Murfreesboro Pure Milk Co.

National Labor Relations Board - Board Decisions

Jun 15, 1960

127 N.L.R.B. 1101 (N.L.R.B. 1960)

MURFREESBORO PURE MILK CO. 1101
groups shall remain unrepresented regardless of the vote in voting
group (2). The Regional Director is instructed to issue a certifica-
tion or certifications as decided by the results of the elections.'
[Text of Direction of Elections omitted from publication.]
MEMBER FANNING, dissenting in part and concurring in part:
I agree with the majority decision as to the unit determination
found. However, I disagree with their failure to provide for the
pooling of the ballots in the event that the presently represented
employees reject the Intervenor. Their vote in such circumstances
makes the overall unit appropriate, and the Petitioner would be en-
titled to certification if it obtains a majority of all the votes in that
unit.
As I pointed out in Waikiki Biltmore, Inc., 127 NLRB 82, the
only way to insure that the election in such overall appropriate unit
will be determined by the majority vote is to provide for the pooling
of the votes, in the event the currently represented employees (in
voting group 1) vote against the Intervenor.
I therefore dissent from the majority's failure to provide for
pooling.
4 Waiktkl Btiltmore , Inc., 127 NLRB 82.
Herbert D . Young, d/li/a Murfreesboro Pure Milk Co. and
Teamsters, Chauffeurs , Helpers & Taxicab Drivers Local
Union No. 327, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of Amer-
ica, Ind . and Old Hickory Local No. 150, Retail, Wholesale
and Department Store Union , AFL-CIO, Party to the Con-
tract. Case No. 26-CA-882 (formerly 10-CA-4142). June 15,
1960
DECISION AND ORDER
On November 25, 1959, Trial Examiner Thomas N. Kessel issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members Rodgers,
Jenkins, and Fanning].
127 NLRB No. 140.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. The Board has considered the Interme-
diate Report, Respondent's exceptions, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
Like the Trial Examiner, we do not base our findings of unlawful
domination and assistance on evidence of events occurring prior to
December 9, 1958, the 6-month cutoff date prescribed in Section 10(b)
of the Act.2 As described more fully in the Intermediate Report,
RWDSU's negotiating committee, half of whose members had been
appointed by Respondent's president, Young, continued to negotiate
with Young after December 9, 1958, the 10(b) cutoff date. When
Young heard rumors of a union other than RWDSU entering his
plant, a new contract was hastily pushed through the committee on
May 27, 1959, despite the absence and later protest of one of the
committee members designated by the employees. On various dates,
likewise within the permissible period under 10(b), Young threat-
ened reprisals against employees who voiced an interest in a union
other than RWDSU, and on June 4, 1959, Young told employees at
a meeting "he could not afford to go along with another union."
There is, we find, ample evidence within the 6-month period to support
our findings of domination and assistance, and Respondent's actions
prior to that period serve merely to "shed light" on, and reveal the
flagrance of, the Respondent's conduct subsequent to the barred
period.3 Accordingly, we adopt the Trial Examiner's findings as to
assistance and domination , and shall issue the appropriate order
consistent with the Board's normal practice .4
1 Board Member Rodgers , although agreeing that the Respondent unlawfully assisted
the Union herein , would not find that the Respondent dominated the Union In his
opinion , Section 10 ( b) of the Act precludes a finding of domination here because it is
based solely upon events which occurred more than 6 months before June 9, 1959, the
date upon which the charge herein was filed That section, lie believes, cannot be evaded
by referring to such events as mere "background evidence ," or by treating them as merely
"shedding light" on the legally admissible evidence See Local Lodge No 14 2 1,, Inter-
national Association of Machinists , AFL-CIO; et al. v. N.L R B. (Bryan Manufacturing
Co ), 362 U S. 411. Accordingly, Member Rodgers would not order the disestablishment
of the Union
3 The Trial Examiner found it unnecessary to decide whether Respondent ' s maintenance
and enforcement of its May 28 , 1958, contract with RWDSU constituted a further viola-
tion of the Act
3 See N L R B v. Sharpies Chemrocals, Inc , 209 F. 2d 645, 653 ( C.A. 6), enfg 100 NLRB
20 See also the Bryan Manufacturing Co case, supra, where the Supreme Court
specifically stated that "where occurrences within the six-month limitations period in and
of themselves may constitute, as a substantive natter, unfair labor practices ,
earlier events may be utilized to shed light on the true character of matters occurring
within the limitations period ; and for that purpose § 10(b) ordinarily does not bar such
evidentiary use of anterior events" at p. 416 Contrary to our dissenting colleague, we
think our treatment of the 10(b) evidence in the present case clearly comports with the
Supreme Court decision in the Bryan case
4,Iack Smith Beveieges, Inc, 94 NLRB 1401, enfd 202 F 2d 100 ( C.A 6), and Poly-
nesian Arts , Inc, 100 NLRB 542, enfd as modified in other respects 209 F 2d 846 (C A 6).
MURFREESBORO PURE MILK CO. 1103:
ORDER
Upon the entire record, and pursuant to Section 10(c) of the Na-
tional Labor Relations Act, as amended, the National Labor Relations.
Board hereby orders that Respondent, Herbert D. Young, d/b/a,
Murfreesboro Pure Milk Co., Murfreesboro, Tennessee, his officers,,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Dominating and interfering with the administration of Old
Hickory Local No. 150, Retail, Wholesale and Department Store
Union, AFL-CIO, or any other labor organization of his employees,
and from contributing support to it or to any labor organization of
his employees.
(b) Threatening reprisals against employees to cause them to ad-
here to Old Hickory Local No. 150, Retail, Wholesale and Department
Store Union, AFL-CIO, or to refrain from joining Teamsters,.
Chauffeurs, Helpers & Taxicab Drivers Local Union No. 327, affiliated'
with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Ind., or any other labor organization.
(c) Giving effect to any and all contracts, or to any extension,,
renewal, modification, or supplement thereof, with Old Hickory Local
No. 150, Retail, Wholesale and Department Store Union, AFL-CIO.
(d) In any other manner interfering with, restraining, or coercing
his employees in the exercise of their right to self-organization, to,
form, join, or assist labor organizations, to bargain collectively
through representatives of their own. choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Old Hickory-
Local No. 150, Retail, Wholesale and Department Store Union, AFL-
CIO, or any successor thereto, as the exclusive representative of the
Respondent's employees for the purpose of dealing with the Respond-
ent concerning grievances, labor disputes, wages, rates of pay, hours;
of employment, or other conditions of employment, and completely-
disestablish said organization as such representative.
(b) Post at his plant in Murfreesboro, Tennessee, copies of the
notice attached hereto marked "Appendix." 5 Copies of said notice,,
to be furnished by the Regional Director for the Twenty-sixth Region,
shall, after being duly signed by the Respondent, be posted by him-
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the-
words "Pursuant to a Decree df the United States Court of Appeals, Enforcing an Order"
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately upon receipt thereof and be maintained by him for a
period of 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Twenty-sixth Region, in
writing, within 10 days from the date of this Order, what steps he has
taken to comply therewith.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, I hereby notify my employees that :
I WILL NOT assist, dominate, or interfere with the administra-
tion of Old Hickory Local No. 150, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO, or any other labor organization of
my employees.
I WILL NOT by threats to discharge employees or by threatening
to shut down my business or any part of it restrain, coerce, or
interfere with the representation of my employees through a labor
organization of their own choosing free of domination, assistance,
or support by me.
I WILL NOT perform, enforce, or give effect to my May 27, 1959,
contract with the aforesaid labor organization, or to any exten-
sion, renewal, modification, or supplement thereof, or to any
superseding agreement with said labor organization.
I HEREBY WITHDRAW all recognition from and completely dis-
-establish Old Hickory Local No. 150, Retail, Wholesale and
Department Store Union, AFL-CIO, as representative of any
of my employees, for the purpose of dealing with me concerning
grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, and will not recognize
it or any successor thereto for any of the foregoing purposes.
I WILL NOT in any other manner interfere with, restrain, or
coerce my employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Team-
sters, Chauffeurs, Helpers & Taxicab Drivers Local Union No.
327, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Ind., or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in any other
MURFREESBORO PURE MILK CO. 1105
concerted activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any and all such
activities.
HERBERT D . YOUNG, D/B/A MURFREESBORO
PURE MILS CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges filed by the Charging Party, herein called
the Teamsters , the General Counsel of the National Labor Relations Board, by
the Acting Regional Director for the Tenth Region , issued his complaint dated
July 17 , 1959, against Herbert D . Young, d/b/a Murfreesboro Pure Milk Co ., herein
also called the Respondent , alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of Section
8(a)(1) and (2) and Section 2 ( 6) and (7) of the National Labor Relations Act,
61 Stat. 136, herein called the Act . Copies of the complaint , the charges and
amended charges , and a notice of hearing were duly served on the parties. The
Respondent 's answer denied commission of the conduct alleged by the complaint
to be unlawful.
Pursuant to notice , a hearing was held at Murfreesboro , Tennessee , on September
9 and 10, 1959 , before the Trial Examiner duly designated to conduct the hearing.
Full opportunity to be heard , to examine and cross-examine witnesses, and to
introduce evidence was afforded all parties . The General Counsel's brief filed with
the Trial Examiner has been carefully considered . The Respondent's motion at
the close of the hearing for dismissal of the complaint , as to which ruling was
reserved , is disposed of in accordance with the findings and conclusions herein.
Upon the entire record in the case, and from observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. PERTINENT COMMERCE ACTS
The complaint alleges that the Respondent is a sole proprietor maintaining his
principal office and place of business at Murfreesboro , Tennessee , where he is engaged
in the manufacture , processing , packaging , bottling, and delivery of milk and milk
products , and that during the calendar year preceding the issuance of the complaint
he purchased and received products valued in excess of $50,000 directly from sup-
pliers located outside the State of Tennessee . The Respondent's answer admits these
allegations , and at the hearing counsel for the Respondent stated that assertion of
jurisdiction by the Board in this case would not be contested . It is found that the
Respondent is engaged in interstate commerce and that it will effectuate the policies
of the Act to assert jurisdiction in this case over his business.
II. THE LABOR ORGANIZATION INVOLVED
The Party to the Contract , herein called the RWDSU , and the Teamsters are
labor organizations which admit to membership employees of the Respondent.
as. THE UNFAIR LABOR PRACTICES
In substance the General Counsel contends that the Respondent , Herbert D.
Young, violated the Act by initiating , sponsoring, forming, assisting , and dominating
the RWDSU as the labor organization representing his employees in collective-
bargaining relations with him , and that when the employees sought to be represented
560940-61-vol. 127-71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Teamsters Young attempted to prevent this result by further acts of unlawful
assistance including threats and promises of benefit.
The Respondent's employees before July 1957 had not been represented by any
labor organization. Nor had there been any organizational activity among them
on their part or by a labor organization. In that month Young placed a signed
notice on the plant bulletin board instructing the employees to attend a meeting
the following night at a bank building in Murfreesboro where the Respondent
customarily held meetings of his route salesmen. At the appointed time and place
Young opened the meeting and declared that it had been called to organize a union.
He added that he had himself contacted the RWDSU and explained that a union
would be beneficial to his business as well as to the employees. He then introduced
Bettice, the International representative of the RWDSU parent organization, who in
turn introduced Pate, the president and business manager of Local No. 150 of the
RWDSU. At this juncture Young left the meeting. Thereupon Bettice and Pate
spoke briefly to the employees and encouraged them to join their organization.
Following their remarks, which included answers to the employees' questions, Bettice
and Pate procured signatures from the employees designating the RWDSU as their
representative. The Respondent's drivers who delivered milk to the Nashville area
received cards or stubs showing their affiliation with the RWDSU. Nothing else
appears to have transpired at the meeting.
Young's desire for unionization of his employees and his efforts to accomplish
that objective are clearly exposed by his admissions to employee Eli Smith. The
latter testified without contradiction that sometime before the meeting at the bank
Young had sounded him out and had expressed his need for a union in the plant
because some of the factories in Nashville to which he delivered milk had indicated
that their purchases would cease if the Respondent's plant were not unionized
within a stated time. Young further told Smith that he would contact a union
man from Alabama (undoubtedly Bettice) and would bring him to Murfreesboro
to "see what could be done about it, about fixing a contract and seeing if the boys
wanted it and everything."
Following the meeting at the bank Young granted the request of one of the
employees for permission of hold union meetings in an old office building owned
by the Respondent and located on its premises. Three or four meetings were held
there before the first contract between the Respondent and the RWDSU was
executed on May 30, 1958. At one of these meetings the employees elected two
members to their negotiating committee. Subsequently Young himself designated
two employees to serve on this committee together with the two elected members.
According to the undenied testimony of employee Jim Young, who was one of
the elected members of the committee, Respondent Herbert D. Young had said at
one of the negotiating meetings preceding the signing of the first contract that "he
would like to appoint two men to help him out." He thereupon made his
designations and his appointees joined the committee and participated as negoti-
ators. When agreement was reached the committee, including the two members
appointed by Young, signed the contract in behalf of the RWDSU.
Employee Quiller Delbridge was employed by the Respondent on October 22,
1958 On that date Young spoke to him in his office and said, "We belong to the
Union here and everyone is supposed to join." Young also informed him that the
dues were $2.50 monthly. Delbridge joined the RWDSU 3 weeks later after his
membership had been solicited by employee Jim Young.
The aforementioned contract had a June 1, 1959, termination date. Before
negotiations for a new contract began in April 1959, the employees met and decided
to ask for a 40-hour week with time and one-half pay for all work over 8 hours
daily. Demands for other benefits were also formulated. Young objected to
these demands when they were proposed and instead offered a work schedule which
would reduce weekly earnings by $2.50. After Young's counterproposal had been
submitted to the negotiating committee, which still included the two members
appointed by him, a meeting as held in the plant by the committee with the em-
ployees who voiced dissatisfaction with the proposed reduction in their earnings.
The committee was instructed to demand a pay increase which would permit
continuation of the same earnings as before despite the reduction in work hours
proposed by Young. A negotiating meeting with Young was held at the plant
during the afternoon of Tuesday, May 26. Young was apprised of the employees'
new demand but was unwilling to yield to it. Instead he proposed an even more
drastic reduction in worktime.
At this stage of the negotiations the Teamsters was contacted and arrangements
were made for its representatives to meet with the Respondent's employees on
Tuesday night, May 26. This happened also to be the night of the regular monthly
MURFREESBORO PURE MILK CO. 1107
meeting of the RWDSU at which the employees were to have discussed the Respond-
ent's latest proposal. The employees turned out, not for the regular meeting of
the RWDSU, but for the Teamsters meeting. Only the aforementioned Jim Young,
employee J. H. Youree who was one of Herbert D. Young's appointees to the
negotiating committee, and President Pate were present. Lack of employee attend-
ance compelled cancellation of the meeting. Jim Young thereupon went with
Pate to the plant and related to Herbert D. Young the failure of employees to attend
the meeting and the fact that he and Pate could not take a position regarding
Young's proposals without any expression from the employees.
Wednesday of each week is a day off for the Respondent's plant employees. On
these days approximately three employees report for work. On Wednesday, May
27, Jim Young together with Roy C. Johnson, the Respondent's accountant, notified
the employees by telephone to come to a meeting that day at 5 p.m. at the plant.
According to Jim Young, 9 of a total of 22 or 23 employees showed up for the
meeting. President Pate who was present testified that 14 employees arrived. A
vote was taken on the contract as proposed by the Respondent and the result was in
favor of its acceptance. Young recalled that there were two votes taken. He
could not remember the outcome of the first. A second vote was taken because an
employee arrived who had not voted. The final outcome, he stated, was six votes
for acceptance, two again, with one abstention. Pate also recalled that there were
two votes. In the first vote, the 9 or 10 employees present voted unanimously for
acceptance of the contract. A second vote was taken because of the arrival of an
additional four employees. The final tally he recalled was 13 for acceptance with
1 abstention.
Directly after the vote was taken on the contract the negotiating committee
members present at the meeting, including Jim Young and the two members
appointed by Respondent Young, went to the latter's office to resume contract
negotiations. President Pate and two other employees accompanied the committee.
Respondent Young insisted that the contract be signed that night. He agreed to
pay double time instead of time and one-half for holiday work (Pate testified that
double time concession for holidays was made before the vote on the contract)
and to continue a 5-cent hourly premium for work before 6 a.m. and after 6 p.m.
The contract was thereupon signed for the RWDSU by the three members of the
negotiating committee who were present and by President Pate.
On June 2, 1959, the Teamsters filed a representation petition seeking certification
as representative of the Respondent's production and maintenance employees and
drivers. It does not follow, as argued at the hearing, that because the petition was
filed on June 2 the Respondent had no knowledge during relevant times in this
proceeding concerning the interest of its employees in representation by the
Teamsters. There is abundant evidence to the contrary. Thus, Johnson, the afore-
mentioned accountant who appeared at the contract negotiations with Herbert D.
Young, testified that he had heard from some of the employees that there was
another union in the picture and had on Wednesday, May 27, reported this informa-
tion to Young before the employees were summoned to the plant to vote on the
contract. Johnson acknowledged that he had discussed this matter with Young
several times both before and after the contract was signed on May 27 and that
Young had told him he "would not recognize the Teamsters should they ever get
voted in." There is other evidence, adverted to hereinafter, amply revealing
Young's knowledge of Teamsters activities and his hostile reaction thereto during
relevant times.
Upon arrival at work on May 28 Edmond Armstrong was apprised by Herbert D.
Young that the contract had been signed the night before by the other members of
the negotiating committee. This was Armstrong's first knowledge of this circum-
stance. Young asked him to sign but Armstrong refused to do so before speaking
to the employees. Young replied "he would just send it (apparently the contract)
on in anyway, it would still be legal." He further told Armstrong that "he knew
(the employees) had been talking to another union, that it would be up to him
whether he would recognize it or whether he didn't."
Employee Bobby Robinson also was summoned to Herbert D. Young's office on
May 28. Young remarked "if this other union comes in it will take all my authority
away and I want to be able to do for you all what I want to do." He added that he
might have to let a couple of men go so that the remaining employees could get
extra worktime which would enable them to continue to earn as much as they
did previously. He pointed out that he (Young) might lose his job and that
Robinson might lose his. He concluded with a direction to Robinson to return to
the plant and to speak to the men to see "if we couldn't get this thing straightened
out and to go ahead with the union we already have."
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Riley Hayes, too , was called to Young's office on May 28. Young
reminded him of their friendship and asked whether he was trying to "stab him in
the back." He stated that he had been informed that Hayes was "trying to call
in the Teamster 's Union" and did not want to believe that . He declared he would
have to discharge employee Quiller Delbridge for trying to bring in the Teamsters.
Hayes told Young that Delbridge had nothing to do with it. Young remarked that
he would not recognize the Teamsters and would "close the door before he would."
He then directed Hayes to speak to Edmond Armstrong to see whether they could
"get something settled," and to return after he had finished work . Later that day
Young spoke to Armstrong and Hayes in the plant and inquired whether they had
reached a decision . They told him they had not and nothing further was said.
Young also had a conversation with employee Quiller Delbridge on May 28. He
called him aside and asked why he was trying to cut his throat . Delbridge revealed
that the men were dissatisfied because their earnings were to be reduced. Then
Young told Delbridge he had heard he had joined another union . He asked him
whether he liked his job and whether he wanted to work. He pointed out that he
could have discharged him sometime before when he had caught him asleep in the
boilerroom . Young questioned what Delbridge would do with two unions and
directed him to talk to the other men and to try to "straighten this thing out." He
emphasized that a 2-year contract with the RWDSU had been signed.
Wesley Harris was another employee to whom Young spoke in his office on
May 28. Young remarked that it looked "like you boys are trying to stab me in
the back" and that he had heard "you all are trying to go to another union." He
suggested that the employees should come to him with their problems rather than
to "another union."
On June 4 Young addressed his employees at a meeting he had called in the
plant in an effort to persuade them to go along with the contract and to abandon
their opposition to it . He related the business pressures he then faced and promised
that if the situation were to improve he would try to make adjustments so that the
employees would not suffer because of the reduction in time or earnings under the
new contract . He pointed out how that very morning he had considered an arrange-
ment with another company whereby he would bottle his milk more cheaply, but
had abandoned this procedure out of consideration for the employees . He expressed
disappointment over the dissatisfaction of the employees with the contract and regis-
tered regret that they should try to foist another union on him. He emphasized to
the employees that it was up to them whether the plant was to continue its operations
or whether the work was to be farmed out. He left with them the impression that
he could not operate under the terms which some other union might demand from
him. In this connection the General Counsel 's witnesses specifically recalled that
Young mentioned the Teamsters as the other union , and I am satisfied from their
credited testimony that he did make such reference.
During the course of Young's remarks he was asked by employee Edmond Arm-
strong whether he regarded the contract as legal and whether he would hold the
employees to it. Young answered affirmatively . He told the employees to come
to him with their complaints and not to run elsewhere . Armstrong commented that
if the employees were to go directly to him they had no need for the RWDSU and
ought to save their monthly dues. Armstrong called for a vote on this question.
Young opposed this and urged the employees to think about it for a few days. He
counseled that it would be better for them to keep their union.
Following the meeting Young conferred with Armstrong about the 45-hour week
provision in the contract and promised that he would check his books to see whether
he could grant an increase to the employees which would enable them to earn as
much as they did under the 50-hour week of the former contract . The next day
he summoned Armstrong and another employee to his office and announced that
he would give the employees 47 hours per week. The Respondent 's accountant, the
aforementioned Johnson , testified that notwithstanding the 45 -hour provision in the
contract 47 hours weekly are now scheduled. He acknowledged that since the sign-
ing of the contract there have been no negotiating sessions between the Respondent
and the RWDSU.
The foregoing recital is based almost in its entirety on the uncontroverted testimony
of the General Counsel 's witnesses , who, I am satisfied testified dispassionately with
intent to tell the truth . I credit their testimony . For reasons not explained the
Respondent, Herbert D. Young, did not testify. Accordingly , I regard this circum-
stance as support for the truth of testimony by the General Counsel's witnesses
which he alone could have refuted .. The only witnesses who appeared for the
Respondent were President Pate and employee R. L. Gortnay. The latter was shown
to be an unreliable witness whose testimony does not merit credence . Pate's testi-
MURFREESBORO PURE MILK CO. 1109
mony was in most respects consistent with that of the General Counsel's witnesses.
It varied mainly with respect to what Young said at the June 4 meeting. Here,
however, the variance was essentially a matter of emphasis. Even if I were to except
Pate's shading of Young's remarks I would not regard his version as materially
different from that of the General Counsel's witnesses. In any event, I have credited
them and I am satisfied that they reliably reported the sense of these remarks as I
have related them herein.
Undeniably the Respondent initiated and sponsored the unionization of his em-
ployees by the RWDSU. Not only did the idea of a union in his plant spring from
him, but he alone took the action necessary to transform the idea to reality by con-
tacting the RWDSU representatives and arranging the meeting at which they could
solicit the membership of the employees. In addition he donated his prestige to the
RWDSU by opening the meeting and introducing the union representatives, and
contributing his influence to the success of their mission, and of course his own, by
encouraging the employees to join the RWDSU as necessary for his business. His
subsequent material support to the RWDSU by permitting the use of his property
for its meetings, and his admonition to employee Delbridge that everyone is supposed
to join the RWDSU are unquestionably established. The appointment by Young
of two members to the RWDSU negotiating committee "to help him out" and the
participation of these appointees in the negotiation of the first contract are undisputed.
All these acts constituted unlawful assistance and domination of the RWDSU in
contravention of Section 8(a)(2) of the Act. No finding, however, that the Act
was violated by,any of the foregoing conduct is permitted in this proceeding,' and
no such finding is made because this conduct was committed more than 6 months
before the filing of the charge on June 9, 1959.
While conceding that the foregoing conduct may not be the predicate for a finding
of statutory violation, the General Counsel correctly asserts that it may constitute
evidence for the evaluation of other conduct committed within the allowable statutory
period? Consideration of such evidence reveals that the labor organization assisted
and dominated by the Respondent from its inception continued to exist and operate
in its same pernicious form and manner during the period within 6 months from
the filing date of the charge. The same dominated negotiating committee stacked
with the Respondent's appointees continued to function and on May 27, 1959, signed
a hastily concluded contract with the Respondent undoubtedly to block the organiza-
tion of the employees of the Teamsters. The vice of this situation is dramatically
demonstrated by the fact that when elected Committee Member Armstrong refused
to sign the appointed members constituted a majority, and their signatures permitted
the Respondent to insist that he had a binding contract which he would enforce
despite opposition from his employees. Thus, the labor organization inspired by the
Respondent at the beginning to serve his business interests remained a controlled
instrument for the preservation of his interests. Not only were the employees
frustrated in their efforts to negotiate a contract through freely chosen representatives
and to press through legitimate negotiations for a contract which reflected their
demands, but the contract signed in their behalf by the Respondent's appointed
"helpers," and perforce his agents, was now asserted to deny them the free choice
of a bargaining representative. These unlawful acts of assistance and domination
of the RWDSU are so apparent that extended discussion is needless. The Respondent
by these acts violated Section 8(a) (2) of the Act 3 Because this conduct constituted
restraint, coercion, and interference with the rights of employees guaranteed by
Section 7 of the Act it was also violative of Section 8(a) (1) of the Act.
The Respondent gave further unlawful assistance to the RWDSU and interfered
with the statutory rights of his employees in violation of Section 8(a)(2) and (1)
of the Act by threatening employees Robertson, Hayes, and Delbridge with dis-
charge for supporting the Teamsters; by his directives to employees Robertson and
Delbridge to straighten things out with their fellow employees which in context means
to persuade the employees to cease supporting the Teamsters; by his remarks to
employee Hayes that he would not recognize the Teamsters and would "close the
door" before he would; and by telling his employees in his speech on June 4, 1959,
that it was up to them whether he farmed his work out to another dairy which in
context I construe as a threat to curtail his operations if the employees selected the
Teamsters as their representative
I Section 10(b) of the Act states in pertinent part that no "complaint shall issue based
upon any unfair labor practice occurring more than six months prior to the filing of the
11charge with the Board . . .
a McCulloch Motors Corporation, 120 NLRB 1709
s Pacemaker Corporation, 120 NLRB 987
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am not convinced that the increase of the workweek from 45 to 47 hours neces-
sarily represents a benefit granted to the employees by the Respondent to persuade
them to retain membership in the RWDSU and to discourage activity in behalf of the
Teamsters It could just as well reflect the realization by the Respondent that the
45-hour week provision of the new contract was improvident and would disrupt
worker morale irrespective of any union considerations. I do not rely on this conduct
as a basis for the foregoing findings of violation of the Act. The action of the
Respondent in making this change without consulting the RWDSU is, as the General
Counsel points out, evidence of the subservience of that labor organization to the
Respondent. In this connection I note also the lack of knowledge conceded by
President Pate on the occasion of the Respondent's speech to the employees about
farming out work and his seeming indifference to this announcement after it was
made as further evidence of the dominance of the Respondent over the RWDSU.
It has been shown that the Respondent granted the RWDSU permission to hold
its meetings on company premises and that such meetings were held on these prem-
ises not only before the 10(b) period, but afterwards on two occasions. It is also
true, as Edmond Armstrong testified, that he attended a negotiating session on May
26, 1959, with the Respondent during working time for which he was paid. While
these acts of assistance, standing alone, might not be sufficiently significant to warrant
a finding that the Respondent thereby violated the Act, it is my view that they
should in the context of this case be deemed unlawful so that an order may be
recommended requiring the Respondent to cease and desist from any future acts
of material assistance to any labor organization. This I believe necessary to cure
the effects of the Respondent's misconduct in the case. I find that the Respondent
by granting the use of his premises to the RWDSU for the purpose of holding its
meetings and by paying for the time of an employee representing the RWDSU spent
in negotiating with him the Respondent gave material assistance to the RWDSU
violation of Section 8(a) (2) of the Act .4 I do not, as the General Counsel would
have me do, find that the telephoning of some employees by the Respondent's
accountant to come to the May 27 meeting was unlawful. This conduct is too
trivial to warrant a finding of statutory violation. In view of the substantial evidence
of unlawful assistance and domination found herein I need not pass upon the
General Counsel's further contention that the Respondent's maintenance and enforce-
ment of the May 28, 1958, contract with the RWDSU during the period less than
6 months before the filing of the charge constituted an additional act of unlawful
assistance. The findings already made are sufficient to support the order hereinafter
recommended.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent has violated Section 8(a)(2) and (1) of
the Act by assisting, dominating, and interfering with the administration of the
RWDSU. I have also found that the Respondent by threats to his employees
interfered with, restrained, and coerced them in the exercise of their rights guar-
anteed by Section 7 of the Act in violation of Section 8(a) (1) of the Act. Accord-
ingly, it will be recommended that the Respondent withdraw and withhold recog-
nition from the RWDSU as the exclusive collective-bargaining representative of
his employees and cease giving effect to the contract with the RWDSU executed on
May 27, 1959, or to any modification, extension, supplement, or renewal thereof,
or to any superseding agreement with the RWDSU, and further that the Respondent
completely disestablish the RWDSU as the exclusive collective-bargaining repre-
sentative of his employees. Nothing in this recommendation, however, shall be
deemed to require the Respondent to vary those wages, hours of employment, rates
of pay, seniority, or other substantive provisions in its relations with its employees
which the Respondent had established in the performance of the said contract, or
4 MCCulloeh Motors Corporation, supra.
PUTNAM TOOL COMPANY 1111
to prejudice the assertion by his employees of any rights that they may have there-
under . It will also be recommended that the Respondent be ordered to cease and
desist from interfering with, restraining , or coercing his employees in the exercise
of their rights guaranteed by Section 7 of the Act by threatening them with discharge
or with the cessation of any of the operations of his business . In view of the nature
of the unfair labor practices committed, the commission by the Respondent of
similar and of other unrelated unfair labor practices may be anticipated . It will
therefore be recommended that the Respondent be ordered to cease and desist from
in any manner infringing upon the rights guaranteed his employees by Section 7
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Herbert D. Young, d/b/a Murfreesboro Pure Milk Co., is an employer within
the meaning of Section 2(2) of the Act , and is engaged in commerce within the
meaning of Section 2 ( 6) and (7 ) of the Act.
2. Teamsters, Chauffeurs, Helpers & Taxicab Drivers Local Union No. 327,
affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America, Ind., and Old Hickory Local No. 150, Retail, Wholesale
and Department Store Union, AFL-CIO, are labor organizations within the meaning
of Section 2 (5) of the Act.
3. By assisting , dominating , and interfering with the administration of the RWDSU,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (2) of the Act.
4. By interfering with, restraining , and coercing his employees in the exercise of
rights guaranteed by Section 7 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.
[Recommendations omitted from publication.]
Putnam Tool Company and International Union of Electrical,
Radio and Machine Workers, AFL-CIO. Case No. 7-CA-3247.
June 15, 1960
DECISION AND ORDER
On March 14, 1960, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.'
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 [Members Rodgers, Bean, and
Fanning].
The Board 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 entire
record in this case, including the Intermediate Report, the exceptions,
i The Respondent' s request for oral argument is hereby denied as the record , including
the exceptions and brief, adequately presents the issues and the positions of the parties.
127 NLRB No. 142,