Beatrice Food Co.

National Labor Relations Board - Board Decisions

Jul 21, 1971

192 N.L.R.B. 868 (N.L.R.B. 1971)

$68 DECISIONS OF NATIONAL,LABQR RELATIONS BOARD
am, Division of Beatrice Food Co. and, Interna-
tional Union, Allied Industrial Workers of America,
AFL-CIO. Case 8-CA-5967
July, 211 1971
DECISION' AND -ORDER
BY t~IIAIR 'A'N MILLER AND MEMBERS
FANNING AND BROWN
,On February ,26, 1971 , Trial. Examiner Bernard J.
Seff issued his Decision in the
'
above-entitled
proceeding, finding that the Respondent had en-
gaged in,and was engaging , in certain -unfair , labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found , that the Respondent had.not engaged
in certain other unfair labor practices alleged in the
complaint and recommended dismissal of those
allegations . Thereafter, the General Counsel and the
Respondent filed exceptions to the Tr al Examiner's
Decision and supportingrbriefs.;
Pursuant ' to the provisions of Section 3(b) of the
National Labor Relations `'Act, as- mended, the
National ' Labor Relations ' Board has delegated its
powers" in . connection, " with this case to a three-
.member panel. 1 11
The ,Board has reviewed the rulings ^of the Trial
Examiner made at the hearing and finds ,that no
prejudicial error , was committed. The- rulings are
hereby affirmed .1 , The Board has considered- the,-
Trial Examiner's Decision,' the exceptions and briefs,
and the entire record- in the case, and hereby adopts
the findings; Conclusions, and recommendations' of
the Trial examiner, as modified below:
We agree with and. ;.adopt - the Trial Examiner's
fmdings,that Respondent "violated,Section 8(a)(1) by
coercively,, interrogating employees , and creating the
impression that their union , activities , were under
surveillance . However, for the reasons stated below,
we disagree with his further finding that remarks to
employees , made by Art Costello, Respondent's
president, on September 11, 1970 , included an
unlawful implication that employee selection of a
collective-bargaining representative would be futile
because in no event would Respondent sign a
contract.2
In finding these remarks to be violative of Section
8(a)(1), the Trial Examiner concluded that references
in the speech to unsuccessful negotiations at Respon-
dent's organized plant in California implied that
1 The Respondent's request for oral argument before the Board is
hereby denied as the record and briefs adequately present the issues and
positions of the parties.
IT For the reasons sot forth by the Trial Examiner , Member Brown would
employees at the .=Jackson Center. plant, here in-
volved, would be no more successful in obtaining a
contract than their counterparts ' 'in California.`This
may be so, but, in-the_circumstances, we, do"not,agree
that' any such " impl'ication'' removes, this,`statemenf
from theppr",otection of Section 8(c) of'the `Act. With
respect to the California.. negotiations,„uthe,speecli,m
unmistakable . language asserted that theiinability to
reach agreement was, the fault of the union;. and
hence the . message - conveyed was, merely, that
California employees,^had been, disadvantaged' be=
cause 'of the-union's' failure to bargain responsibly at
that location. Beyond that; the ,' speech failed to
include the_ slightest' implication that Respondent
would not enter, into any agreement. Not. did"tie}
speech imply that °Iespondentc would fail .lo bargain
in good faith, and,,indeed, to ,assume„so is to ignore
Respondent's own statement of its statutory duty to
bargain in good faith-with any representative which
its employees might select:
Consistent with Board„ precedent, Section 8(c)
protects an employer's` right -to criticize a labor
organization during a preelection campaign.3 , The
mere ; fac'i, that, it does; so in a, manner which ;assigns
responsibility for unsuccessful. negotiations to .a
union, does not ^convert. such-legitimate propaganda
into, an unfair labor practice simply because the
attack on the union is calculated to impress employ-
ees with the fact ' that' a similar` fatiPmay await them
should, they designate a union. Fors these reasons, we
find, contrary to the Trial Examiner, that ,the speech
was within the protection of Section 8(c), and
accordingly, we shall reverse the Trial-Examiner's
8(a)(1) finding based thereon.
ORDER
Pursuant to- Section 1.0(c)"of the "National, Labor
Rela tions Act, as . amended,, the ,, Nation' 1.a.'^'or
Relations Board adopts as its Order therecommend-
ed Order of the Trial Eaarnerf,a,s , modified- herein
and hereby orders that the Respondent, Airstream,
Division of Beatrice Food Co., Jackson Center, Ohio,
its officers, agents, -successors, and assigns, shall take
the action set forth in the Trial Examiner' s recom-
mended Order, as modified below:
1. Delete paragraph 1(b) of the Trial Examiner's
recommended Order, and renumber the remaining
paragraphs consecutively.
2. Substitute the attached notice for the Trial
Examiner's notice.
IT IS FURTHER ORDERED that the complaint herein
find president Costello's speech of September 11, 1970 , to be in violation of
Section 8(axl) of the Act.
3 Brewer & Brewer Materials Inc., 182 NLRB No. 119.
192 NLRB No. 34
AIRSTREAM DIVISION OF BEATRICE FOOD - $69
be, and it -,hereby '.°is, dismissed insofar as , it alleges
violations - of the Act- not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY` ORDER OF THE
NATIONAL LABOR' RELATIONS BOARD
An Agency of the ' United Slates Government
After` a- trial in which both sides had the, opportunity
to present - their evidence, the National -Labor
Relations,Board has found that we violated the law
anii has `order'ed us ,to post this notice and we-intend
to carry,outthe_order of^ the Board and abide, by the
folloTwhA:
ct.. gives all employees, these rights:
To, engage in self-organization
To form, join,,or_help unions
To bargain collectively through a representa-
tive oil ,their own choosing
To' act ,together- for collective bargaining or
other 'mutu , aid' or protection
-,To-.refrain from any and all these things.
WE WIrL.NOT,do,anything that interferes-with
theserrights. More specifically, ,
WE WILL NOT create the impression of engaging
in surveillance of ,the union activities of our
employees.
'WE WILL NOT interrogate you as to your union
membership, activities, or sympathies.
WE WILL NOT in any other manner interfere
with, `restrain, or coerce you in ' the exercise of
your rights guaranteed under Section 7 of the Act.
AIRSTREAM, DIVISION OF
BEATRICE -FOOD Co.
(Employer)
Dated, , By
(Representative) (Title)
-, This is an officialnotice and must not ' be defaced
by anyone.
This notice must remain posted for 60 consecutive
days ,from the{ date of posting and ' must not be,
altered , defaced, or covered by any other material.`
liquestions concerning this notice,' or compAny4
ance with its provisions, may ` be _ directed. to the
Board's Office,, 1695 . Federal Office Building, 1240
East ,Ninth-Street, Cleveland, Ohio 44199, Telephone
216-5223715. -
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
'BERNARD J . SErF, Trial Examiner : This proceeding was
heard' before me in_ Sidney, Ohio, on November 24 and
December 10, 1970.1 The_ original charge was filed on
August 3 and complaint issued on October 19. An
amended -complaint ^ was issued on, October 19 which
alleges that the Respondent violated Section 8(axl) and (3)
of the Act. The Respondent's answer , admits :certain facts,
denies knowledge that the Union is a labor organization,
and denies the commission of any unfair l'aborpractices 2
The questions litigated and presented for: decision are
whether the Respondent, in violation of Section; - 8(aX3),
discriminatorily discharged Marvin Whited because- of his
union membership and activities, and whether, by this and
other -conduct, it interfered -with, restrained, and coerced
employees - in the exercise of their right to organize in
violation of Section 8(a)(1) of the Act.
Upon the entire record, including consideration of briefs
filed by the General .Counsel and Respondent, and from
my observation of the demeanor of the witnesses,31 hereby
make the following findings:
FINDINGS OF -,FACT
1. RESPONDENT'S BUSINESS
The Respondent, a wholly owned subsidiary of Beatrice
Food-Company, is now and has been at=all times material
herein a corporation duly organized under, and existing by
virtue of the laws of , the State of Delaware. Respondent
and Beatrice Food Company's headquarters and principal
office are located in Chicago, Illinois. Respondent operates
two plants, one in Jackson Center, Ohio, and one at Los
Angeles, California, where it-is engaged in the manufacture
of travel` trailers . Annually, Respondent . receives at its
Jackson Center plant directly from -points . located outside
the' State of Ohio goods and materials valued in -excess of
$50,000. This proceeding concerns itself on ly with-the plant
located at Jackson Center, Ohio.
' Respondent -is now, and has been at all , times material
herein, an employer engaged, in commerce wF itltin the
meaning of Section,2(6)'and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now,, and has been at all , times, material
herein, a labor organization within the meaning of Section
2(5) of the Act.
II. THE - ALLEGED UNFAIR LABOR PRACTICES
A. Background
Two previous attempts have, been made to organize the
' All,dates refer to 1970 unless otherwise indicated.
2 At the hearing Respondent stipulated that the Union is a labor
organization 'within the meaning of the Act.
3, The -testimony of all witnesses has-been, carefully ' considered. In
evaluating the testimony of each-witness .his demeanor while onthe stand
was relied upon . In addition inconsistencies and conflicting evidence were
-given consideration, 'The absence ' of a statement^of resolution of a conflict
in specific testimony, or of an analysis of such testimony, does notmean
that this was not ddne . See Bisb'op and Malco, Inc., d/b3a Walkers 1^9
NLRB 1159, 1161. Further, to the extent that `a witness iscre4ited only in
part, it is done upon the evidentiary rule that it is not uncommon "to believe,some and not all of a witness !s testimony s. ' N.L.RB. V. Universal Camera
Corporatio,;,179 F.2d . 749,754 (C.A. 2).,
170 DECISION 'S OF NATIONAL LABOR RELATIONS BOARD
Ohio 'plant."The,Allied Industrial ' Workers lost an NLRB
election at-'Jackson , Center some time ago . The United
Auto Workers -made an unsuccessful attempt at organiza-
tion in 1969.,
In February the UAW won an election and was certified
to,,.represent Respondent's employees in its California
plant. .,Respondent's president, Art Costello, who apparent-
-1y. spends-most. of his time in, California , made a speech on
Septembers 11 to his . Ohio --employees which will be
,discussed , in £greater , detail, ` infra. .,'1'his speech .' dealt
principally with the fact that fruitless -bargaimng ,has-,been
in prograss in- California -with the,UAW from February to
-September : The;. General Counsel , contend's, inter alia,'Tthat
Costello implied that ,the .selection of the Union by the
employees-4n, Ohio would ' be as equally futile in Ohio as it
has been with=the UAW-in California.
It ° is : not, disputed . that Respondent's supervisory hier-
archy consists of the following persons:
Arthur Costello-President -
Dale T. Sherman-Personnel Manager
James B. Carman-Plant Superintendent
Francis L. Oakley-General Foreman
John Partington-Quality Control Manager
Carey'Kreglow -Foreman
Frank Judy Plant lyfanager
Alleged impression of -surveillance
On`July 22 the Union's second campaignyto organize the
Ohio plant "'began whenn'the `Union's regional'representa
tives, Frank''Sidari and Jack Draper, handbilled Respon-
dent's ' plant. Tfie distiibution of union literature began
about,4 past. as the `employees were leaving the plant at the
end' of the shift and ended'i'about 4:15 p.m. 'Two
unidentified female , empl`oyees' were offered' handbills
which' tfiey'refused to accept. They-returned to the `plant.
About 5minutes 'later",one-'of"the women came back,
requested a handbill from' Dr`aper, andthen returned to the
Company's office.. Apparently the General Counsel offered
this evidence expecting that V Would infer from it that the
two women,reported the-union ,distribution tosomeone in
authority in.theplant,who instructed one pf them to secure
a handbill. This may be so but it `is speculative and not
substantial enough upon which to base a finding.
Sidari_,and;Draper„were,,approached by employee Floyd
Statler who told them that he had invited some of the
workers to a union meeting to be held in the Feed Bag
restaurant which is located immediately adjacent to the
Company's- plant. `Eight''emen4 accompanied- Sidari and
Draper into the restaurant about 4:20 p.m. The group went
to one _ corner of the Feed- Bag where they o occupied two
booths with Sidari and Draper positioned,in,chairs,,at the,
end .of the booths.- Shortly after the union meeting began,
Plant Superintendent' James Carman- and ^ General Fore-
mail-;Francis Oakley`' entered the' restaurant' and 'sat at
s Jim` I)e Lohg, Ralph and, Robert Lump (brothers), Alfred Park, James
Miars, i:'loy4 Statler, Paul Dierringer, and Marvin whited.Jr
am persuaded that Cannad and OakIey,remamed only'a,brief time
because Robert Lump especially `'impressed me by,his demeanor. His
teat non was` given in a direct a$ forthright manger; aif 'Out Tear or
hesitation . His brother Ralph contradicted` him but"I credit'Robert's
counter stools situated approximately•20uor 30 , feet away
from, where the group was seated. From the testimony -it
appears that the company supervisors were not within
earshot of the men, took no - notes,, and did not engage in
any conversation with the union group.
There is a conflict, in, the testimony as to how long
Carman and Oakley remained -_in the, Feed Bag. They
testified they . remained about 2 or 3 minutes,, only long
enough to order and receive , cokes-from the proprietor, a
Mr. Gall, after which they promptly left the premises with
the drinks which , , wereserved to them ; in _, carryout
containers. 'The reason ^ for their presence at this ,time and
place was explained by Ca'r"n. He said Oakley'gaveh̀im
a lift to work ' that " morning, and was going to bring hint
home after the "day',s work'was.done, - It was a hot day and
they wanted to get soft drinks before ' theydrove back to
Indian Lake which is situated about 14 miles N'from the
plant. Carman was camping ins an Airstream ' trailer wand
Oakley, who lives past Indian Lake,'was providing Carman
with round trip transportation that day„ << M _
The union -version ^ of : this incident was that the
supervisors kept glancing over, at the
union group and
remained in the restaurant for fromw5 to 10 to 15 minutes.
Sidari, Ralph Lump, and Statler` gave 'the above varing
estimates of the length of time Carman and Oakley stayed
in the Feed Bag. Robert Lump corroborated the brevity of
the -supervisors' stay bystatg that they remainedlor from
3 to 4 minutes .' Both Carman and Oakley further -testified
vaguely, and unconvincingly, that, they ' did not pay
particular attention to the identity of the members of the
union group who were in the restaurant . I do not credit, this
part of their testimony which is beliedyby what3`took place
in the plant on.the-following day. , _ ,
2 Three- alleged instances of interrogation
The General Counsel 's bri ef states:',
On .June 23, Ralph Lump , one of the participants at the
meeting, was told- by several employees that another
employee, Y[Haut] , was,, spying on him. [Lump confront-
ed Haut with this information . He denied it.] Lump
also confronted Oakley with this information and
=,Oakley said he - did not , know , anything about it.
However, Oakley asked Lump what was going on
behind him in the booth that he was"' sitting in at' the
Feedbag. Lump replied , "discussing what theAJ_nion`
bad to,offer the employees.
Oakley, shrugged , his shoulders ,, said, and , walked,
away. Ralph Lump .then walked around the trailer and, ran
into Carman .` Carman said 'What is , the matter, I thought
you Were happy."-Lump replied that he was. then"Cam
said, "Just ' make sure before °'you< do anything"
-'Lump also told Carman- he had ' heard tliateven if,
,
me
Union was voted in a contract would`not be signed by the
Respondent. Carman said that was right.e
Carman's testimony was evasive and, unconvincing. I do
estimate as to the time the supervisors were present . Robert did not change
his story even under' the pressure exerted -by 'his brother Ralph.
6 The above quotations and the material which appears in the General
Counsel's, brief . were includeda in Ralph . Lump'sjestimony.,;Oakley's
testimony on the above was evasive .-For example , he admitted that he,may,
have ' asked 'if Lump was happy: that he had made such remarks in the past:"
AIRSTREAM DIVISION OF BEATRICE FOOD 871,
not credit that part relating to his not recognizing Sidari as
being a union representative. I find this to be incredible. I
also do not believe that he , was not sure he had a
conversation with Ralph_ Lump on the day following the
meeting in the restaurant ., Carman's recollection was clear
that he was in,,tthe Feed Bag with Oakley for 2 or 3 minutes.
His memory was quite precise as to the length of time in
minutes that he remained, in the restaurant. Ralph Lump
impressed ' me as having given a trathful`recapitulation of
his conversation with' Carman. I do not believe Lump
invented- hiss recital out of whole cloth. I credit his
testimony.
On the day after the union meeting, July 23, Floyd
Statler testified - he was interrogated in a private company
office' by Supervior John Partington. They were'alone.
Statler said that,Partington asked ' him ,"what was going
on?" The record 'shows Statler said:
He said .that well, he (Partington) had heard that I
was seen out there distributing this for "our old
buddy," Frank-Sidari.
I told „him I was nosey [sic I and wanted to know
what was going on, myself.... He then asked me what
my problems were, if I had anything that I should, come
to him, and we would talk them over and get them
straightened out without any outside help.
Statler gave the following version of another instance of
interrogation by barman which took-place on`September 2
in the water check department:
He went through the trailer with me during the water
check and while we was in there, he asked me what my
bitches were with Airstream. I told him Thad a few and
one ofthem was his foremen.
'I told him some of them-wasn't worth'a didily damn.
He asked me- if 'I though the Union would do the
plant any- good and " I said that I didn't know.
He' -said that if I° wanted to work- in a Union shop,
then I should go, to a Union shop and work and leave
his other 300 employees alone. _
It should, be noted that at another point in the record
there, appears a 'statement, made by Judy that "it was
common knowledge in- the plant that Statler was' the
spokesman for the Union."
Carman's vague testimony concerning his -conversation
with Statler-,;.while it differs as- to the exact words
exchanged, was corroborative in large part and I accept as
true the sense of the combined evidence in the, record. on
this, subject. Partington .denied that he even knew Sidari
and that, he never referred to anyone as "our old buddy
Sidari."
t '
also was vague, his demeanor was not
impressive while he-was on the stand, and I do not credit
his testimony.
3. The discharge of Marvin Whited-
Marvin Whited' was employed by the Respondent
principally as an end setter from' March 5,1969, until he
was discharged on July 29. Whited testified that he had
engaged in union activities on behalf of the UAW when
they attempted to organize the-plant- in _1969. In this,
connection he testified that his, then . foreman, James
Auskie (no longer employed; by, the Respondent), had
spoken to him a number of times, Most recently, just before.
the commencement of the current vacation period, July, 1,
1970.
Whited said that Sidari' gave him:,-60 or ,70 union
application cards; that he attempted to sign up certain of,
Respondent's employees; that this union - activity took'
place on nonworking ,time; and that, 'so far as -he "knew,,
none of- the Company's supervisors; observed'him' engaged
in this activity.'
The plant was closed for its annual vacation from July 1
to 14. During this period 'Respondent made its model'
change. ' The Company had `built 'a new plant which
commenced operations ontlie fatter date. Its assembly line'
was not yet in complete operation. The new plant-was-sot
up- to work only on a day-shift basis. Foreman `Carey
Kreglow had been on the night shift in 'the old plant. He
became Whited's new foreman "about-, 10 ' working days
before July 28.
Whited reported at the normal time on the morning of
July 28. He went to see Respondent's registered nurse, `
Mary Carr, about an injury he had received while working
at -the plant during his vacation. She made'an appointment
for him to, see the, company doctor at 1 p.m: -He-then"
returned to work as usual. Kreglow had asked him to help
the insulator installers work in a trailer until the'time calve
for him to' keep his appointment- with the-"doctor`." He
returned to the plant about 2:30 -p.m.,'reported',to°'the
nurse, and the insulating work resumed' in the' trailer•with
two other employees, David Klopfenstein and ' Elmer `
Payne. The three men ran out of insulation. They`waited in
the trailer for about 5 or 10 minutes for' additional
material. During this time they remained inside the trailer
"shooting the bull."' Kreglow passed, by -an -saxw, them
standing around not working. Whited did not see Kregloviw
at this time but' Klopfenstein testified that-,he ' noticed'
Kreglow pass by the trailer.
Kreglow came -to the trailer-about 3.30 pin. 'and
instructed the men to come to his workbench. The record is,,
not clear as to the order in which the men separately'
reported to Kreglow.' When Whited reached the work-
bench he saw an employee warning, -notice (which, is^^
included in the record) completely filled out with his name
on it. It contained a' notation that it was the third notice
and under the heading "Remarks" it states: ,
Carman was also evasive. He testified he saw Sidari sitting in the
restaurant . He admitted ' hi knew Sidari for a couple of years because "He
had called an election and he [Carman l had been present at the election:"'
In answer to Respondent's counsel , on direct examination,, he was asked,
Q. Did you know at that time that Mr. Sidari was associated with
the Union?
A. No.
Further Respondents counsel, Kerrigan, asked Carman on direct:'
Q. Did you we or recognize an employee by the name of Ralph
A. No.
Q. Calling your attention to the 23rd of July, the following day;,'
' (Continued)
x i
Lump that was in the restaurant that particularday?
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Was told to insulate to help - catch up . Was standing in
trailer talking, not working, leaning against inside shell.
Would not sign
The notice is signed by'C. Kreglow , Francis Oakley, and
James Carman:
`Whited refused to sign ' his reprimand because-he said it
was` not justified . Klopfenstein -testified as a witness for the
Company. He said he 'was the first of the three men to be
called to,-Kre, gloves workbench . He, signed his warning slip
because ' he said, "Well mine' was faced with standing,
around talking and not insulating and that was" ' exactly
what we , was doing." Similarly. Payne, who is no longer
employed by the" Respondent and was not produced as a
witness, also signed his warning slip.
The record 'contains copies of the Company's Plant rules.'
Any employee who receives three reprimands in any 12`-
month `period ' is subject ` to discipline . The first two
infractions result in written warnings . On the third offense
an employee "can be laid off_withoutpay ordischarged at,
the discretion "of_` the appropriate Division Manager
Included' as one, of the ' grounds for discipline is rule '9:
"Wasting time and/or-material:"
It is clear on_the record that while Whited denied he had
seen ` the above rules in writing he admitted he knew from
hearsay , and the grapevine that if he received a third
reprimand he could be discharged . The record further
contains a number of, statements made by Whited to Sidari
that,-he had a premonition that "before this thing is over"
he , expected to be fired. It is not, disputed that he received
warnings on ,August 6,1969 , May 28,,and July 28. The first
was for, excessive, absence, the second was for spoiling
material on: two occasions, and the : last ^ one has been
described;above. He signed the first two reprimands
without protests-but in his exit interview with Respondent's
Personnel Manager Dale Sherman, on July 29 , he belatedly
complained that the first warning was unjustified because
his absence , in, 1969 had been due to illness. In this
connection, Sherman told him that if he ,had felt aggrieved
in 1969 , he should have registered a complaint at that, time.
It is significant to point out at this juncture that when.
Kreglow, gave Whited -his warning notice on the afternoon
of July 28 , ,Whited. told-him this, slip was his third notice. It
should also be noted that , Kreglow testified credibly that at
the time he wrote up Whited's warning he did not know the
alleged, discriminatee ' had previously received two warn-
ings . Kreglow explained that when - he prepared the slip he
erased: what he had previously written and corrected the,
warning_to read "third notice" as the, result of Whited's
giving him this information.
-Whited; Klopfenstein, and-Payne were, given their
written reprimands about 3 :36 p.m. As noted above only
Whited had previously received two warnings . , Whited
went home about 4 p.m. at the end of his shift . When he
came to work early the next morning , July 29, Kreglow
instructed him to go , to the personnel office. Upon his
arrival he found it -was not yet open.-He waited outside
until about 8:30'a:m. when he was called into Sherman's
office . Kreglow , and Sherman were -present together.
Sherman asked Whited to tell his side of the story. Kreglow
then gave his version of what had occurred . Whited said all
he could remember about this conversation was that
Kreglow , , stated hea could not `back- down-he 'did' not do
things , that way. -
Sherman testified that 'he was disappointed in Whited
because 'during the transition from^the old to4he new plant
Whited' had installed some timeclocks -for `him performed-
R)
some other duties, and had done 'all this-worksatisfactori-
ly. Apparently Sherman 'thought well of Whited. I asked
Sherman if in the setting up,of ,a new plant it aright, take
some trine before the flow of materials became rou mixed,,
thus causing delays like the situation of the three men who
had to wait for the arrival of insulation material . Sherman;
replied that this was possible at , the outset of operations. I
then asked if, under tie circumstances , Sherman - did,not^
feel that - Whited's-discharge had been too-harsh a;penalty.-
Hiis answer was, "No, sir .," I also ,asked if an employee-who,
has received three written reprimands xwas automatically
discharged. Sherman replied,, "Yes, providing ; they , stand
after reviewing." 1,
Sherman, Kreglow, Oakley, and Caiman reviewed the
facts ` concerning Whited's discharge. v Whited testified
without contradiction that when 'Sherman came°back'after
conferring *ith Kreglow , Oakley,, and Carman he said `'he
was, sorry but they ' wouldn't let hinichange his determina-
tion." The "they" referred to by 'Sher 'man wereCarman,
Oakley,- and Kregl'ow. The interview 'witli Sherman"'ended
when Sherman suggested that Whited 'keep` Iii ' touch with
Respondent. Whited said he did contact the ,plint about a
week later but was , told there was no . work; or him.
On direct examination Sherman testified ,and th re was
received in ' evidence company records to- ,prove ,that
approximately 10 former employees had been term inated
after each of them received threes warning notices of
derelictions in the performance of -their duties.-
Klopfenstein corroborated the testimony , of Whited that
the three men in the trailer stood around ,"shooting'.-the
bull" for about 5 minutes , awaiting additional-insulation;
that Kreglow did not explain to the employees, under his
direction that they , were to, keep busy when their, regular,
jobs were caught up; in fact .Klopfensteiwsaid^the first time
he could recall hearing such instructions was,after Whited
was discharged .
Whited testified that when he was in Sherman 's office on
July,29 Sherman asked 'Kreglow if' he knew whether other
foremen 'permnitted their men" to stand around when their"
regular work was done ' and `Kreglow replied that he knew
this happened but he did . not `agree ' with them.'
In the course' of 'his testimony Whited said Kreb
gRlow`
never reprimanded him; Kreglow did not wain any of the,
three men in the trailer not to stand around unoccupied
but to keep busy; Kreglow had only been his foreman for
approximately' 10 days; prior to ' Kreglow,, he had worked
under Auskie ; during this period when-the employees, were
caught 'up with their work there were times ` when they
would wait in 'the' trailers ' holding bull` sessions, until, the
time came to go home ; while working under Foreman Don
Wallace the only thing Wallace ever said was that he
(Wallace) did not like it if too many men were talking in a
A. That I can't recall. Q. Now, is it possible, Mr. Carman, that you had a conversation
Q. Do you know Ralph Lump? with Mr. Lump on the 23rd?
A. Yes. A. I could have.
AIRSTREAM DIVISION OF BEATRICE FOOD $73
group; sometimes when work was completed Wallace
matched quarters with the men.7
The crucial. ,question in the discharge of Whited is
whether the Respondent knew of his union activities. The
facts, concerning this-, issue are not clear on the record. The
General -Counsel asked- Whited- on direct examination
"whether he had- a certain pattern every day-did you
continue this-pattern?" Whited replied; "Yes the only thing
is, I was'-especially careful to do it on my own time." From
the above-quoted testimony the General Counsel states in
his brief that the record is clear that each morning prior to
his 'discharge Whited - arrived at work early to pass - out
union cards. It is also stated that the record is clear that
Whited was one of, the most, if not the most, active
organizer in the`plant before his discharge.
Whited also testified that }on a number of occasions, the
most recent having taken'-place before the July 1 vacation,
his' former foremaAuskie, told' him that if he did not
want to work in a nonunion shop he 'should get a job in a
union plant. Whited further said that Auskie's comment
related to the time in late 1969 when he was proselytising
for the UAW. -
Sidari, the Union's organizer, testified that Whited was
one of` the keymen organizing the plant; he was given 40
union authorization cards to distribute at-the first union
meeting which took place in the Feed Bag, restaurant.
Whited said 4he was given 70 cards and'turned in 35-40 to
Sidari. ' On cross-examination y Respondent questioned
Whited about this discrepancy in his testimony. Whited
replied"that he had a'few, cards left. He went on to say that
although no company supervisor had-spoken to him about
unionization since the instant campaign began "everytime
he looked up someone was 'standing- and watching me,
Whiited said he first learned, there was going to be a
union meeting at the close of work on July 22 from talk
among some of the men. He then went to employee Statler
who told him the meeting would take-place at the end of
the shift °at the Feed sag restaurant. If this testimony is
accepted as true it seems strange that one of the most
active,, key union inen in I the plant apparently knew
nothing about the-first union meeting and had to seek out
Statler, to find out when and where the initial organizing
meeting would take place.
Respondent disclaimed any knowledge of Whited's
union activities. The facts enumerated, ,supra, create a
suspicion that Whited's union activities were known to
Respondent.
The job Whited was doing was explained by Kreglow.
There is a.-fibreglass end liner which is affixed to the back
and a vacuum plastic liner which is attached to the front of
a trailer. An end setter screws some parts on the end liner
and an opening has to be cut in the end liner for the
control panel. There are two holes-that must be cut for the
bolts which are attached beneath the trailer. -
Kreglow; testified that at one point during the 14 years of
his employment with the Respondent he had been a
general foreman. When labor was cut back he was reduced
7 For the most part both Whited and Klopfenstein impressed me by their
demeanor on the witness stand . They spoke with apparent candor and
frankness. I credit much of the above testimony because it impressed me as
being reasonable and it was not controverted . Further note Klopfenstein
to the job of foreman on the night shift. Respondent
started operating the new factory about-July 14, at the end
of the annual vacation, and at this time the night shift-was
eliminated. Kreglow was transferred to the day shift; he
had about 23 employees under his supervision; some of the
men were new to him; Whited was among the new, men.
Kreglow' said the-employees were told` they should not
sweep up their immediate area and be ready to go' home
until 3- minutes before 4 p.m., which is quitting time. If the
men ran out of work before.this time, Kreglow expected
them to keep the area clean. When he first saw the- three
men in the trailer it was about 2:30 p ,.m. They ` were
standing around engaged in conversation. Kreglow stated
he said nothing to them because he noticed there was no
insulation for them to work' on. According 'to Kreglow,
when he returned about 10 minutes later they were still not
working and he noticed that no insulation had been
brought to the, trailer to be installed. Kreglow explained
that since the men were not ,busy, they should have 'gone
outside the trailer and swept up around it. At-this point
Kreglow made out warning__ slips for_ each employee,
individually interviewed them, and called to report the
incident to Oakley. Oakley was out of the plant. Kreglow
explained the situation to Carman who said Oakleywould
be in touch with Kreglow when he returned. About 3:50
p.m. Oakley called, ,read what Kreglow had written on
each of the warnings , and signed them.
Kreglow testified that at, the time he filled out the slips he
did not know if any of the men had previously received
other warnings. This seems to be borne out by the fact that
Whited's slip contains an erasure, at the place where the
number of the notice is to, be recorded. Kreglow explained
that he marked the slip "first warning" because- he-knew
that he had not issued such a notice to Whited who-was a
new man on his day-shift crew. Whited had only worked
under Kreglow for about 10 days. Kreglow a credibly
testified that he did not know Whited had received other
warnings . Kreglow said he erased his notation "first
notice" when Whited told him the notice of July 28 was his
third warning. Whited did not deny Kreglow's testimony
on this point. He merely said he might havegiven Kreglow
this information at the time Kreglow spoke to him alone
during the interviews which took place separately, with
each of the three men involved in the, incident. In the
context of the events as they were unfolded during the
hearing I regard Whited's equivocation as an admission
and Kreglow's testimony, as both reasonable and.accurate.
This issue is not free from, doubt. It might be suspected
that, Kreglow was told by Oakley andCarman,to get,rid of
Whited and thus rid the Respondent of an employee whom
the General Counsel described in his brief as one, ,of the
principal union activists in .the plant. It could be argued
that the offense of loafing_ had -been condoned by two of
Whited's previous foremen, Auskie and Wallace. - These
company supervisors apparently disregarded periods of
idleness at times when Whited worked under them. The
timing of the warnings also raises some doubt in my mind.
was called as a witness by the Respondent and despite the "bias he might
have shown in favor of the Company he seemed to be "telling it like it was:'
The Respondent did not attempt to refute the testimony concerning Auskie
and Wallace and did not call them as witnesses.
874 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
I am 'aware of the fact that Whited had received written
warnings on August 6,.1969, May 22, and July,28. It was
Respondent's admitted practice to cancel warnings8 and
-accord its employees a-,clean slate if, they, did not receive
three warnings in,12-calendar months . Absent, one- addi-
tionai ,w,arning, by August,6, 1970, Whited would-have had
-a-. clear,,,record for an additional 12-month period.
The other , side, of 'the coin , has, a _ greater ring- , of
authenticity. t was established on,the' record that Respon-
dent„ follows,, a consistent practice of automatically dis-
,charging an employee ,^_,,,ho receives three disciplinary
-warning , notices in any 12-month period. The reasonz _.R
-advanced by Respondentfor firing Whited is that he had
f8two strikes on him beore he received the July 2 warning.
Upon. receiving,. bis third;,, , warning he was out.
Balancing probabilities `I am satisfied from Kreglow's
testimony on this point, which I- credit, that the` first time
ie learned about Whited'ss two previous warnings was
when ' Whited told him about this-fact. Whited was fired for
loitering and 'not working for 5 or ` 10 minutes .' This was his
third offense . The penalty seems unduly harsh . However it
is well-settled law that an employer is .free to discharge'an
employee for any reason whatever, or for no reason at all,
so, -long as- 'the termination ' is not motivated by an
empl'oyee's participation is concerted activities, or by his
membership in or`"espousal - of a labor °organization.s The
acid test iss whether -the assigned reason is the moving cause
behind the discharge. -
In'my opinion the facts -in the record do not support the
conclusion that -Whited was discharged because` of his
activities'on -behalf of the charging Union . Therefore the
allegation in the complaint that Whited was discriminatori-
ly'>discharged should--be dismissed. In making - the,above
finding = the burden ' of proof 'is on the` General Counsel to
prove his '-case by a preponderance ^ of the substantial
evidence on the record as a whole . He,has not-sustained his
have made at ^ both its plants ,without the intervention of
labor unions , The impact upon ,the employees gathered
together as a captive audience in 'the Jackson ,City, Ohio,
plant to listen to comments made by Costello , who came to
address them from California , must- have been- substantial.
In large part the speech dealt with a recital ofe Costello's
dealings with the UAW in, Los b Angeles in the course, of
Respondent's collective-bargaining sessions ,from the date
of this union's certification, February 1970,,up,to Septemr
ber 11.
After the UAW was certified, February 27, at the union's
request, Costello provided it,"in black'and-rwhite' with
Airstream's wage and benefit program . Despite written and
oral requests of. the UAW that ,it provide the Company
with the average wage and benefit programs whichmprevail
in, the trailer, industry Costello said , the union has utterly
failed to 'turn any of this information over to him. In the
many meetings, Costello. has'ha d-withthe UAW the only
thing that is'down, on,-paper, is language that "if, you work
the day before and, the day after a holiday you are eli gible
for holiday, pay."
One of Costello's employees, Mike Gomez, ca.me;to tell
him.that , he had been chiefly responsible for bringing the
union into the plant . Gomez -said he
}
vas sorry for ;,lie role
he had played m helping the union get in and be asked
Costello what he,_could do to get rid of the UAW. Costello
arranged for a meeting at which Airstream's attorney
explained - the legal procedure required " to eliminate' the
union.-
After many,months of unsuccessful bargaining the UAW
scheduled a meeting at which ` the `employees would' have
the opportunity to vote in a secret ballot election as' to
whether they'-would ' go out -on strike- or whether they
wanted a contract. Costello' said he had-, some advice, for
Gomez. He told him 'to ask the union` to give the employees
"another choice which-was neither." `
burden of proof.
4. -President Art Costello's speech of September
11, 1970
'Respondent's president, Art Costello, gave a talk to his
employees on September 1l which started at approximate-
ly noonand'lasted until about 2 p.m.
The plant superintendent's secretary, Marcia Heliinger,
testifies, that 'she was present throughout this speech and
took copious stenographic `notes. 'The notes were tran-
scribed" and are included in the record as Respondent's
Exhibit' 1-`The', General Counsel examined Helminger
under volt dire in an ,attempt to'demonstrate'that she was
neither fast enough nor sufficiently skilled 'to have made an
accurate transcription of Costello's remarks. 'In his brief
the-General` Counsel disparaged, Helminger's version of the
talk and placed his reliance instead on the testimony of
certain of his' witnesses!- I am, satisfied thatthe Company's
exhibit is both a fair representation and--a' reasonably
accurate'record'of Costello'sremarks.
The, speech is'-paternalistic do tone and, among other
things, recites the progress the Company and its employees
i See N.L.R.B. v. Great Eastern-Color Lithographic Corporation, 309 F.2d
352, 355 (C.A. 2); KL:R.B. v. Jaiieestown Sterling Corp., 211 F.2d 725, 726
Costello then said:'
Understand me real clear. If we made a wage change
in'Ohio, then the minute we do somebody is going to
scream discrimination. For Example':' Raise wages 20
cents an hour it would n_ o soonerappear than the union
guys would run to the NLRB, and , say it 'was
discriminating. I want you'to know we tried to think of
a dozen ways to solve this problem., We checked
everything that we could think of:
1. Justify Facts
2. Four-nine hour days. You know what will
happen to you, the union will say you are getting
two hours pay.
There is a way, but we cannot do it now. But it will be
done, you will not be hurt. I cannot tell you when, but I
will guarantee-it. I don't think I have''let you down,
when I said I guarantee it, I do, I think I have a pretty
good record. I go so far to say it will be don[e] and you
will not be hurt. -
I don't -see -why you would be. interested, in a
repetition of this in Ohio. You have not ' even `seen the
end result.
You can select two (2) people you want and send them
(C.A. 2).
AIRSTREAM DIVISION OF BEATRICE FOOD 875
to California . The union said ,at the bargaining table we
did not make you any promises . You can pick ten men
put them on a ballot, we count the vote and the two
selected will be the guys _to,go to-Los Angeles . I would
want these people to be open-minded to represent
everything fairly ,and. squarely . If you want that, this is
an offer.
Respondent 's ^ ,Exhibit 3 concludes with the following:
QUESTIONS 'ASKED BY EMPLOYEES AT THE
CLOSE, OF THE MEETING.
George Wray-If,the raise does-come .through , how far
back will it go?:
-,,,Art answering-this is what I did say. You are not going
to suffer.
Clarence Evans-what can the men in the plant do to
help,speed up the process.
Art answeringrit has to happen in Los Angeles. I
cannot speed up the election date . There is going to be
one more meeting this month , I am encouraging every
employee in Los Angeles to attend , when,.they go this
will speed up the . process.
There is a possibility that a petition is being-drawn up
right now. It won't do a bit of good right now, you
cannot bring it before the NLRB before February 27.
We cannot encourage a petition , the employees have to
do this. We cannot give them stationery, pencils or
anything.
ive us- a union , shop or weThe union says , either you g - -
will strike. I said baby there are three choices, not' two.
The words in the speech are garbled but intertwined in the
jumbled language runs a consistent thread of hostility to
unionization. More specifically Costello said he would not
make an economic offer, to the . UAW until the union
provided him with information- demonstrating that his
wages and fringe ' benefits were inferior to that secured by
unions in plants operated by Airstream's competitors.
After ` meetings , meetings and meetings" nothing of
importance had been agreed upon . According to Costello
the reason why negotiations in California never got off the
ground is due solely to the fault of the UAW. Costello then
said:
I don't see why you would be interested in a
repetition of this in Ohio. You have not even seen the
end result.
Plant Manager Frank Judy testified that sometime after
Costello 'made' his speech Judy received 'a list of 10 people
who were interested in making the trip . Judy went" around
the plant- and said in, almost every department he was told
vhy don't you talk, to Stotler, he is the spokes man for the
Union." Stotler had testified that he was . . I Judy's
office and called a union agitator by Judy. Judy explained
that he called Stotler to his office to speak to him about the
trip. Judy went ,on to say that when Stotler came to his
office he_ told him his name' had been mentioned 'as the
spokesman for` the people who would like to see a union.
Statler allegedly replied, "Well, that is calling me an
agitator or something like that." Judy went on-to say, the
word agitator , was - Statler's comment not his. Ultimately
Statleraand one other employee were selected and made the
trip to Respondent's Los Angeles plant.
9 181 NLRB No. 14.
Much of what Costello said , represents- free speech
protected by Section 8(c) of the Act. However it can ^ be
seen from those parts quoted, supra, and what appears
elsewhere in the record, that employees Wray and Robert
Lump understood that the Jackson City,employees_would
receive a retroactive wage increase "-when , the union
problem in California was resolved. By`r`esolved 'Costello'
meant that a year, after the UAW. was certified a new
election conducted oy the NLRB fiopefull_ y'would result'in,
the ouster-'of the' union: This ' is the -blear import of
Costello's.words. Statler and the Lumps `testified that `they,
understood Respondent's remarks to mean that even if the
Union did ultimately win an election th e bar`gaining=which,
would thereafter' ensue would not result in a contract °in
Ohio any more than it had_d in,California.'In a word such"
bargaining as might take place' would 1 be 'an' exercise 'in'
futility. I find that Respondent, inthe speech = delivered by
its president, implied that the selection' ' of a bargaining;
agent by its employees would be° a futile act because the
Respondent would not sign a contract with the-Union even
if it were designated as the collective-bargaining represent-
ative of its employees. This aspect of the speech of,
September I I is violative of Section- 8(a)(1) of the Act.
B. Concluded Findings
Surveillance: The presence of Carman and-Oakley in the
Feed Bag restaurant, a public 'place, while the Charging
Union was holding its first meeting may have been -pure
happenstance. Their testimony that it was a hot,day in
July; that they stopped in the Feed Bag for only :a few
minutes to get,cokes while they were about to ride home
together to their respective' homes appears to be reasona-
ble. Further their testimony seems to negate the General
Counsel's contention that, they were• ,in- the Feed Bag to
observe a scheduled union meeting: There is no convincing
proof' in the record that the union meeting was scheduled
in advance and that Carman and Oakley knew it was due
to take place.
Respondent contends in its -brief that there is, no;
evidence that -the Company was even aware- of the
handbilling which took place on July 22. The case of
Wilson Furniture Company 9 is cited-,for ,the, proposition
that to constitute a violation an employer must be heldto
have intended the consequences; which-could reasonably be
anticipated from its. actions in going to and remaining
the restaurant where, it knew a union meeting was to be,
held. But the cited case goes on to say that "the, Leonards
further took overt action ,designed to accentuate this
result." In the case at bar, Respondent's Supervisors
Carman, Oakley, and Partington interrogated Lump and
Statler, on the verynext day after the union meeting,-as to
what went on in the restaurant .booths in which the"-men
were sitting. I credited the testimony of Lump and. Statler'
and discredited the denials of interrogation testified to by
Respondent's supervisors.
The visit to the Feed Bag must be' evaluated in the
context of the totality of the evidence in the record.-In this,
posture of the incident I am persuaded` by the credited
evidence that by their overt acts Respondent's supervisor's.
876 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
created the impression of surveillance. Such' circumstances
add'up to a violation of Section8(axl) of the Actand-I so
find.
' 'Interrogation: I have credited' the testimony ° of Statler
and the Lumrps that they were interrogated by Carman,
Oakley, and Partington as to what occurred in the Feed
Bag's'boofhs on' ruly 22: `Further, questions by Respon-
deist's supervisors, as to whether Statler thought the Union
would do any good' in'' the plant; the ` -suggestion by
Partington that-"if Statler wanted to=work in a unionshop,
then he should go to a union shop,and work and leave his
(partington'i) other '300 employees alone' ere` stripped of
their seeming innocuousness and take on an antiunion
coloratign. By such -comments company supervisors might
well indicate to the employees that, unless, union activities
stop the persons so', engaged,would become personna non
grata ,By implication such remarks contain a subtle threat.
I draw this inference by-,the circumstances under which
these comments were made. Note.that Supervisor Judy
admitted it was common knowledge in the plant that
Statler;,gvas known as the spokesman for ,the employees
who wanted a union,, Further the statements which were,
made were credited by me and took place the next day
after the first union meeting took place. It is not denied
that the opening gun in the Union's campaign to organize
the plant was, triggered by handbilling the., plant. It, - is
inconceivable that .of the 300, employees,then working for
Respondent, many were not aware of the commencement
of, the organizational efforts of the Union. It is axiomatic,
that the "grapevine", (which is attested to„ by Judy's
statement that Statler's union activities were a matter of
common knowledge in the plant), pumps all kinds of
information to employees unendingly.
I do, not credit Partington's denial that he did not recall
such -a meeting or conversation having taken place.
Respondent in -,its, brief points out that it is unlikely
Partington ever made the statements, ascribed to him
because he had formerly been an hourly employee of
Respondent; he had been involved in an attempt, some
years before to organize Airstream and in this capacity "he
became aware of the danger in questioning employees
relative to Union 'activities." I find no merit -to this
argument. Respondent places strong reliance on the fact
that no overt promises of benefit or threats of reprisal were
made by Respondent." In these days : direct ,evidence is
rarely available' because employers have'become sophisti-
cated in engaging in conduct violative ' of the 'Act 10
I find -that -certain company 'supervisors 'did engage in
interrogation -violative of Section 8(a)(l) _ of _ the Act.
Discharge of Marvin Whited: This- is a' close' case. As
detailed, supra, `Sec. III, 3, there is' evidence creating a
strong suspicion that Whited was discharged forhis}`union'
activities.
His' 'testimony indicates that he distributed union',
applications for membership in the morning, before work
began. Such activities always took place on his own time.
This, testimony is uncorroborated and, consists solely "of
Whited's self-serving declarations. It should be 'noted'
10 See Trial Examiner James Constantine 's decision in the case of Greco
Tile & Marble Company, Case 14-CA-5768, citing N.LR.B, v. Melrose
Whited -said, that so far'as'he knew no company supervisor
observed him engaged in this activity. -, - - ,
Respondent put in evidence,' without objection from the
General Counsel, official company records" demonstrating
that its rules clearly provide that any `employee what has
received three written warning notices, withifi`442-month
period may be laid off and/or discharged at the-'discretion
of the Respondent., Personnel Directo'r0Shermanestified
that any- employee who receives '`three, suci-Ì‚ notices is
automatically discharged' "`providing, they' -stand after
reviewing." Whited denied that he lead -seen" the official
records but he admitted that he was aware of -,$ the three
warning admonition br rumor, gossip, "-and , hearsay.
The General Counsel argued that the records adverted to
above `by explicit 'wording" ' did not -require `automatic
discharge after three written warnings, 'but =stated, that
discharge is at the discretion of the Company. Respondent
countered this, contention by ' placing-,in ._evidence,' again
without-objection, the records of 10 employees who were
discharged because they had each' been- given three written
warning notices. There is no doubt from this undisputed
evidence that it is established practice `for Respondent to
discharge employees who ` have , received three written
warnings of derelictions in duty.
In Whited's case the third warning, 'which'precipitated
his discharge, was for' "loafing" 5 or,-10 minutes -when
admittedly his group of three employees ran out of the
insulation they were installinsg in the trailer in which they
were working. They 'were not warned by Kreglow- not to
stand around "shooting the bull" and, in fact, the record
shows, that other emplo'yee's''(mcluding Whited) had' not
been disciplined for such reasons iii the past In fact two of
Whited's previous foremen; Auskie `and' Wallace, were lax
in enforcing such- discipline. - The extreme penalty of
discharge `seems to be an `excessive penalty considering the
nature-of the offense: But note in`this"connection that"it is it
well-established- princpal'of law 'that it is not the NLRB's
function to substitute its judgment for that of an employer
in respect' to' either the selection or retention of employees:
An employer can lawfully fire employees for any reason o'r
no reason but for the single exception that he may not do
so if' the termination is " motivated- ` by , "antiunion
considerationii '
The detailed facts surrounding Whited'sdischarge are
set forth, supra,; in this decision and need; not' be repeated
here. in order,; to establish that Whited's discharge was
motivated by, Respondent's , purpose to encourage or
discourage his membership in any labororganization" the
burden of proving company knowledge of .his. union
membership or union, espousal was - on^" the- General
Counsel:, I have fou nd' that the evidence, in the record does
not preponderate in favor of this , essential` fact. The
credible evidence, does' not show thatI^rlow°knew°or was
aware, of the interest o-r lack of interest in unionization of
any othe three men who were inthe trailer at the time all
three received `warning ,notices. Since''all three mere were
similarly 'disciplinedi by ICreglow's ' issuance- of 'w'arning
notices- to each of "them for the same offense at the same
time, Respondent did not manifest any _, disparity of
Processing Corp., 351 F.2d 693,698 (C.A. 8).
11 NLRB. v. McGahey, 233 F.2d 406,413 (C.A. 5).
AIRSTREAM DIVISION OF BEATRICE FOOD $77
treatment. Whited -testified that no company supervisor
ever discussed - unions with him or threatened' him in any
way-. In the--,context of the totality;ofthe facts of record
there does, not seem,to be a reasonable basis for inferring
an illegal motive on the part of Airstream. As previously
indicated I_have found that Whited, was not discriminatori-
discharged and I, therefore ,,recommend that the
allegation in the and complaint, that the Company
violated Section $(a)(3) be dismissed.
^Costello's speech of September `11: -Respondent made a
lengthy, rambling Speech-to his Ohio- employees that took
approximately 2+hours.to deliver. Most of his remarks dealt
with. ,his ; description- of the futile efforts of the UAW to
reach agreement with him at hisrCaljfornia operation. He
also said that at the end of the first year of the UAW's
certification. an NLRB election would be called to rid the
plant ,of the, union. In the course of his remarks, which in
sum were colored by Costello's antipathy for unions in the
trailer industry, he said; "I don't see why you should be
interested in 'a repetition of this inn Ohio. You have not even
seen the end result (Emphasis- supplied.) The conclusion
is inescapable that the employees could expect the same
result in, Ohio that had occurred in California. In other
words' if the employees at Jackson City were to elect the
Charging Union to represent them in collective bargaining
with, Respondent, they would,be no-more successful in
negotiating a contract in Ohio than were the employees in
California.: Such statements made by Respondent's presi-
dent- constitute interference, and restraint and are violative
of Section 8(a.Xi).
'CONCLUSIONS OF LAW
1. The Respondent is an - employer engaged in com-
merce within the meaning of. Section ,2(2), (6), and (7)aof
the Act.
-'2: c The Union is a labor organization ' with'in the
meaning of Section 2(5) of the Act.'
3. By ,the acts and conduct herein found violative of the
Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act, w:hichh unfair labor practices affect commerce
within . the meaning, f ,Section .2(6)_ and (7) of the Act.
4. Respondent , hasp ;not,=violated Section 8(a)(3) of the
Act.
THE REMEDY
It having been found that the Respondent has engaged in
unfair labor practices in violation of-Section 8(a)(l) of the
i2 In the"vent no` exceptions are filed, as provided by, Section 16246 of
the Rules and -Regulations of ^ the National Labor Relations Board, the
findings, conclusions,, and recommended Order herein shall, as provided in
Section 102.48 of the Rules ,and Regulations, be adopted by the Board and
becami its finings , 6 =conclusions,- and order, and all objections ' thereto shall
be-deemedwaived for alt-purposes.
13 In the event that the Board''s Order is, enforced by a Judgment of a
United States `Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall
Act, it will be recommended that Respondent two and
desist therefrom and' take certain ' affirmative action
designed to effectuate the' policies , of - the Act.
In order to make effective for the employees of the
Respondent the guarantee of 'rights contained in Section 7
of the Act, it will be recommended that -the Respondent
cease and desist from in any manner infringing upon the
rights guaranteed in that section.
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the ' following recommended:12
ORDER
Respondent, Airstream, Division of Beatrice Food
Company, Jackson Center, Ohio, its officers, agents,
successors , and assigns, shall:
1. Cease and desist-from:
(a) Creating - the impression that Respondent was
engaged in surveillance of the union activities of its
employees:
(b) Making speeches implying that the selection of a
collective-bargaining- agent at the Jackson Center plant
would be a futile act because the Respondent would not
sign a contract with the,Union even if it were ;designated as
the collective-bargaining representative of its employees.
(c) Interrogating its employees at its Jackson Center
plant concerning its employees union membership, `activi-
ties, or sympathies. ;
(d) In any other manner interfering with, restraiiiing,'ot
coercing employees in the exercise of their rights guaran-
teed under Section 7 of the Act. '
2. Take the following $ affirmative 'action which it is
found will effectuate the purposes- h of the , Act:
(a) Post at its place of business at the Jackson Center,
Ohio, plant, copies of the, attached notice _ marked
"Appendix." 13 Copies of said notice, on forms,provided, by
the Regional Director for,-Region 8, after being duly signed
by Respondent's authorized representative, shad be posted
by'it immediately upon receipt thereof, and be maintained
by' it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable' steps shall be,tea by
Irespdndemt to insure that said' notices are not altered,
defaced, or covered by any-other material.
(b) Notify the Regional Director for Region 8, in writing,
within 20 days from the. receipt ofthisDecision, what steps
have been taken to comply,herewith.14.
be changed to read "POSTED PURSUANT TO A JUDGMENT OF 'THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER,
OF THE NATIONAL LABORRELATIONSBOARD."
14 In the event that this recommended Order is , adopted,by the Board
after' exceptions have been filed, this provision shall be Ynadified to read':,
"Notify .the Regional Director for Region 8 , imwriting,within 20 days from
the,date of this Order, what steps-the Respondent has taken to comply
herewith."