Roberts & Oake, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1943

50 N.L.R.B. 494 (N.L.R.B. 1943)

In' the Matter of ROBERTS & OAKS, INC., JAMES P. CAREY, JR., IN-
DIVIDUAL TRUSTEE, AND CHAMBER OF COMMERCE OF MADISON, SOUTH
DAKOTA and AMALGAMATED MEAT, CUTLERS AND BUTCHER WORK-
MEN OF NORTH AMERICA, A. F. OF L.
Case No. C-2582.-Decided Jwn,e' 15, 1943
DECISION
AND
ORDER
On April 9, 1943, the Trial Examiner issued his Intermediate Re-
port 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 that it.take
certain affirmative action, as set forth in the copy of the intermediate
Report annexed hereto. Thereafter, the respondent company, the
respondent trustee, and the Union filed exceptions to the Inter-
mediate Report and briefs in support of their exceptions. The re-
spondent Chamber of Commerce has not excepted to the findings and
recommendations of the Trial Examiner. The Board has consid-
ered the rulings made by the Trial Examiner at the hearing and finds
that no prejudicial error was committed. The rulings are hereby
affirmed.
Upon request of the Union and pursuant to notice, a hearing was
held before the Board in Washington, D. C., on June 8, 1943, for the
purpose of oral argument. The respondent company, the respond-
ent trustee, and the Union were represented by counsel and partic-
ipated in the hearing.
The Board has considered' the Intermediate Report, the exceptions
and briefs filed by the parties, and the entire record in the case, and
hereby adopts the findings, conclusions,'and recommendations of the
Trial Examiner with the following addition :
The Trial Examiner has found that the remarks of Plant Manager
Stephenson to employees Jensen, Mathison, and Harms were clearly
derogatory of the Union, but has not found that by these remarks
the respondents engaged in unfair labor practices, within the mean-
ing of Section 8 (1) of the Act. We are of the opinion and we find
50 N. L. R. B., No. 78.
494
ROBERTS & OAKE, INC. 495
that, by Stephenson's remarks to Jensen, Mathison, and Harms, as
well as by his statements to Seitz and Mooney, -the, respondent com-
pany and the' respondent trustee, interfered with, restrained, and co-
erced their employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.,
ORDER I
Upon' the entire record in the case, and pursuant to Section 10 (c)
•of the National Labor Relations Act, the National Labor Relations,
Board hereby orders that the respondent company, Roberts & Oake,
Inc., and the respondent trustee, James P. Carey, Jr., Madison South
Dakota, and their officers, agents, successors, and assigns, shall:
° 1. Cease and desist from :
(a) Dominating or interfering with the administration of Madi-
son Independent Meat Packers Union or with the formation or ad-
ministration of any other labor organization of their employees, and
from contributing support to Madison Independent Meat Packers
Union or to any other labor organization of, their employees;
(b) In any other manner interfering with, 'restraining, or coercing
their employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed -activities for the purpose -of collective bargaining or other
mutual aid or protection,, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Withhold all recognition from Madison Independent Meat
Packers Union as the representative of any of their employees for
the purposes of dealing with the respondent company or the respond-
ent trustee concerning grievances, labor disputes, rates of pay, wages,
hours of employment, or, other conditions of, employment, and com-
pletely disestablish. Madison Independent Meat Packers Union as such
representative ;
(b) Post immediately in conspicuous places•at'the plant in Madi-
son, South Dakota, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to their employees
stating : (1) that the respondent company and the respondent trustee
will not engage in the conduct from which they are ordered to cease
and desist in paragraphs 1 (a) and (b) of this Order; and (2) that the
respondent company and the respondent trustee will take the affirma-
tive action set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Eighteenth Region in
writing, within ten (10) days `from the date of this Order, what steps
496 DE,CTSMON OF NATPONAL LABOR RELATIONS BOAP
the - respondent company and the respondent trustee have taken, to
comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges: (1) that the respondents Roberts &
Oake, Inc., and James P. Carey, Jr., individual trustee, have engaged
in unfair labor practices, within the meaning of Section 8 (3) of the
Act; and (2) that the respondent Chamber of Commerce has engaged
in unfair labor practices, within the meaning of Section 8 (1), (2),
and (3) of the Act.
MR. GERARD D.' RErLLY took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT
Mr. Stephen M. Reynolds, for the Board
Mr. James P. Carey, Jr., of Chicago, III, for the respondent company and the
respondent trustee.
Mr. J. H. Lammers, of Madison, S. Dak., for the respondent Chzmber of
Commerce.
Mr. Sam Twedell, of Sioux Falls, S. Dak., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on February 19, 1943, by Amalgamated
Meat Cutters and Butcher Workmen of North America, A. F. of L., herein called
the Union, the National Labor Relations' Board, herein called the Board, 'by the
Regional Director for the Eighteenth Region (Minneapolis, Minnesota), issued
its complaint dated February 19, 1943, against Roberts & Oake,' Inc , herein
called the respondent company, James P. Carey, Jr., individual trustee, herein
called the respondent trustee, and the Chamber of Commerce of Madison, South
Dakota, herein called the respondent Chamber of Commerce, alleging that the
respondent company, the respondent trustee and the respondent Chamber of
Commerce jointly and severally had engaged in and were engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (1), (2),
and (3 ) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies 'of the complaint, accompanied by notice of hearing thereon, were duly
served upon the respondent company, the respondent trustee, the respondent
Chamber of Commerce, Madison Independent Meat Packers Union, herein called
the Independent, and the Union.
With respect to the unfair labor practices, the complaint alleged in substance:
(1) that the above-named respondents, jointly and severally, by their officers,
agents, and employees, on or about January 2, 1943, instigated, sponsored, inter-
fere with, and participate in the administration of that organization, and con-
Madison Independent Meat Packers Union, and did thereafter dominate, inter-
fere with and participate in the administration of that organization, and con-
tributed financial and other support to it; (2) that the respondents jointly and
severally, by their officers, agents, and employees, on or about January 4, 1943,
discharged Louis Prager and Lawrence Bowman and thereafter refused to,re-
instate them for the reason that they joined and assisted the Union, and engaged
in concerted activities with other employees for the purpose of collective bar-
gaining and other mutual aid and protection; (3) that the above-named
.
ROBERTS & OAKEi INC. 497
respondents; by these and various enumerated acts,' interfered with, restrained,
and coerced employees of the respondents in the exercise of the rights guaranteed
in Section 7 of the Act.
On February 27, 1943, respondent Chamber of Commerce filed its answer
denying the commission of any unfair labor practices, and denying that it was an
"employer" within the meaning of the Act. On March 1, 1943, the respondent
trustee and the respondent company filed an answer admitting certain allegations
of the complaint, but denying the commission of any unfair labor practices.
Pursuant to notice, a hearing was held from March 8-to March 11, 1943,
inclusive, at Madison, South. Dakota, before the undersigned, the Trial Exam-
iner duly designated by the Chief Trial Examiner. The Board, the respondent
company, the respondent trustee, and the respondent Chamber of Commerce, were
represented by counsel. All parties participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
^evidence-bearing on the issues was afforded all parties.
On motion duly made on March 12, 1943, the Board moved, without objection,
to amend its complaint to allege that the respondent Chamber of Commerce
was a non-profit corporation organized under the laws of the State of South
Dakota. The motion was granted. At the conclusion of the Board's case,
counsel for the Board moved to conform the pleadings to the proof. The motion
was granted, over objection by the three respondents, as to immaterial matters
such as names, dates, spelling and the like. At the conclusion of the Board's
case, the three respondents moved to dismiss the complaint. Ruling was re-
served. The motions are disposed of as hereinafter set forth. At the con-
clusion of the hearing, oral argument was had before the Trial Examiner. The
parties were granted ten (10) days in which to file briefs. A brief has been
filed by the respondent Chamber of Commerce.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENTS
Roberts & Oake, Inc , is a corporation organized under the laws of the State
of Delaware, haying its principal office and place of business in the city of
Chicago, Illinois, where it is engaged in the processing, sale, and distribution
of pork products. It also has a place of business in the city of Madison, South
Dakota, which is the plant involved in this proceeding, where it is engaged in
the purchase, slaughter, and processing of hogs and in the shipping of finished
and semi-finished pork products. The annual value of livestock and other
materials purchased for use at the Madison plant is between two and three mil
lion dollars. The gross sales at the Madison plant during the period from April
13, 1942, through March 6, 1943, amounted to $3,814,673 98. The majority of the
shipments involved in these sales were made to the Chicago plant of the respond-
ent company. ,
On or about April 19, 1941, the United States District Court for the Eastern
Division of the Northern District of Illinois, appointed James P. Carey, Jr.,
'The enumerated acts included statements of officers, agents, and employees of these
respondents warning and discouraging employees of the respondent company and respond-
ent trustee against affiliation with or activities on behalf of the-Union and unions having
outside affiliations, questioning employees about their union affiliations and activities,
making derogatory and disparaging remarks about unions and union leaders , and soliciting
and encouraging employees to resign from the Union.
I
498 DIEiCIDSJO\'S OF NAT(DONAL LABOR RELATIONS BOARD
individual trustee of the properties of the respondent company . The respondent
trustee operated the business of the company from the date of his appointment
and was still operating that business as of the time of the hearing . Respondent
trustee admitted that he is an employer of the employees here - involved within
the meaning of Section 2 (2) of the Act,, and that, as trustee , he is engaged in
commerce within the meaning of the Act.
The respondent Chamber of Commerce is a non-profit corporation organized
under the laws of the State of South Dakota . Its membership is composed of
business and professional men located in the city of Madison : The purpose
of the Chamber ' is to promote the welfare and development of"the city of Madison
for both residential and business purposes.
II. THE ORGANIZATIONS INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America is a
labor 'organization • affiliated with the American , Federation of Labor , admitting
to membership employees of the respondent company and the respondent trustee.
Madison Independent Meat Packers Union is an unaffiliated labor organization,
admitting to membership employees of the ' respondent , company and ' respondent
trustee. • I _
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events; organization of the Independent; interference, restraint,
and coercion
On or about December 27, 1942, Sam Twedell, 'an, organizer for the Union,
commenced organizational activities among the employees at the Madison,,South
Dakota,, plant of the respondent company, then under the operation of the
respondent trustee. On December 28; 1942, a' meeting was held by Twedell at
the General Beadle Hotel. About 23 employees , attended and 18 employees
signed applications for, membership in the' Union. Emil Harms was designated
'temporary secretary-treasurer of the Union. It was decided that another meet-
ing would be held on Sunday afternoon, January 3, 1943.
- On December 31, Rudolph Gaeckle, Paul Galloway, I J. Lyons, E M. Fred-
rickson, G H. Dibble, Chris Rogues and a Mi. Parker were, pursuant to their
daily custom, drinking coffee at the. State Cafe. Gaeckle was, at that time,
vice president of the Chamber of Commerce and an insurance agent in the
City of Madison. Lyons was an attorney and county judge. Fredrickson was
a Madison merchant and the president of the Chamber of Commerce. Dibble was
secretary of the respondent Chamber of Commerce. 1The remainder of the group
were Madison merchants or professional men. All of the group were members
of the Chamber of Commerce. A discussion was held with reference to the
organizational activities of Mr. Twedell on behalf of the American Federation
of Labor. , It, was suggested that it would disturb existing peaceful relationships
in the city of Madison if an outside organization should organize successfully the
employees at the Roberts & Oake plant. It was decided that it would be better
for the city, if unions were kept out. After some discussion the group proceeded
,to, the office of H. H. Holdridge, an attorney who had practiced in Madison for
many years. The advent of the A. F. of L. was again discussed in similar
vein with Holdridge. It was suggested that Holdridge might address the em-
ployees at a meeting in connection with'the matter of labor unions. \ Holdridge
declined to do so unless a special request was made by the employees themselves
On January 1, Rogues, who had participated, in the discussion at the State Cafe
and the ensuing conference with Ioldridge, communicated with Kasper Jacobson,
ROBERTS & OAPE, INC. 499-
-in old friend and an employee at the Roberts-& Oake plant? They discussed
the activities of Twedell. Rognes suggested to Jacobson that the employees hold
a meeting to consider the problems of labor organizations. Jacobson stated
that'he would talk to some of his fellow employees concerning the possibility of'
holding such a meeting.
Jacobson is a maintenance employee engaged in electrical and mechanical con-
struction and repair work. Jacobson was frequently sent to the shopping center-
in Madison in order to purchase supplies that were needed in construction which
was then-being carried' on at the plant. On January 2, Jacobson, while down
town for this purpose, went to see Rognes and stated that after discussion with
several, employees, it-appeared that the holding of a meeting to consider-the
question 'of employee organization would be desirable Rognes then stated that
a meeting should be held that evening and that he would secure the city hall
for that purpose. He suggested further that Jacobson speak to Holdridge and
ask Holdridge to speak to the employees at the meeting • Jacobson, according
to his testimony, returned to the plant and, after some discussion, with certain
employees, returned to town and requested Holdridge on behalf of the employees
to address the meeting that evening' Holdridge consented.
That afternoon about 5 o'clock, Gaeckle went to the boiler room at the plant
and told three or four of the employees that there war to be a meeting at t,e
city hall that evening. Gaeckle testified, without contradiction, that he remained
long enough to speak to three or four employees, saw the other employees were
busy, and left ; that he went to the plant of his own volition and had not pre-
viously communicated with any of the officials at the plant.
R J. Gunderson, president and general manager of the respondent company,
who was in Madison at this time, testified that 'around January 1, 1943, he had
given permission to Gaeckle, who had personal dealings with some of the employees,
to come to the plant and talk to some of the employees, provided that employees
were not busy and there was no interference with their work 4 In the dressing
room after work sometime between 5 and 6 p. in, Nathan Trooien, general fore-
man at the Madison plant, told approximately half the employees that there
was to be a meeting in the city hall that evening, and that they were requested
to attend' ,
Rogues was a former owner of the Madison plant In April 1942 Rognes and his
brother sold the plant, then operated under the name of Rogues Brothers, to the respond-
ent trustee. At all times material herein, Rognes had no financial interest in the Madison
plant. Jacobson had been employed for approximately 18 years at the plant.
i Jacobson testified that no deductions were made from his pay when he was on company
business down town. He testified 'that no supervisor was aware of his. activities on this
occasion The evidence fails to show that any supervisor at the plant had -such
knowledge
Gaeckle and Wiedenman, Inc, had previously engaged in business transactions with
the respondent trustee Gaeckle was president of Gaekle and Wiedenman, Inc, and
owned 50 percent of the stock of that corporation. As of January 1, 1943, the following
insurance policies written by 'Gaeckle and Wiedenman , Inc., were in force in the name
of James P Carey, Jr , Ti ustee :
Policy 40UF 60800, $26,000 fire and extended coverage on building and permanent
equipinen t.
Policy UF40 66753, $10,000 coverage on stock
Policy 42218, liability policy covering Milwaukee Railroad on whose property the
'packing plant is built
Policy LP43582. public liability.
Policy 50270, Workmen's Compensation policy.
Policy UF40 66424, $10,000 fire and extended coverageon building.
Policy UF40 65030, $20,000 fire and extended coverage on building and equipment.
B Troolen testified. that he either used the words, "asked to attend" or "invited to attend-"
The reasonable purport of such a request made by the general foreman of the plant was
that the employees were expected to attend.
500 ' DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
That evening a meeting was- held at' the city hall. Approximately 65 em-
ployees were present, in addition to Twedell and a Mr. Crowell, an organizer
for the Union.. Jacobson began the meeting by introducing Holdridge. , Hold-
ridge then addressed the employees. He stated, in substance, that he was
speaking at the request of Jacobson concerning the advisability. of the employees
forming a union in Madison ; that labor unions were all right under certain
conditions, but that he did not approve of the -"racketeers and the strong-armed
fellows that manipulated lots of the unions." Holdridge said that Madison
was a small community and "could get along all right without any unions."
He cited the enlargement of the plant and the benefits that would accrue to
the city if the plant should continue to increase in size and personnel. Holdridge
added,that frequently labor unions caused trouble and discord in communities ;
that if the employees joined the Union they would be subject to the orders of
the union people as to the number of hours they would work, as to the amount of
their wages and as to the times at which they would strike. Holdridge suggested
that the employees could not expect to get union wages immediately ; that the
employees "were better off out here at a little less wages than they would be in a
large city" because of the lower cost of living. He made reference to the fact that,
at the present time, the employees were permitted to work overtime as much as
they desired, and stated that if the employees joined the Union, they could only
work as much overtime as the Union permitted ; that the money that would be paid
into the Union as dues by the employees would be spent outside of Madison ;
that if the employees really wanted a union at all, he would suggest the forma-
tion of an independent union of their own, and that thereby they could keep the
money that would be spent as dues in Madison "instead of giving it to Mr.
Twedell" ; that they could use the money for the establishment of a benefit
fund for sickness and hospitalization ; and that it was up to the employees to
make their,own decision as to whether or not they desired to join a union.°
Bowman testified that Holdridge stated that if the employees joined the Union,
the company would replace the employees with employees from Chicago. Bow-
man's testimony in this respect is corroborated by the testimony of Twedell.
Bowman is also corroborated by the testimony of Earl who stated that his
subsequent decision to resign from the Union was actuated in part by a state-
ment made at the meeting of January 2 similar to that testified to by Twedell
and Bowman. Holdridge did not specifically deny making this statement. The
undersigned finds that the statement was made substantially as testified' to by
Bowman.
Twedell testified that Holdridge'stated that if the employees desired an
organization, representatives of the Chamber of'Commerce would be willing to-
form a committee and approach the Company ; and that concessions could be
made in the way of wage increases. Twedell's testimony is, in general, cor-
roborated by that of Holdridge. While Twedell was generally a credible wit-
ness, his recollection that Holdridge mentioned the Chamber of Commerce was
perhaps colored by his interest in the proceedings. Holdridge denied that he
mentioned the Chamber of Commerce. The undersigned is not persuaded that
Holdridge's testimony in this respect is incorrect and credits his denial.
After Holdridge finished speaking, Rudolph Gaeckle stated that he indorsed
Holdridge's remarks ; that coincident with- the possibility of the formation of a
labor union, there had come to his attention a rumor that the Chamber of
Commerce was responsible for "holding wages down within the city limits" ;
that there was no basis for that rumor ; that the Chamber of Commerce had
never discussed labor or wages, and' that the books of the Chamber of Com-
° These findings are based on the testimony of Holdridge.
ROBERTS & OAKE, INC. 501
coerce were open to anyone who cared to inspect them Caeckle stated further
that it was to' the interest of the business men of the community to see that
the `employees of Roberts & Ouke were satisfied and that if the employees were - -
not satisfied , be was certain they - could choose any group of business men and
that these business men would be glad to approach the responsible parties and,
iron out any difficulties involved. Chris Rogues then addressed the employees.
He stated that lie was interested in the welfare of the community and that,
in his opinion, it,was unnecessary to call outsiders to form an organization,
a'nd that he thought a local organization would serve just as well. Trooien
was present-at the meeting and remained throughout.
Several employees who were working at the plant that evening, after express-
ing their desire to attend the meeting, were given permission by Gunderson to
do so. They were absent from their work for approximately an hour and a half,
and returned thereafter. Gunderson testified and the undersigned finds, that
he specifically directed these employees to return because there was work at
the plant which had to be completed that evening. Gunderson testified that he
had no knowledge of the nature of the meeting at that time. Bowman and
other witnesses called by the Board testified that they had no knowledge of
the nature of the meeting prior to the holding of the meeting In the light
of this testimony, although the circumstances are suspicious, no inference can
fairly be drawn that Gunderson, who was a frank straightforward witness,
had such knowledge.
On Monday, January 4, between 1 and 2 o'clock, employees Kasper Jacobson,
Riley Porter, Ervin Halseth, Floyd Halverson, Emil Schaub, and Mike Hayes
punched their time cards and drove down town to see Holdridge. They in-
formed him of their desire to organize, an independent labor organization
and asked him to serve as their attorney Holdridge agreed to do so. These
employees were absent approximately 30 minutes. No permission was requested
from any supervisor at the plant to leave their work.
On January 4 no killing of bogs took place and the activities of the employees
were confined entirely to construction work. The record shows that when
engaged in construction work, employees were given greater freedom of action,
and that-their participation in such work was more or less on a voluntary
basis , There is no evidence that any supervisor was aware of the absence
of these employees on this occasion.
Some time during the week of January 4, Holdridge prepared a petition for
the formation of an independent union. The petition read as follows :
We the undersigned employees of the Robertson Oake Packing Company
(sic) of Madison, South Dakota, believing that it would be desirable and
to the best interests of all of the employees of the said Company to form a
local trade union of their own, insteadt (sic) of joining any outside union,
do'hereby signify our willingness and readiness to join such a union and
would suggest and ask that the proper steps be taken to form sucha (sic)
union, the same to be'confined strictly to employees of the said company,
and not to inculde (sic) any outside persons. and not to have any connection
whatever with any other union.
During that week, the petition was circulated among the employees at the plant.
The employees who took the leading part in the circulation were Jacobson,
Schaub, Halseth, and Matthews. Jacobson testified that he solicited most of the
employees' signatures during working hours, but that the employees did not
sign the petition until after work in the dressing room. Joe Earl testified that
lie was asked by Kasper Jacobson to sign the petition during working hours
in the middle of the afternoon of January 4. Dale Jackson testified that he signed
636103-44-vol 50-33
5O DECISIONS OF NATIONAL LABOR RELATIONS BOARD
i
the petition during working hours in the plant, and that at the time he signed it,
there were approximately 15 employees standing around reading the ,petition.
He testified further that Troolen was not, present at, the time . Morris Jensen
testified that he - signed the petition during working hours at the plant.
Roy,
Mathison testified that he was solicited by Jacobson during working hours with
reference to the petition , and that he signed it at that time . He testified further
- that he had just about completed his work for the day at the time he signed.
John Mathison testified that, at Jacobson 's request he signed the petition dur-
ing working hours and that two or three other employees also signed it at the
same time and place . The undersigned , credits the testimony of Jensen, Roy
Mathison , and John Mathison . Other testimony shows, however, that many,
signatures were obtained both outside , the plant and in the dressing room at
the 'plant after working hours . There is no direct evidence that any supervisor,
observed the activities of Jacobson in connection with the petition or of any
'of -they other employees . Under these circumstances, it cannot fairly be inferred
that the respondent company or trustee sanctioned such activity. , -
Sometime during , this week , a meeting 'of employees was held at-the city
hall attended by approximately • 40 employees . It was decided to form an
independent labor organization , admitting to membership employees of, the
,respondent company and the respondent trustee. Application for a corporate
charter 'under the name Madison Independent Meat Packers Union was prepared
by Holdridge and,signed by Frank Schramer,' Emil Schaub, Kasper Jacobson,
Vern . Matthews and Charles Seitz. The first three names appeared on the
charter as issued as- incorporators of the organization . The charter was issued
by the Secretary of State on January 15, 1943.
On January 22 the Independent had its first general meeting at the city hall
There 'were approximately 65 employees present. A waiver of notice of the'
meeting was signed by most of the employees present. Trustees were elected.
The following , employees were elected to that - office: Arthur Gutzman, Ervin,
Schramer was employed in the office of the respondent company and the respondent
trustee. Schramer signed the petition for an independent union and was one of the in-
corporators of the Independent After consultation with Holdridge , he withdrew from
the Independent . According to Holdridge , Schramer withdrew because he felt that there
might be doubt as to whether or not he was an "executive officer" of the Company. His
duties involved ordinary routine bookkeeping duties, the computation of the pay roll, the
,keeping of records of the making of tankage , and the keeping of a record of the amount of
'supplies on hand and the amount of pioductiou In addition , Schramer had certain duties
in connection with the loading of hogs and other products into the refrigerator cars, and
shipment to the company plant in Chicago. The Board contended that Schramer 's duties
in connection with the loading of hogs was supervisory Emil Harms testified that
Schramer was "supervisor of the loading - dock" ; that Schramer told the employees how
many hogs were to be loaded in each car, and if men smoked on the dock, he censuied them
for it. Schramer denied that he gave oiders to the men and stated that his duties con-
sisted in obtaining iifoumation from the scaler as to the number of "hogs loaded into each
car," and that from that information lie made out the bills of lading He testified that he
worked physically along with the rest of the employees in carrying hogs and loading them
into freight cars ; that Trooien supervised the loading out of hogs. Trooien testified that
he supervised the loading operations and that Schramer had no authority in connection
therewith . Stephenson corroborated Trooien ' s testimony but stated that, on occasion,
Schramer transmitted orders fiom Trooien to the other employees . Noel Dingman, a
witness called by the Board , testified that Schramer uas a clerk . The undersigned finds
that the evidence is insufficient to show that Schramer exercised supervisory functions in
connection with the loading of hogs . The Board ' also contended that Schramer had
'supervisory authority over Oliver, an assistant in the office Oliver had been employed
only,a week or so prior to the 1st.of January Prior to that time Schramer was the only
-office employee The record fails to show, in the opinion of the undersigned , that Schramer
exercised supervision oser the work of Oliver Accoidingly , the undersigned finds that the
respondent trustee and the respondent company are not iesponsible for the activities of
Schramer in connection with the formation of the Independent.
1
ROBERTS & OAKE, INC. 503
Halseth, Emil Schaub, Floyd Halverson, and Charles Seitz. The meeting was,
adjourned in order that a constitution and bylaws might be prepared. On Feb-
ruary 5, another meeting of the Independent was held at the city hall. The
constitution and bylaws which had previously been drawn by Holdridge were
lead to the employees, and adopted. Officers were elected. Arthur Gutzman was,
elected president ; Vern Matthews, treasurer ; and Ervin Halseth, secretary. The
constitution and bylaws provide that the organization should be called, the Madi-
son, Independent Meat Packers Union. Membership is limited to employees of
the respondent company. Provision is made for the designation of a governing
board, which fulfills the function of a bargaining committee. The bylaws provide,
for a closed shop, although no bargaining negotiations have taken place with the
management, and there is no existing contract between the Independent and the
respondent company or the respondent trustee. There is provision for submission
of disputes to arbitration, at the discretion of the Board of Directors. The bylaws
provide for the posting of notices of meetings at the plant, although there is
no evidence that any such notices have ever been posted or that the respondent
company or trustee have agreed to such a procedure. There is provision for the
election of a president, vice president, secretary and treasurer, and a board of
directors consisting of five members. The, purposes of the organization are
stated to be "to secure to its members the rights of self-organization and collective
bargaining thro (sic) delegates of its own choosing." 8
No further' meetings have been held by the Independent.
1. Statements of Stephenson
Charles Seitz, a trustee in the Independent, testified that sometime between
December 28, 1942, and January 2, 1943, Keith Stephenson, plant manager, asked
him if he "belonged to the Union." Seitz testified that he answered in the nega-
tive. 'Seitz testified further that about 30 minutes later he, contrary to the rules,
was smoking while working ; that Stephenson approached him and stated that if
he belonged to the Union he could not smoke; that he replied that he guessed
that he would keep on smoking then. Seitz testified that he considered Stephen-
son to be joking. Stephenson denied ever having such conversations with Seitz.
The undersigned has found below that Stephenson engaged in other conversations
with employees with' reference to the Union. The undersigned does .not credit
his denial.
During the early part of January, according to the testimony of Morris Jensen,
Stephenson approached Jensen and said to him that he should not let anyone
tell him that the Union was any good. Stephenson also asked Jensen if he was
not satisfied "with what [he] was getting out there, if [he] wasn't making
pretty good money." Stephenson denied that he stated to Jensen that Jensen
should not let anyone tell him that the Union was any good. He did not specifi-
cally deny that he had approached Jensen and asked him whether or not he was
satisfied The undersigned was not impressed with the testimony of Stephenson
and found Jensen to be a credible witness. The undersigned credits the testimony
of Jensen, and finds that the conversation' occurred substantially as testified to
by Jensen.
Roy Mathison testified that sometime in January he wore his A. F. of L.
button on his cap at work. On the first occasion on which he wore the button,
Mathison appeared wearing the button on his cap. Upon returning to work that
8 Jacobson, who claimed to be responsible for the foimation of the Independent, testified
that-his purpose in founding that organization Sias solely to keep the A. F. of L. out of
Madison and that the problems of wages and working conditions were intended to be left'
to unilateral action by the trustee and the company.
536105-' 44-vol 50=34
504' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evening, he wore a different cap and no button. Mathison testified that Stephen-
son at that time approached him' and said, "You've got the wrong cap on, haven't
you?" and that he replied, "Well, I don't know whether it is the wrong cap, but
I've got to have another button." Stephenson replied, according to Mathison,
"Well, you don't need to worry ; you'11 get one " Stephenson's version of the
conversation was not substantially different, but Stephenson testified that "It was
:ill in fun " The undersigned credits the testimony of Mathison.
Emil Harms testified, without contradiction, that sometime in January Stephen-
'son approached him while he was at work and asked Harms how old he was.
Harms replied that lie was 23. According to Harms, Stephenson then said;
"Why don't you go home and sit down and think things over," and then he said,
"I am not trying to be sarcastic." Harms testified that, at that time, he was
wearing his A. F of L. button. The undersigned credits the testimony of Harms
and finds that the conversation occurred, substantially as testified to by him.
As related above, Harms was secretary treasurer of the Union, and the record
shows that he was one of its most active proponents. The remarks of Stephen-
son to Jensen, Mathison and Harms are clearly derogatory to the Union.
Michael Mooney testified that sometime in January, Stephenson asked him if
he had an A. F. of L. button. -Mooney at first said that he had no button because
he had, not attended the previous meeting. Stephenson then asked Mooney if
he was ashamed to wear his button. Mooney replied that he was not ashamed
to wear it, went out to got the button, and thereafter wore it. Stephenson ad-
mitted that he began a similar conversation but stated that he had added the fol-
lowing remark when Mooney said he would oiitaiii the button and wear it, "Go
ahead. Don't be ashamed of it Anything you pay a dollar for don't be ashamed
of." Stephenson testified furtlici that the conversation was purely humorous
and constituted a bit of "packing house by-play." The undersigned finds that the
conversation occurred substantially as testified to bv'1\1oonev. -Notwithstanding
any humorous intent on the part of Stephenson the statements made by him to
Seitz and Mooney contain elements of interference, restraint, and coercion pro-
hibited by the Act. By these statements, the respondent trustee and the respond-
ent company indicated opposition to the A F. of L, and interfered with,
restrained, and coerced the employees in the exercise of the rights guaranteed in
Section 7 of the Act.
CON C LU SIdNs
It is clear that Trooien , the leading foreman in the plant of the respondent
company operated by the respondent trustee , publicized to a considerable extent
the holding of the meeting of January 2 Trooien testified that he did not know;
at that time , the nature or purpose of the meeting. Although quite positive in his
other testimony , he was unable to remember the source of his information as to
the holding of the meeting . Trooien's testimony as to his lack of knowledge of
the nature,of the meeting is, in the opinion of the undersigned , incredible. In
the face of the fact that Troolen considered the meeting sufficiently important to
announce that it would take place that evening to approximately one-half of the
employees , or about 40 people, the undersigned conclude ,- that Trooien did, in
fact, know the nature of the meeting ' A request to attend by the general foreman
of the plant would not be readily ignored by the employees. Trooien , as related
above , was present throughout the meeting. It is clear that the remarks of
Holdridge were intended , and had the effect of encouraging the employees to
form a . local labor organization . It is also clear that Holdridge 's remarks and
the remarks of both Gaeckle and Rogues indicated strong opposition to the Union.
The presence of Trooien at such a meeting , together with his previous announce-
ment of the holding of the meeting , indicated management approval of the re-
ROBERTS & OAKEN INC. 505
marks made by the speakers at the meeting. ' Such conduct constituted assistance
to the Independent By the remarks of Stephenson, related above, the respond-
ent indicated opposition to the A. F of L. dui ing the period iii which the Inde-
pendent was in its formative stages. As the Board has said, "It is precisely
at the beginning of organization, and particularly when employees are unde-
cided as to the type of organization they desire, that `slight suggestions' by their
employer `have telling effect' upon the employees choice," Hatter of Springfield
Machine & Foioulrij Co., Inc., 48 N. L. R B. No. -. The Act unconditionally
prohibits employers from interfei ing with union activities. On the basis of
the entire record, the undersigned finds that the respondent company and the
respondent trustee through the activities of Stephenson in conjunction with the
activities of Trooien, rendered assistance to the Independent during its forma-
tive stages such assistance constituted interference, restraint, and coercion by
the respondent trustee and the respondent company of the employees in the
exercise of the rights guaranteed in Section 7 of the Act.'
In addition, by such assistance the respondent trustee and the respondent com-
pany have dominated and interfeied with the formation and administration
of the Independent and have contributed support thereto, within the meaning
of Section 8 (2) of the Act.
B. The discharges of Lawrence Bowman, and Louis Frager -
Lawrence Bowman was employed by the respondent trustee and respondent
company in October or November of 1942. , From the time that the respondent
trustee purchased the Madison plant, considerable construction had been carried
on under the direction of Gunderson . The construction work and repair work was
generally done by employees of the Company , at times when they were not en-
gaged in the killing and processing of hogs The record is clear that during such
periods as the plant was engaged solely in construction and repair work, the
employees enjoyed greater freedom in regard to their hours of work; that the
employees were free to work or not, as they chose. On the other' hand, the same
degree of freedom did not prevail during periods of ordinary production . Gunder-
son testified that, prior to the last week of December , there had been great diffi-
culty in obtaining sufficient employees to carry on the construction woik; that on
the Sunday preceding January 3 . 1943, he had , at some expense , obtained 7 or
8 mechanics from Chicago to come to the plant, and that due to the absence of
most of the employees , very little work was accomplished on that date ; that he had
decided as a result of that experience , in order to insure the presence of a sub-
stantial number of employees on January 3, to instruct Stephenson that the em-
ployees be told on ' Saturday , January 2, to be present on the following day inas-
much as they were to load out hogs that morning ; and that he further'in-
9 The respondents contend that the record fails to show that the conduct of Stephenson
and Trooien had any effect in fact upon the employees This contention is without merit.
The evidence shows membership in the Union iias in fact discouraged In any event,,it is
unnecessaiy to show that the proscribed conduct had its desired effect Rapid Roller'Co.
v. N. L. R "B, 126 F (2d) 4i2; N.'L R. B v John Engelhorn d Sons (C C. A. 3), March
1, 194;3, 12 LRR 54; N. L R B v. Aintree Corpoiatioii, (C. C A. 7) 132 F. (2d) 469':
Western Cartridge v. N L. R B, 134 F (2d) 240 (C C A. 7)
The record also shows that the supervisors of the respondent trustee and the respondent
company had, prior to the commission of the unfair labor practices herein, been instructed
to adopt an attitude of neutrality in reference to labor organization on the'part of the
employees Such instructions, nqt communicated to the employees, cannot insulate the
respondent against liability for unlawful conduct of supervisors contrary to such instruc-
tions North Carolina Finishinq Co. v N. L. R. B (C C. A 4) February 17, 1943, 12
LLR 20; Batter of Lexington Telephone Co 39 N L. R B 1130. Hatter of.4intree Corp
37 N L R. B 1174.
;506 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
structed Stephenson that any employee who failed to appear-without notification
or, reasonable excuse was to be discharged.
Trooien testified without contradiction, and''°the undersigned finds, that on the
evening of.January 2, he notified all of the employees that they were to be present
the next morning in order to load out hogs. Among the employees whom Trooien
notified were Lawrence Bowman and Louis Frager. According to, the testimony
of, Trooien, Bowman said nothing when informed that/he was to be present the
next morning, and Frager said, "All right." Bowman corroborated Trooien's
testimony that he was told to report the next morning in,order to load out hogs.
'Frager did not testify.
On the morning of January 3, neither Bowman nor Frager reported for work.
.On January 4, when Bowman reported for work he was told to see Stephenson.
Stephenson asked Bowman where he had been the preceding day Bowman
stated that he had been ill. Stephenson then discharged Bowman. Bowman tes-
tified that on the morning of January 3, he did not awaken until 10 o'clock;
that he was supposed to report for work at 6 a. in. and he knew it was too
late to report at that time. He stated that-he awoke with a cold; that he had
the "flu-headache." He admitted that on January 3 he did not notify anyone
at the plant of the reason for his absence from the plant; that he went to a
restaurant Sunday afternoon and that he attended the movies that evening.
While the record shows that absence from work without a previous request for
leave to be 'absent had not on every occasion been considered a serious offense in
the past, and while no warning was given that failure to report on January 3
would result in discharge, the undersigned is not convinced that Bowman's
union activity was the cause of his discharge. The Board contended that there
was disparate treatment as to both Bowman and Frager as contrasted with the
treatment of other individuals who were absent without previous permission, that
such disparity demonstrated that anti-union motivation was the cause of the dis-
charges. However, the record shows affirmatively that other individuals were
discharged for failure to report for work when requested to do so. No evidence
was'presenied indicating that any individual, absent from work without excuse
after a specific order to report the next day, was not discharged: On all the
evidence, the, undersigned finds that Bowman was discharged because he failed
to report for work pursuant to instructions on January 3, 1943y0
Louis Frager did not testify.11 Two weeks prior to January 3, according to the
,testimony of employee Noel Dingman, Stephenson'jokingly said to Frager, "Are
You the organizer of the A. F. of L in this country?" Frager replied, "No, why?"
According to Dingman, Stephenson then said, "I just thought you were." Stephen-,
son denied having such a conversation. The record shows that A. F. of 'L.
activity at the plant did not begin until December 27. Dingman -displayed a
very poor memory. Although-present at the January meeting, he was unable to
recall anything that was said. The undersigned, under the circumstances, does
not credit Dingman's testimony as to this conversation.
On January 3, Frager failed to report for work. On January 4, when Frager
reported for work, Schramer, pursuant to instructions from Stephenson, handed
"The respondent company and respondent trustee contend that they had no knowledge
of Bowman 's union of Nation at the time lie was discharged . Bowman testified , without
contradiction , that at the meeting of January 2, when Twedell's presence at the meeting
as questioned , he stood up and stated that Twedell Has at the meeting at his invitation.
Since Trooien was present throughout the meeting , it is fair to assume that Troolen
reasonably inferred that Bowman was a union partisan ." Even on the assumption that the
respondent had such knowledge , however, the undersigned is not convinced that Bowman's
'union activity played any substantial part in his discharge.
tt Counsel for the Board stated that Frager was employed in Portland, Oregon at the
time of the hearing, and was not available as a witness.
ROBERIS & OAKE, INC. 507
Frager his check. Stephenson testified that Frager was discharged because he
failed to report- for work and because of frequent absences and tardiness in
reporting for work. Under all the circumstances, the evidence fails to show
that Frager was discharged because of his, union membership and activity.
The respondent Chamber of Commerce
The record shows that all of the individuals who consulted Holdridge with
reference to the possibility of forestalling the A. F. of L. organizational drive
were members of the respondent Chamber of Commerce. Three of the seven
persons in that group were officers of the respondent Chamber of Commerce and
one person present was a director= Subsequently, Rogues, a member of the
Chamber, was instrumental in influencing Jacobson to hold an employees' meet-
ing on the evening of January 2. Gaeckle in his remarks at the meeting made
reference to a rumor concerning the Chamber of Commerce's activity in con-
nection with wages at the plant. Both Rognes and Holdridge, the other speakers
at the- meeting, were members of the Chamber. The Board contends that on
this state of the record the respondent Chamber may be held responsible for
the events of the meeting of January 2, the anti-union activities of Gaeckle,
Fredrickson, Dibble, and Parker in connection therewith, and the subsequent
formation of the independent. Such a contention is without merit. The un-
contradicted evidence shows that 95 percent of the business and professional men
in Madison were members of the Chamber at the time of the commission of the
alleged unfair labor practices. Under all the circumstances, in the opinion of
the undersigned, the evidence is insufficient to show that the anti-union activi-
ties of those individuals who were likewise members or officers or directors of
the Chamber are properly identified as activities of the Chamber. Assuming,
arguendo, that such activities may properly be classified as activities for which
the Chamber may fairly be held responsible, the record fails to show that the
Chamber had any official connection with or financial interest in the Roberts &
Oake plant, or any voice in the conduct of its business or labor relations, nor
does the evidence show that the Chamber was authorized to, or purported to,
act in behalf of the respondent trustee or the respondent company. Gaeckle
testified without contradiction and the undersigned finds that the group of
business and professional men who consulted Holdridge were actuated by a
desire for the benefit of the-community, to keep Madison free-of outside labor
organizations. 'In thus opposing the Union, on the totality of the circumstances
disclosed by the record, the Chamber was not acting in the interest of an em=
ployer, directly or indirectly, within the meaning of 'Section 2 (2) of the Act'.
'Accordingly, it is found that respondent 'Chamber is not an employer of the
employees at the Madison plant within the meaning of the Act:
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III above, occurring in
connection with the operations of the respondents 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
obstructing commerce and the free flow of commerce.
u Frederickson, president and director, Gaeckle, vice president and director , Dibble, secre-
tary and Parker,'a director.
508 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
V. THE REMEDY
Having found that the respondent company and respondent trustee have
engaged in certain unfair labor practices, the undersigned will recommend that
the aforesaid respondents cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the respondent company and the respondent trustee
have dominated and interfered with the formation and administration of and
contributed support to the Independent Its continued existence is a conse-
quent violation of the Act thwarting the purposes of the Act and rendering
ineffective a mere order to cease the unfair labor practices. This is true even
though the respondent company and the respondent trustee have not formally
recognized the Independent" as the collective bargaining representative of any
of their employees. In order to effectuate the policies of the Act and free the
employees from such domination and interference and the effects thereof which
constitute a continuing obstacle to the exercise by the employees of the, rights
guaranteed them by the Act, it will be recommended that the respondent com-
panyand the respondent trustee refrain from recognizing the Independent and
withhold all recognition from the Independent as the representative of the
employees for the purposes of dealing with the respondent company and the
respondent trustee concerning grievances, labor disputes, wages, rates of pay,
hours of employment, and conditions of work and to disestablish it as such
representative.
The undersigned has found that the discharges of Lawrence Bowman and
Louis Frager were not discriminatory. Accordingly, the undersigned will recom-
mend that the complaint be dismissed insofar as it alleges that Lawrence Bowman
and Louis Prager were discharged in violation of Section 8 (3) of the Act.
The undersigned has found that the respondent Chamber of Commerce has
not engaged in unfair labor practices within the meaning of Section 8 (1), (2)`,
and (3) of the Act. It will therefore be recommended that the complaint be
dismissed as to the respondent Chamber of Commerce -
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
,CONCLUSIONS OF LAW
1. -Amalgamated Meat Cutters and Butcher Workmen of -North - America,
A. F. of L., and Madison Independent Meat Packers Union, are labor organiza-
tions, within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondent company
and the respondent trustee have engaged in and are engaging in unfair labor
practices, within the meaning of Section 8 (1) of the Act.
3. By dominating and interfering with the formation and administration of
Madison Independent Meat Packers Union and by contributing support thereto
the respondent company and the respondent trustee have engaged in and are
engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act
4. The respondent trustee is an employer, within the meaning of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within "the meaning of Section 2 (6) and (7) of the Act.
6. The respondents, by discharging-Lawrence Bowman and Louis Frager and
by refusing to reinstate them, have not engaged in unfair labor practices, within
the meaning of Section 8 (3) of the Act.
7. The respondent Chamber of Commerce is not an employer, within the
meaning of the Act
ROBERTS & OAKE, INC. 509
8. The respondent Chamber, of Commerce has not engaged in unfair labor
practices as alleged in the complaint herein, within the meaning of the Act.
RECOMMENDATIONS -
Upon the basis of the above findings of fact and conclusions of law, the under-
signed' recommends that the respondent trustee, James P. Carey, Jr., and the
respondent company, Roberts & Oake, Inc., their officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Madison Inde-
pendent Meat Packers Union, or with the formation or administration of any,
other labor organization of their employees or contributing support to Madison
Independent Meat Packers Union or to any other labor organization of their
employees ;
(b) In any other manner interfering with, restraining, or coercing their
employees in the exercise of the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section 7 of
the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Withhold all recognition from Madison Independent Meat Packers Union
as the representative of any of their employees for the purposes of dealing with
the respondent company and the respondent trustee concerning grievances, labor
disputes, rates of pay, wages, hours of employment, and other conditions of
employment and completely disestablish Madison Independent Meat Packers
Union as such representative ;
(b) Post immediately in conspicuous places at the plant in Madison, South
Dakota, and maintain for a period of at least -sixty (60) consecutive days from
the date of posting, notices to their employees stating: (1) that the respondent
company and the respondent trustee will not engage in the conduct from which
it is recommended that they cease and desist in paragraph 1 (a) and (b) of
these recommendations; and (2) that the respondent company and the re-
spondent trustee will take the affirmative action set forth in paragraph 2 (a) of
these recommendations ;
(c) Notify the Regional Director for the Eighteenth Region (Minneapolis,
Minnesota) in writing within ten (10) (lays from the receipt of this Inter-
mediate-Report, what steps the respondent company and the respondent trustee
have taken to comply herewith.
It is further recommended that the complaint be dismissed, insofar as it
alleges that the respondents, by discharging Lawrence Bowman and Louis
Frager, have engaged in unfair labor practices within the meaning of Section
8 (3) of the Act.
It is further recommended that the complaint be dismissed , insofar as it
alleges that the respondent Chamber of Commerce has engaged in unfair labor
practices within the meaning of Section 8 (1), (2) and (3) of the Act.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent trustee and the respondent
company notify said Regional Director in writing that they will comply with
the foregoing recommendations, the National Labor Relations Board issue, an
order requiring them to take the action aforesaid.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As' provided in Section 33 of Article II of the Rules and Regulations bf the
National Labor Relations Board, series 2-as amended, effective October 28,
1942,-any party may within fifteen (15) days from the date of the entry of
the order transferring the case to the Board , pursuant to Section 32 of Article II
of said Rules and Regulations , file with the Board, Shoreham Building , Washing-
ion,/D . C. an original and four copies of a statement in writing settingoforth
such exceptions to the Intermediate Report or . to any other part of the record
or proceeding ( including rulings upon all motions or objections ) as he relies upon,
together with the original and four copies of a brief in support thereof. As
further provided in said Section 33 , should any party desire permission to argue
orally before the Board , request therefor must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to the
Board.
BERNARD CUSHMAN,
Trial Examiner.
Dated April 9, 1943.
I
1