchases,. assembles, and
slaughters livestock and processes, manufactures, and distributes various meat
products and byproducts. During the past year it purchased and slaughtered
at this plant more than 500,000 pounds of livestock valued at more than $100,000,
about 25 percent of which represented purchases outside the State.of Oklahoma...
During the same period it sold finished products valued at more than $100,000,
about 50 percent of which was sold and shipped outside the State of Oklahoma.
The Respondent employs about 1,200 persons at this plant who were included
in the unit found appropriate and concerned in the Board election above referred
to.
The Respondent concedes that it is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America,' AFL,
is a labor organization admitting to membership employees of the Respondent
at its Oklahoma City plant.
III. THE ALLEGED UNFAIR LABOR PRACTICES
It appears to the Trial Examiner that the major issue raised by the consolidated
cases is whether or not in August, shortly before the Board-conducted election,
the Respondent granted a wage increase for the purpose of influencing em-
ployees to vote against the Union. There is no dispute as to the fact that a
substantial wage increase was granted to the Oklahoma plant employees, vol-
untarily on the part of the Respondent, effective as of August 11: Nor does the
record contain any effective challenge of the Respondent's explanation, voiced
through pits counsel as a witness, of the reasons for the increase. ' In substance,
it appears that the Respondent's decision to increase wages was not limited to
the Oklahoma City plant, the only unorganized unit of its considerable chain,
but was simultaneously extended to its other midwestern plants, in accordance
with previous custom. It was at that time, and for some time in the past, the
practice of the Respondent to adjust its wage structure at such plants to meet
the level existing in the meat packing industry generally. In accordance with
this practice, the Respondent decided on or about August 17 to raise its wage
.level to be in line with argeements which the Union had just reached with cer-
tain other leading employers in the industry.
Nor is there any dispute that the Respondent's counsel, the decision having
been made, immediately telephoned to the union president, Earl W. Jimerson,
referred to the increase won by the Union in negotiations with other packers,
WILSON AND COMPANY, INC. 885
reminded him of the previous practice of the Respondent in meeting the pattern
wage level, and announced his intention of putting the same increase into
effect at the Oklahoma City plant.. Counsel Winkler explained that he called)
Jimerson
For the reason that I knew his union had an interest, and I did not want
to do anything that would jeopardize any question that might arise on the
election down there.
There is a marked dispute, however, in the testimony of Winkler and Jimerson
as„to the latter's comment upon the proposed increase. Winkler testified as
follows :
Mr. Jimerson replied that he could not see anything wrong with that and
told me that what he would do was write to his men and tell them about
it and suggest to them that they get out a bulletin in which the union, his
union, would take credit for getting the eleven cent general increase at our.
Oklahoma City plant. I said, "Well, that is up to you."
Jimerson, on the other hand, testified :
At that time I said to. him that I thought probably it would be an unfair
labor practice to put the eleven cents into effect at Oklahoma City due to
the fact that there was an election, being held a short time thereafter.
On cross-examination, however, Jimerson admitted having told Winkler
that I was going to write a letter to our representatives down there, urging
them to get a pamphlet out to take credit for obtaining the eleven cents for'
the employees at Oklahoma City, to offset the effect that the eleven cent
increase might have upon the outcome of the election.
Thereafter there was introduced into evidence a union circular, apparently'
distributed before the election, which said, among other things :
THE UNION IS GETTING AN ELEVEN CENT INCREASE FOR YOU ....
The record contains no evidence that the Respondent made any effort to-
dispute the Union's published claim that it was responsible for obtaining the-
Increase.
Whether or not Jimerson ventured a belief that granting it might be an "unfair
labor practice," the undisputed circumstances which occasioned the increase and,
the fact that the Respondent willingly permitted the Union to take credit for'
obtaining the increase convinces the Trial Examiner, and he finds,. that th&
evidence fails to support the Union's claim, in its objections in Case No. 16-RC-
576, that the raise was granted "for the purpose of influencing" employees "to"
vote against the union."' Consequently it will be recommended that this ob-
jection be overruled.
As to allegations involving restraint and coercion, appearing generally in the
Union's objections and more specifically in the complaint, the• record contains-
evidence involving only four of the Respondent's 1,200 employees in an election)
which the Union lost by a vote of 884 to 217.'
The complaint contains no allegation that the granting of this wage increase was ant
unfair labor practice within the meaning of the Act.
2 Among these four employees the Trial Examiner does not include Isabel Lopez, the
substance of whose testimony was to the effect than a watchman simply said to him, "I
wish you would change your mind about voting for the union . . . Even if•'evidence had('
established the watchman to be a supervisor , the remark was plainly not coercive, and'
contained no threat of reprisal. Nor can the Trial Examiner construe the watchman's
'opening question : "What do you think about the union," under the,circumstances • described)
by Lopez, as proscribed interrogation.
886 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
About 3 weeks before the election employee Fred Russ, who thereafter served
as a union observer at the election, was called to the office of Superintendent A.
M. Kellert, and questioned as to whether or. not he had taken a certain list of
employees which had been in some foreman's possession. Russ denied having
taken the list, or having turned it over- to _ the. Union. _ Although denied by
Kellert, Russ testified credibly that during the conversation Kellert asked him
if he belonged to the Union or had signed a card 3
Although confused testimony of all witnesses involved makes fixing of the
precise dates impossible, it appears that 2 or 3 weeks before the election Foreman -
Leland R. Hicks questioned two female employees under his supervision as to
their union activities. The credible testimony of the two women, obviously
tendered reluctantly, establishes and the Trial Examiner finds that Hicks: (1)
Asked Ada Brown if Mable Hackett had "given" a union meeting and if she
had attended; (2) telephoned to Mabel Hackett at her home and told her that
he had heard she had signed a union card and would "see" her the next day;
and (3 ) the following day at the plant told her he did not see why she was
"stirring up union troubles," and, when she asked if she was to be "fired,". told
her that she was not but that "people had been. fired for a lot less than that."
The final incident involved employee Joseph Liles, who also. served as an
.observer for the Union at the election, and H. T. Proctor, supervisor of the
guards. Their testimony is in agreement that on two occasions they discussed
the Union at the plant gate. ' There is sharp dispute as to what was said. On
one occasion, according to Liles, Proctor told him that Superintendent Kellert
knew he was showing a union contract around the plant and did not like it, and
on the second occasion said he heard the employee was calling on employees at
their homes, declared that the Union was "Communism," and threatened that
if "they" set foot on the premises he would "machine gun them down like they
was a bunch of dogs." Even if Liles' version of the first conversation were to -be
accepted as true, the Trial Examiner perceives nothing in it reasonably to be
construed as restraint or coercion. 'As to the "machine gun" threat, Proctor
denied having made it. According to him the two, as'fellow Masons, had dis-
^cussed the question as to whether or not there was any connection between that
order and organized labor. Having observed the two witnesses, the Trial Ex-
•aminer is -unable wholly to believe either one. It is unlikely that Proctor,
himself a former AFL business agent, would have questioned a plant employee
-on the point he claimed. Since Liles was admittedly known by Proctor to be
organizing for- the Union, and no personal threat was made, it is reasonable
under conditions not limited to Oklahoma City to believe that, if voiced 'at all,
Proctor's vow to use a machine gun, which he did not possess, was in reference
to Communists generally. In summary, upon the evidence in the record the
Trial Examiner is unable to find that either by utterance or by conduct Proctor
engaged in interference, restraint, or coercion.
The testimony of Liles and Foreman C. O. Fowler is also in dispute as to
whether or not the latter on one occasion referred to the Union as a "bunch of
son-of-a-bitches" and said he would be glad to have an election so they "could
beat their ears down" ; and on another occasion told the employee that Kellert
knew he was active in the Union, did not like it, and was liable to fire him.
Fowler admitted having had the two conversations with the employee, who was
The resolution of credibility in this instance rests not only upon the Trial Examiner's
observation of both witnesses, but the probabilities inherent in the occasion as described
by both-Kellert 's effort to find out whether or not Russ had in fact appropriated the list
and given it to the Union. It is reasonable to suppose that.the superintendent, attempting
to determine the validity of Russ' denial , would have questioned his association with the
Union.
MONTANA DAKOTA UTILITIES CO. 887
not under his supervi ion, but either denied or said he did not remember having.
made the remarks ascribed to him by Liles. Although the.testimony of each was
weakened somewhat on cross-examination, having observed the two on the stand
the Trial Examiner believes that Fowler did express to Liles the belief that
Gellert was liable to discharge him for his union activity, made critical com-
ments about the Union, and voiced the hope that at the election its "ears" would
be "beaten down."
The foregoing are the incidents upon which the' allegations of the complaint
and the objections to the election must find support. Specifically, it has been
found that Gellert asked one employee about his union affiliation,--that Hicks
questioned two employees about their union activities, and Fowler made a remark
to a fourth employee which might be so strained in interpretation as to con-
stitute a warning of discharge. These remarks by supervisors clearly passed
the bounds of permissible conduct before an election in which the employer, by
law, is required to maintain neutrality. On the other hand, it is the opinion
of the Trial Examiner that either alone or in sum they do not form a pattern
of conduct so clearly defined as to warrant a conclusion of violation of the Act
and a recommendation that an election in a plant of more .than 1,200 employees
be set aside. Had it been established that the employer sought, by its wage
increase, to influence by this substantial benefit the voting desires of its em-
ployees, the isolated remarks of a few supervisors would have thereby been
colored with more serious significance. The facts show, however, that the
Respondent's counsel willingly^permitted the Union to take credit for the raise,
and that the Union publicly did so.
The Trial Examiner, will therefore recommend that the complaint be dis-
missed, and that the objections of the Union be overruled.
Upon the basis of the foregoing findings of fact and upon the entire record
in the'case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2
(6) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL,
is a labor organization within the meaning of Section 2 (5) of the Act.
3. The Respondent has not engaged in unfair labor, practices within the
meaning of the Act, as alleged in the complaint.
Recommendations
Upon the basis of the foregoing findings of fact, conclusions of law, and the
entire record in the case, the Trial Examiner recommends that the complaint
herein be dismissed in its entirety. It is also recommended that the objections
to election be overruled, and that the request to set aside the election of Sep-
tember 1950 be denied.
MONTANA DAKOTA UTILITIES Co. and INTERNATIONAL UNION OF
OPERATING ENGINEERS, LoCAL 913, AFL, PETITIONER . Cases Nos.
19-RC-710 and 19-RC-786. July 31, 1951
Decision and Order
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
95 NLRB-No. 99.