Twin City Milk Producers Association

National Labor Relations Board - Board Decisions

Mar 28, 1945

61 N.L.R.B. 69 (N.L.R.B. 1945)

In the Matter of TWIN CITY MILK PRODUCERS ASSOCIATION and MILK
DRIVERS AND DAIRY EMPLOYEES UNION, LOCAL 471, HAULERS' DIVI-
SION, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR
Case No. 18-C-1032.-Decided March 28, 1945
Mr. Clarence A. Meter, for the Board.
Mr. R. O. Sullivan, of St. Paul, Minn., for the respondent.
Messrs. Gene Larson and J. J. Cremers, of Minneapolis, Minn., for
the Union.
Mrs. Catherine W. Goldman, of counsel to the Board.
DECISION
AND
'ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on April 6,1944, by Milk Drivers
and Dairy Employees Union, Local 471, Haulers' Division, affiliated
with the American Federation of Labor, herein called the Union, the
National Labor Relations Board, herein called the Board, by its
Regional Director for the Eighteenth Region (Minneapolis, Minne-
sota), issued its complaint dated May 3, 1944, against Twin City Milk
Producers Association, St. Paul, Minnesota, herein called the respond-
ent, alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the com-
plaint, accompanied by notices of hearing thereon, were duly served
upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged in
substance that the respondent : (1) from about February 7, 1944, by
its officers, agents, and supervisory employees, questioned its employees
concerning their union membership and activity; disparaged and ex-
pressed disapproval of the Union; advised, urged, and warned its
employees to refrain from assisting or becoming members of the
Union; and advised and warned its employees that if they joined the
Union, operations of the plant would be curtailed; (2) on or about Feb-
61 N. L. R. B., No. 7.
69
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ruary 17 and 21, 1944, and at all times thereafter, refused to bargain
collectively with the Union, which was at all times the exclusive rep-
resentative of its employees within an appropriate unit; and (3) by
such acts interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act. On May 15,
1944, the respondent filed its answer, admitting certain allegations of
the complaint with respect to its business and denying all material
averments relating to the unfair labor practices.
Pursuant to notice, a hearing was held at Elk River, Minnesota,
on May 15 and 16, 1944, before W. P. Webb, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the re-
spondent were represented by counsel, and the Union by its repre-
sentatives. All parties participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues, was afforded all parties.
At the conclusion of the hearing, counsel for the Board moved to
conform the pleadings-to the proof in respect to minor inaccuracies
as to dates and spelling of names and-other matters not related to
the fundamental issues. The motion was granted by the Trial Ex-
aminer without objection. Rulings on other motions and on the ad-
missibility of evidence were made by the Trial Examiner during the
course of the hearing. The Board has reviewed all the rulings of
the Trial Examiner and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The opportunity to pre-
sent oral argument before the Trial Examiner at the close of the hear-
ing was waived by the parties. On May 29, 1944, counsel for the
respondent and counsel for the Board submitted briefs to the Trial
Examiner.
On September 4, 1944, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent and
the Union. In the Intermediate Report the Trial Examiner found
that the respondent had engaged in and was engaging in unfair labor
practices within the meaning of Section 8 (1) and Section 2 (6) and,
(7) of the Act, and recommended that the respondent cease and desist
therefrom and take certain affirmative action designed to effectuate
the policies of the Act. He further recommended that the complaint
be dismissed insofar as it alleged that the respondent had violated
Section 8 (5) of the Act. Thereafter, the respondent and counsel
for the Board filed exceptions to the Intermediate Report. No re-
quest for oral argument before the Board at Washington, D. C., was
made by any of the parties.
The Board has considered the Intermediate Report, the exceptions
filed by the parties, and the entire record in the case, and finds that
the exceptions are without merit insofar as they are inconsistent with
the findings of fact, conclusions of law, and order set forth below.
TWIN CITY MILK PRODUCERS ASSOCIATION 71
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Twin City Milk Producers Association, a Minnesota corporation
with its principal office and place of business in St. Paul, Minnesota,
is a cooperative marketing association engaged in the manufacture
of butter, cheese, skim milk, dry milk powder, and other dairy
products. It operates 11 plants located in and around Minneapolis.
Its plant at Elk River, Minnesota, which is about 30 miles from Min-
neapolis, is the only plant involved in this proceeding. The respon-
dent purchases its raw milk from its members pursuant to a contract
with them. The members, about 7,000 farmers, reside within a radius
of approximately 40 miles of St. Paul and Minneapolis, Minnesota.
The respondent is not under contract to supply its products to the
United States Government, but it is subject to a "set-aside order,"
under which all milk powder produced by it must be tendered to the
Government before it can be sold through private commercial chan-
nels. The butter produced by the respondent is marketed through
the Land-O-Lakes Creameries, Inc., a cooperative marketing associa-
tion of which the respondent is a member. During the period from
July 1, to December 31, 1943, the respondent produced at its Elk
River plant about 260,000 pounds of dry milk powder valued at
$33,346, of which about 98 percent was sold outside the State of Min-
nesota. The total sales of the Elk River plant during this period
amounted to approximately $436,628.59 in value, of which about 7.47
percent was sold outside the State. During the same 6 months, the
respondent purchased supplies, for the Elk River plant, valued at
approximately $7,519.81, of which about 18.26 percent was shipped
to it from outside Minnesota.
We find that the respondent is engaged in commerce within the
meaning of the Act.'
II. THE ORGANIZATION INVOLVED
Milk Drivers and Dairy Employees Union, Local 471, Haulers'
Division, affiliated with the American Federation of Labor, is a labor
organization admitting to membership employees of the respondent.
i we also find without merit the respondent's contention that the Board is precluded
from asserting jurisdiction because of election proceedings commenced pursuant to the
Minnesota State Labor Relations Act prior to the filing of charges before the Board. Under
Section 10 (a) of the Act, the Board is granted exclusive power to prevent any person
from engaging in specified unfair labor practices affecting commerce.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The refusal to bargain; interference, restraint, and coercion
1. The appropriate unit
We find, in accordance with a stipulation of the parties, that all
production alid maintenance employees of the respondent at its Elk
River plant, excluding supervisory employees,2 office and clerical em-
ployees, and truck drivers, at all times material herein, constituted,
and now constitute, a unit appropriate for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and that such unit insures to the
employees of the respondent the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuates
the policies of the Act.
2. Representation by the Union of a majority in
the appropriate unit
On February 7, 1944, there were 21 employees within the above-
found appropriate unit; and on February 10, 1944, there were 24
employees in the unit. On February 7,1944,13 of the employees with-
in the unit signed authorization cards designating the Union as their
collective bargaining representatives; 3 and on February 8, 1944, 3
additional employees within the unit. signed authorization cards.
We find that on February 7, 1944, and at all times thereafter, the
Union was the duly designated representative of a majority of the em-
ployees in the aforesaid appropriate unit, and that, pursuant to Sec-
tion 9 (a) of the Act, the Union was on that date and at all times there-
after, and is now, the exclusive representative of all the employees
in the aforesaid unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and other condi-
tions of employment.
^. Sequence of events
The Union's organizational campaign at the Elk River plant began
on February 7, 1944, when Union Representatives Gene Larson and
J. J. Cremers met with 16 of the respondent's employees. On that
2 The parties are in disagreement concerning the supervisory status of Chief Engineer
Maurice Tiernan, the respondent contending that he is not a supervisory employee, and
the Union , that he is . For reasons hereinafter stated, we find that Tiernan is a super-
visory employee and, as such , should be excluded from the unit.
3 The authorization cards designated International Brotherhood of Teamsters , Chauffeurs,
Warehousemen , and Helpers as the bargaining agent. This is the parent organization of
the Union.
TWIN CITY MILK PRODUCERS ASSOCIATION 73
date 13 of the employees signed authorization cards designating the
Union as their collective bargaining representative, and Larson sent a
telegram to H. L. Leonard, the respondent's general manager, advising
him that the respondent's employees at the Elk River plant had joined
the Union and had instructed the Union to proceed with bargaining
negotiations.4 When 'the Union received no reply to this telegram,
Cremers wrote a letter to Leonard on February 12, enclosing a pro-
posed contract which he informed Leonard had been approved by the
employees and requesting Leonard to set a time for meeting with the
union representatives during the forepart of the week of February 14
"for the purpose of carrying on negotiations." 5 Again the Union
received no reply to its communication. On February 17, Cremers
telephoned to Manager Leonard, who then acknowledged receipt of
the letter and suggested that a conference be held on February 21.
On the afternoon of February 17, following his conversation with
Cremers, Leonard, whose office was located in St. Paul, went to the
Elk River plant where he called a meeting of all employees during
working hours. No similar meeting had been held in 16 years. Ac-
cording to the uncontradicted testimony of employees Joe Schwab
and Robert Patenaude, whom we credit, they had completed their
work shifts early in the afternoon but were requested by Plant Man-
ager H. J. Twetten to return to the plant to attend the meeting which
was conducted about 4 o'clock. Twetten asked Patenaude to return
in order to hear the respondent's "side of the story." Employee Erwin
Eull also credibly testified, without contradiction, that he was told
about the meeting by Twetten. In the presence of Houlton, the
respondent's vice president, and Chyst, a member of the respondent's
managerial staff, Leonard read to the assembled employees the fol-
lowing prepared statement :
"Before proceeding with my remarks, I must explain why I am
reading this prepared statement rather than discussing informally
with you what I have to say on the situation that has developed from
Mr. Cremer's proposal of a labor contract covering the employees
4 The full text of the telegram was as follows, °
"Be addised that your employees at Elk River plant have joined Milk Haulers Section
Local 471, Minneapolis , and instructed us to proceed with negotiations . A proposed con-
tract will be mailed to you in a few days . In the interest of continued good relations
between your company and Local 471 may I suggest you instruct your Elk River manager
to not in any way intimidate your employees for having joined our organization "
We find that this constituted , and was regarded by the respondent as, a claim of majority
representation . The respondent makes no contention to the contrary.
6 The letter stated :
"We are herewith submitting to you a proposed contract covering wages and working
conditions of your employees at the Elk River, Minnesota , Plant. This contract has been
approved by your employees at the above-named plant In order to have an early com-
pletion of negotiations , we request that you meet with us sometime the forepart of the
week of February 14 for the purpose of carrying on negotiations , and we would appreciate
your naming the time of the meeting "
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this plant. - Under the law I, as a representative of your employer,
must refrain from making any statements or doing anything which
could reasonably be interpreted as encouraging or discouraging
membership in any labor organization or discriminating in favor of
or against any-employe holding membership in any labor organiza-
tion. Accordingly, so as not to be misunderstood or misquoted, I
am forced to confine my remarks to this prepared statement.
"Perhaps one of the first questions that should be considered is
what about after the war? What about your job? What about our
obligations under the law and under the proposed contract? Basically,
the proposed contract follows the provisions of the Selective Service
Act, which in substance provides that a private employer `shall restore
such person (soldier,' sailor, marine, etc.) to such position or to a
position of like seniority, status, and pay (within forty days after
discharge from service) unless the employer's circumstances have so
changed as to make it impossible or unreasonable to do so.'
"This does not present a serious question so far as your jobs at Elk
River are concerned, as only three men so far would be affected by
this provision, and with our usual turnover in help these men could
work in very nicely when they return from Service, which we hope
and pray will be real soon. So we can pass that question.
"The next question goes to the entire contract submitted by Mr.
Cremer, who claims the contract has been submitted to and approved
by those of you who have joined the Union. This contract is much
like the one prevailing in Minneapolis, but so far as we know, it ap-
plies only to plants engaged in the retail milk business in that city,
or the territory immediately surrounding it, which we believe in-
cludes Delano where a company has eight milk wagons on the streets
in Minneapolis, and possibly Watertown where there is a bottling
machine and the headquarters of the Dairy Fresh Creameries of
Minneapolis.
"That type of operation is far different from that conducted here
at Elk River which, as you know, is a manufacturing plant similar
to others operating throughout Minnesota producing dairy, products
such as we manufacture here. Our competition here is any creamery
in Minnesota or Wisconsin that can make butter, sweet cream, powder
and other manufactured dairy products and compete with us in our
market. Our competitor is not the retail milk dealer operating in
Minneapolis.
"Typical of this is the proposal in Mr. Cremer's contract that a
vacation of four weeks with pay be granted employees. This, pro-
posal is so different from the practice prevailing in other creameries
that we know of, operating in Minnesota, that it must be clear to
TWIN CITY MILK PRODUCERS ASSOCIATION 75
you that this.will put our Association at a distinct disadvantage in
competing with creameries having paid vacations of but one or two
weeks at best.
"There are other provisions in the proposed contract which will have
pretty. much the same effect, such as the provision requiring new
employes after a certain period to join the Union if they want to con-
tinue on the job, requiring temporary or seasonal help to obtain
a card from the Union permitting them to work, and requiring each
employe who joins the Union to continue as a member if he wants
to continue working in this plant.
"Weekly pay periods would put us at a further disadvantage with
other creameries.
"In making these comments on the contract, do not get the impres-
sion that we are, denying your right to propose these changes in the
working conditions of the plant. We recognize full well your right
to make these proposals through bargaining representatives chosen
by a majority of the employees in 'the plant or by direct negotiation
with Mr. Twetten, or myself, or in any other manner that you choose
to follow. However, we DO think it is just as much to your ad-
vantage, as it is to ours, for you not to do anything or demand some-
thing which will put this plant in a position where it cannot meet
its competition, as that would result in a situation which would be
bad for all of us. In short, any contract proposals that are made by
you or by management must be consistent with the operating factors
in the Industry; otherwise, we are placed at a competitive disadvan-
tage which, if long continued, will have a marked effect on our oper-
ations and on your jobs.
"The matter of wages and hours is always of interest to any em-
ploye. I want to talk about that a little. Long before Mr. Cremer
wrote us about any contract, we had been considering putting all of
the Association's plants on the basis of a 40-hour workweek with time
and one-half for over forty hours, but since this would affect the com-
pensation of the employes involved it was necessary for us to pre-
sent the matter to the War Labor Board. As you perhaps know,
that Board will not let us increase wages by merely reducing the work-
week and maintaining the same salary basis, although it might be
willing to let us maintain the same hourly rate on a 40-hour work-
week and pay time and one-half for all overtime over forty hours a
week and then let us work a 48-hour week. If this should be done,
it would amount to an 81/3 percent increase in wages to those em-
ployees who then work forty-eight hours per week.
"We are not suggesting this as a counter-proposal to Mr. Creiner's
contract, but merely to point out that the entire subject of wages and
hours has been given careful study and thought long before that con-
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract was ever heard of, and, most important of all , to acquaint you
with the necessity of having any wage increase or reduction in hours
cleared by the War Labor Board before it can be put into effect.
"Just to show you how strict that Board is in matters of this kind,
the men in our Saint Paul plant, who are members of the Saint Paul
Milk Wagon Drivers Union , did not obtain the $10 raise given em-
ployes in the country plants. Accordingly, we agreed with the Union
when their contract expired we would grant a similar raise to these
employes of the Saint Paul plant and would join with the Union in
submitting this increase to the War Labor Board. On September 11,
1943, this was done but as yet no approval has been received from the
War Labor Board, and , because of the penalties imposed for violation,
we cannot pay the $10 raise to our men until we get the approval re-
quested.
"Regarding this whole subject of wages paid in other dairy plants
operating in Minnesota , similar to that at Elk River, we have studied
the wage scales prevailing in those plants and find that our average
wage scale is above that in these other plants. If we are to cover our
relations with you by written contract , then we will be guided by
the contracts in force in these other plants which are competitive with
the Elk River Plant and take into consideration the basic wage rate,
workweek, etc., that prevail in these other plants operated in coun-
try areas . Some of these plants , such as Litchfield, Waconia, Roches-
ter, Rush City and the Northfield Condensery, now have Union con-
tracts which we undoubtedly could get and take into consideration.
"If we should get clearance and place our plant operations on a basis
of a 40-hour workweek , that would place our wage scale that much
further beyond that paid by the ordinary creamery . The entire
subject of a 40-hour workweek with time and one-half above the 40
hours is now being discussed by us with the local office of the Wage-
Hour Division . We met them with our attorney on December 23,
1943, and a few days later had another meeting with them, which
resulted in their suggestion that we take until March 1 to consider
the whole situation that would develop from placing our plants on a
40-hour workweek basis and then let them know what we decide to
do about it.
"We want you men to know that this whole subject is being given
careful consideration by our management and that as a result your
`carry home pay' may be raised as much as eight percent. At the
same time , we want you to know that there is no assurance that we can
carry out the proposal to place this plant and the others on a 40-hour
workweek basis, as it depends to a large degree upon obtaining ap-
proval from the War Labor Board, and that is just as true with Union
contract as without one, as shown by our Saint Paul experience. So,
TWIN CITY MILK PRODUCERS ASSOCIATION 77
when we are considering this problem, let us all remember that wage
increases are not just a matter of agreement between us, but must
finally clear the War Labor Board and obtain its approval.
"There is still another matter in the contract proposed by Mr. Cremer
which is very vital to us and we believe vital to each one of you, namely,
the creation of a `closed shop' in this plant. A `closed shop', as we
understand it, means that no one can be employed here unless he is a
member of the particular union or has a card from the Union permit-
ting him to work in the plant. This is not the first time this provision
has been presented to the 51 farmers who constitute our Board of
Directors. The Board is unalterably opposed to this `closed shop'
idea. They have passed a resolution instructing our officers not to sign
ally contract containing a `closed shop' clause, because they claim
that every man in our employ should have the right to join a Union or
not to join a Union, as he sees fit, and that this organization can do
nothing contrary to the basic idea that the American workman need
not pay dues, initiation fees or any other monetary consideration to
anyone for the privilege of getting or holding a job.
"At the same time, it is the established principle of this organization
not to play any favorites because any employe joins or refrains from
joining any Union. Each employe is to be treated exactly the same
as the next in that respect, so that no employe, whether he belongs to
a union or not, will be discriminated against by this Association as his
employer merely because he does or does not hold membership in a
labor organization. These instructions have gone out to all of our
Plant Managers as a fundamental employment policy of this Associa-
tion. Our Board feels very definitely that this is one of the freedoms
for which we are fighting a war, and is as equally true at home as it is
abroad.
"I need not remind you that we in the food industry are in a very
serious war emergency. Our first consideration should be to try to
get along as employers and employes, so that working together we can
continue to produce the greatest possible amount of food and keep our
relationship on a basis of friendship and understanding not only dur-
ing the war emergency but beyond. Any other situation would be
most unfair to our fighting men and undermine the very thing they
are fighting for.
"One further thing remains for discussion, namely, our meeting with
a representative selected by a majority of the employes in this plant.
In doing this we do not wish to ignore such of the employes who have
not had a voice in selecting those representatives or have noted [sic]
against their selection. By law, we are required to meet with the
representative selected by the majority of the plant employes as their
bargaining representative, but under that same law we as the employer
639678-45-vol. 61-7
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must be reasonably satisfied that a majority in the particular plant
have actually designated a certain person or organization as their bar-
gaining representative.
"Unless we are reasonably satisfied that the claim of representation
is sustained , under the State law we cannot enter into negotiations
with the bargaining representatives , because if they do not represent
a majority of the employes we would then be violating the law. Ac-
cordingly , if occasion requires , the employer can petition the Labor
Conciliator of this State to investigate the bargaining representative
to determine by a supervised vote of the employes involved , voting by
secret ballot , that they have selected or designated a certain person or
organization as their bargaining representative.
"For your information such elections are by secret ballot, so that you
can record your vote without fear or favor. You have the right to
vote in accordance with your own desires , regardless of whether or not
you then belong to any group , or whether you have signed an applica-
tion card , authorization , or anything else with any Union or other
organization.
"The theory is that the will of the majority of the employes of the
plant must govern. But, in passing , permit me to say that under the
democratic theory that the will of the majority controls , there 'is the
companion principle that the majority when acting as such must at all.
times recognize and respect the rights of the minority . If it be prop-
erly determined that Mr. Cremer or the labor organization he repre-
sents has been properly selected as the bargaining representative for a
majority of the employes in this plant , the Association will certainly
meet with them and endeavor to negotiate a `labor contract.' In
doing this, we will be but continuing the most friendly relations we
have had with all our employes and which we hope will long continue.
If it be determined that no bargaining representative has been selected,
we will continue as we have before to meet with any employe or group
of employes at any time to discuss any matter regarding their employ-
ment or our operation of this plant . We feel certain that Mr. Twetten,
the Manager , has the confidence of each one of you and that you all
feel perfectly free to discuss any matter with him at any time. This
is as it should be. -
"In closing, let me say this one thing further : Whatever you decide
to do in connection with Mr.' Cremer , or the labor organization he
represents , we, as your employer will try to work with you or your
representatives in a spirit of full cooperation just as far as we can do
so, having in mind that , as your employer , we have certain rights,
obligations and duties to the farmers who own and operate this
Association.
"I want to thank each of you for giving me this opportunity to pre-
dent our views to you on these various matters in which we both have
TWIN CITY MILK PRODUCERS ASSOCIATION 79
considerable at stake, and I want you to know that I appreciate the
attention you have given me while I read this statement."
At the close of the speech, which lasted about a half hour, Leonard
asked the employees if they had any questions. It appears that one
question was asked, and the employees then returned to their work.
During the period between the Union's organizational meeting of
February 7 and the scheduled bargaining conference of February 21,
Plant Manager Twetten and Chief Engineer Maurice Tiernan, super-
visory employees whose conduct is attributable to the respondent,'
spoke to individual employees about the Union and its possible ad-
verse effect on their working conditions. According to the undenied
testimony of employee Robert Patenaude, whom we credit as did the
Trial Examiner, Tiernan spoke to him several times about the Union
in February 1944. On one occasion during the week following the
first union meeting, Tiernan warned Patenaude that if the Union
came into the plant the employees would be laid off during the slack
season 7 and the milk hauled to another plant. During that week
Manager Twetten informed Patenaude that he would receive a 2-cent
per hour wage raises In other conversations, which usually occurred
after union meetings, Tiernan questioned Patenaude concerning the
attendance and happenings at the meetings.
The undenied testimony of employee Joe Schwab, which we credit
as did the Trial Examiner, discloses that although the employees had
been working 7 days a week since January 1944, on Saturday, Feb-
ruary 12, Tiernan directed Schwab not to report to work on the fol- ,
lowing day, stating that if "the boys" were going into the Union, they
would not work overtime. Thereafter, Schwab worked only 6 days
a week. Employee Eull credibly testified that he was told in Feb-
ruary that he would work only 6 days a week instead of 7 as he had
been. Employee Patenaude also credibly testified that he "never
We are unable to accept the respondent's contention that Tiernan is not a supervisory
employee for whose conduct the respondent is responsible. Tiernan bears the title of chief
engineer and is the only employee in the plant holding a chief engineer 's license. He is
responsible for the operation of the boiler room ; sets the duties and hours of work of
First-Class Engineers Joe Schwab and John Dale ; approves their requests for leave ;
and tells them whether they should work overtime. He also directs the work of laborer
Edward Belanger who acts as his assistant on maintenance and repair work. Tiernan
receives a higher rate of pay than do the three employees who work under his direction.
Moreover, the record reveals that after Tiernan obtained his license as chief engineer in
June 1943, Chryst, a member of the respondent's managerial staff, told employee Schwab
that Tiernan would be his "boss." Other employees also regarded him as a "boss." We
find that Tiernan is a supervisory employee ; that he was held out to, and reasonably
regarded by, the employees as a representative of management ; and that his conduct is
attributable to the respondent.
7 According to the credible and undisputed testimony of Patenaude, who at that time
had been employed by the respondent since April 1942, it was not customary for employees
to be laid off during the slack season.
8 The raise was given to Patenaude on March 5, 1944, and was made retroactive to
February 1. The respondent offered no explanation as to the reason for the raise or
concerning any custom or practice to give raises
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had a regular day off until joining the Union." The respondent
offered no explanation for this change in hours.
The undenied and credible testimony of employee Erwin Eull re-
veals that about the middle of February 1944, Chief Engineer Tiernan
requested Eull to stop by after work. When Eull appeared in re-
sponse to this summons, Tiernan asked Eull what he thought of the
Union ; stated that it would be a good idea if the employees would
'`just stick together" the way they had been working; cautioned- Eull
that if the Union were successful in organizing the plant, a time clock
would be installed and half of the employes would be laid off in the
slack season; and stated that he had "been around" more than Eull
and could give Eull some advice.
About February '19, 1944, Manager Twetten asked employee War-
ren Brown what he thought of the Union. Brown replied that he
did not know much about it and asked Twetten if he thought the
plant would be unionized. Twetten answered that he thought it
would some day, but that "right now they [the respondent] wasn't
really ready to deal with the Union."
On February 21, 1944, the scheduled bargaining conference was held
at the respondent's St. Paul office. The respondent was represented
by W. S. Moscrip, president; S. M. Houlton, vice president; Fred
Roche, secretary-treasurer; A. T. Frank, member of the Executive
Committee ; and General Manager Leonard. The Union was repre-
sented by Larson and Cremers. The meeting lasted about 40 minutes,
and the Union's proposed contract was briefly discussed. Moscrip
stated that the respondent would not accept the contract, which it
considered unsuitable for a rural plant such as the one at Elk River.
The provisions concerning wages, hours, vacations, and union security
were mentioned, and Moscrip informed the union representatives that
the respondent would never agree to a closed shop and could not pay
the wages nor grant the vacations outlined in the contract. Larson
pointed out that the terms were "negotiable and subject-to adjust-
ment." Moscrip, however, offered no counterproposals. Instead, he
then, for the first time, questioned the Union's authority to represent
the employees at the Elk River plant. Larson suggested that the
Union's majority status be determined by submitting its authorization
cards for examination to a neutral party and a handwriting expert,
but Moscrip insisted that it be determined by an election. The Union
submitted to the respondent's request, and an unsuccessful attempt
was made to communicate with the State Labor Conciliator, under
whose auspices. an election could be held. After some discussion in
regard to expediting the conduct of the election, the conference was
The findings in this paragraph are based upon the uncontradicted and credible testimony
of Brown.
TWIN CITY MILK PRODUCERS ASSOCIATION 81
adjourned with the understanding that negotiations would be 'sus-
pended until the Union's majority was established by the election.
Larson and Cremers then went to the union office where Larson again
telephoned to the State Labor Conciliator and requested him to ar-
range a consent election."
On February 25, 1944, Union Representative Cremers and the re-
spondent's president, Moscrip, met with the State Labor Conciliator
in the latter's office in St. Paul for the purpose of executing a consent
election agreement. There was no controversy concerning the appro-
priate unit, but the parties were in disagreement with respect to the
eligibility date for voting in the election. Cremers contended that
February 7 should be used to determine eligibility; Moscrip contended
that February 14 should be used." Cremers finally agreed to the date
proposed by Moscrip. The consent election agreement was not signed,
however, because Moscrip stated that he could not do so until it was
approved by the respondent's Executive Committee. So far as the
record shows, no action was taken thereon by the Executive Commit-
tee; and the instrument was never executed. In fact, the Union re-
ceived no further communication from Moscrip or any other repre-
sentative of the respondent.
On February 28, 1944, the Union filed a petition under the State
Labor Act, requesting an investigation and certification of representa-
tives of employees at the Elk River plant. On March 14, 1944, the
State Labor Conciliator conducted a hearing as to the appropriate
date for determining eligibility and fixed it as February 9. On March
20, an election was ordered to be held on March 24. Meanwhile, the
Union, having learned of the speech delivered by General Manager
Leonard to the employees at the Elk River plant, filed charges of
unfair labor practices with the Board on March 22. Thereupon, the
State Labor Conciliator postponed the election indefinitely.
On March 23, the day before the election was scheduled to be held,
Chief Engineer Tiernan repeated to employee Joe Schwab the warning
which he had previously given to employees Patenaude and Eull that
if the employees joined the Union, they would be laid off during the
slack season and the milk would be hauled to another plant.12
Sometime in March, following the posting in the plant of a notice
postponing the election, employee Warren Brown spoke to Plant
Manager Twetten concerning the postponement. At that time, ac-
cording to the undisputed testimony of Brown, whom we credit as
10 This discussion of the bargaining conference of February 21 is based upon the credible
and undisputed testimony of Larson and Cremers . The respondent 's representatives at
the meeting did not testify at the hearing.
11 The respondent had -hired three new employees within the appropriate unit on
February 10.
12 This finding is based upon the credible and undenied testimony of Schwab.
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did the Trial Examiner, Twetten informed him that he did not have
to join the Union in order to get a raise in pay.
4. Conclusions
(a) Interference, restraint, and coercion
'Upon the facts here disclosed the respondent has engaged in a
coercive course of conduct designed to defeat the self-organization
of the employees at its Elk River plant. Ignoring the Union's plea
in its telegram of February 7, 1944, to General Manager Leonard
that he inform the manager at the Elk River plant not to intimidate
the employees for having joined the Union, the respondent began its
anti-union campaign immediately thereafter. Plant Manager Twet-
ten and Chief Engineer Tiernan indicated to the employees the re-
spondent's hostility to the Union and intimated that economic re-
prisals would result from organization of the plant. Thus, Tiernan
interrogated Patenaude and Eull concerning- the Union; warned
Patenaude, Eull, and Schwab that employes would be laid off during
the slack season, contrary to the respondent's prior custom, if the
Union succeeded in organizing the plant; cautioned Eull that a time
clock would be installed if the plant were organized; threatened
Schwab with abolition of overtime work if the employees joined the
Union, and implemented this threat by, in fact, not permitting em-
ployees to work overtime. Twetten impressed upon Brown the
futility of union organization by telling him that the respondent was
not yet ready to deal with the Union and advising him that he did
not have to join the Union in order to obtain a wage increase. Dur-
ing this period employe Patenaude was, in fact, granted a wage in-
crease which Manager Twetten had promised him shortly after the
Union's organizational meeting. We find that the foregoing activi-
ties of Tiernan and Twetten constituted interference, restraint, and
coercion, within the meaning of the Act. Since these activities were
coerciye, they were not privileged under the Constitution as the re-
spondent contends.
On February 17, 1944, General Manager Leonard made more evi-
dent to the employees the respondent's opposition to the Union. Al-
though he was previously informed that the employees had already
selected the Union as their collective bargaining representative and
had approved the proposed contract which the Union had submitted
as a basis for negotiations, General Manager Leonard, before the
scheduled meeting with the union representatives to discuss the terms
of the proposed contract, had the employees assembled at the plant
during working hours for the express purpose of discussing the terms
of the Union's proposed contract. After paying lip service to the
c
TWIN CITY MILK PRODUCERS ASSOCIATION '83
statutory mandate that he refrain from discriminating against em-
ployees because of their union membership, Leonard discussed the
specific provisions of the contracl and pointed out the probable com-
petitive disadvantage to the respondent's business and the consequent
undesirable effect upon the employees' terms and conditions of em-
ployment which would result from the execution of such a contract.
He categorically stated that the respondent was "unalterably op-
posed" to a closed shop and would sign no contract containing such a
clause. Instead, he promised what amounted to about an 8-percent
wage increase subject to approval of the War Labor Board and the
Wage and Hour Division. Despite Leonard's bland observation to the
employees that this was not being suggested as a counterproposal to
the Union's proposals, the employees could not help but so regard it.
Viewed realistically in the setting in which it was made, we find that,
the promise of an 8-percent wage increase constituted a counter-
proposal to the Union's proposals and was so intended and regarded.
Pointing out that the respondent's average wage scale was higher than
that in other comparable plants, Leonard threatened to adopt a lower
wage scale if a contract with the Union were executed, because in
that event he stated that the respondent would be guided by the lower
wage scales prevailing in competitive plants which had contracts
with labor organizations. Without having previously questioned
the Union's majority representation claim and without informing the
employees of the meeting with the Union scheduled for February 21,
Leonard concluded his speech by discussing the Minnesota State
Labor Law with its election procedure, the implication of which was
that the employees would be given an opportunity to decide whether
,they wanted the Union and Representative Cremers to represent
them.
We find no merit in the respondent's contention that Leonard's
speech is privileged under the constitutional guarantee of free speech.
In this speech the respondent ignored the Union as the employees'
exclusive bargaining representative and dealt directly with the em-
ployees concerning wages, hours, and working conditions at a time
when negotiations on these subjects were pending with the Union.
Such conduct is a direct violation of Section 8 (1) of the Act.
Furthermore, Leonard's threat of economic reprisals against the em-
ployees by adopting a lower wage scale in the event of the execution
of a contract with the Union, in itself constituted interference, re-
straint, and coercion within the meaning of. the Act. Delivered in
a setting where the listeners were economically dependent upon, and
compelled to give heed to, the speaker, the whole tenor of the speech
was to coerce the, employees into repudiating the Union which had
already been selected by them as their exclusive bargaining repre-
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative and the proposed contract which they had previously ap-
proved and concerning which negotiations with the Union were then
pending.
We find that by the statements and conduct of Plant Manager
Twetten and Chief Engineer Tiernan, as hereinabove set forth, and
by the prepared statement of General Manager Leonard, the respon-
dent interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
(b) The refusal to bargain
The respondent's policy concerning negotiations with the Union was
both vacillating and deceptive. Upon receiving the Union's telegram
of February 7 advising the respondent that its employees had selected
the Union as their bargaining representative and had instructed it to
proceed with negotiations, and the Union's letter of February 12
enclosing a proposed bargaining contract and requesting the respond-
ent to set a time for meeting with the Union, the respondent made no
attempt to communicate with the Union. It was only when Union
Representative Cremers telephoned on February 17 that General Man-
ager Leonard acknowledged receipt of the Union's claim and the pro-
posed contract. Leonard then agreed to hold a bargaining conference
with the Union on February 21, but later in the afternoon of February
17, he bypassed the Union by appealing over its head directly to the
employees assembled through his direction at the plant during work-
ing hours. Although Leonard had been informed by the Union that
its proposed contract had been approved by the employees, he never-
theless,-on that occasion, discussed the terms of the Union's proposed
contract as a whole and then took up the specific provisions relating
to vacations with pay, the closed shop, weekly pay periods, wages, and
hours. The burden of his discussion was that the respondent was
opposed to the Union's proposals and that their adoption would react
to the employees' disadvantage. As an alternative Leonard offered a
counterproposal of about an 8-per cent wage inciease, subject to gov-
ermental approval but without the necessity for collective bargaining
with the Union, and threatened economic reprisals in the form of a
lower wage scale if the employees required the respondent to execute a
contract with the Union. In sum, Leonard attempted to undercut the
Union's authority and dissipate its claimed majority by dealing di-
rectly with the employees on matters pending for negotiation with the
Union and by coercing them in their self-organizational rights. Such
conduct is in direct derogation of the statutory mandate requiring the
respondent to deal only with the exclusive bargaining representative,
in this case the Union. At the same time, the coercive statements and
TWIN CITY MILK PRODUCERS ASSOCIATION 85
conduct of Plant Manager Twetten and Chief Engineer Tiernan, here-
inabove found, were directed toward the achievement of the same
result.
Leonard's speech foreshadowed the position which the respondent
took at the bargaining conference with the Union on February 21. At
that time the respondent evinced an uncompromising attitude by
asserting its unalterable opposition to the closed-shop provision and
by rejecting, without any counterproposals, the provisions relating to
wages, hours, overtime, and vacations, provisions which constituted
the very marrow of the proposed contract. After having thus gone
through the formal motions of bargaining, the respondent then, for
the first time, questioned the Union's majority status. It refused the
Union's suggestion of a card check, insisting that the Union's majority
be established only by an election, a method of proof which would
enable the respondent to benefit from its prior unfair labor practices
directed toward the dissipation of the Union's majority. The re-
spondent may not take advantage of its unfair labor practices to
refuse to bargain with the Union 13 When the Union acceded to the
respondent's demands concerning the election and the eligibility date,
the respondent adopted a shifting position with respect to the election,
first agreeing to a consent election and then failing to execute the con-
sent election agreement or even to notify the Union about its change
of position in regard to it.14 That the respondent did not approach
the negotiations with an open mind, a spirit of cooperation, and a
sincere effort to reach an agreement is apparent from Plant Manager
Twetten's statement to employee Brown about February 19, that the
respondent was not "really ready to deal with the Union."
We find that the respondent, by its whole course of conduct, here-
inabove outlined, evinced an unwillingness to take an active and sin-
cere part in negotiating with the Union to the end that a collective
agreement might be consummated and failed to bargain with the
Union in good faith. We find further that by conditioning its will-
ingness to bargain with the Union upon proof of the Union's majority
status only through the conduct of an election, after having engaged
in- unfair labor practices directed toward the dissipation of the
Union's prior unchallenged majority representation claim and
status, the respondent refused to bargain with the Union within the
11 Cf N. L R . B. v Burke Machine Tool Co , 133 F ( 2d) 618 ( C C A 6 ), enf'g as
modified, 36 N. L. R. B . 1329 ; and Medo Photo Supply Corp v. N L R B , 321 U. S 678,
enf'g 43 N L . It. B 989.
14 See Matter of Concordia Ice Company, Inc, 51 N . L. It. B. 1069 , enf'd 143 F (2d)
656 (C C A. 10 ), where the Board found that an employer violated Section 8 (5) of
the Act by its shifting position on the issue of a consent election , together with its other
acts and conduct.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of Section 8 (5) of the Act. 15 Accordingly, we find that on
February 17 and 21, 1944, and at' all times thereafter, the respondent
refused to bargain collectively with the Union as the exclusive rep-
resentative of its employees in an appropriate unit, thereby inter-
fering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, oc-
curring 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 obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in and is engaging
in certain unfair labor, practices, we shall order it to cease and desist
therefrom and to take certain affirmative action designed to effectu-
ate the policies of the Act.
We have found that the respondent refused to bargain collectively
with the Union as the exclusive representative of its employees in an
appropriate unit. Accordingly, we shall order the respondent, upon,
request, to bargain collectively with the Union as such representative
with respect to rates of pay, wages, hours of employment, or other
conditions of employment.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Milk Drivers and Dairy Employees Union, Local 471, Haulers'
Division, affiliated with the American Federation of Labor, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the respondent at
its Elk River plant, excluding supervisory employees, office and
clerical 'employees, and truck drivers, at all times material herein
constituted, and now constitute, a unit appropriate for the purposes
'5,The Union 's acquiescence in the suspension of negotiations pending the outcome of
the election indicated no more than a willingness to accept the best terms it could obtain
under the circumstances and did not relieve the respondent of its statutory duty to bar-
gain with the Union at that time . Cf. McQuay -Norris Mfg Co. v. N. L. R. B., 116 F. (2d)
748 (C. C A. 7 ), cert. denied 313 U. S. 565 , where the Union' s acceptance of a contract
granting recognition for its members only was held not to relieve the employer of its
statutory duty to grant exclusive recognition. -
TWIN CITY MILK PRODUCERS ASSOCIATION 87
of collective bargaining within the meaning of Section 9 (b) of the
Act.
3. Milk Drivers and Dairy Employees Union, Local 471, Haulers'
Division, affiliated with the American Federation of Labor, was on
February 7, 1944, and at all material times thereafter has been, the
exclusive representative of all the employees in the aforesaid appro-
priate unit for the purposes of collective bargaining within the mean-
ing of Section 9 (a) of the Act.
4. By refusing to bargain collectively with Milk Drivers and Dairy
Employees Union, Local 471, Haulers' Division, affiliated with the
American Federation of Labor, as the exclusive representative of its
employees in the aforesaid appropriate unit, the respondent has en-
gaged in and is engaging in unfair labor practices within the meaning
of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent hac engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of the
Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Twin City Milk Producers Association, St. Paul, Minnesota,
its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Milk Drivers and Dairy
Employees Union, Local 471, Haulers' Division, aff=iliated- with, the
American Federation of Labor, as the exclusive representative of all
production and maintenance employees of the respondent at its Elk
River plant, excluding supervisory employees, office and clerical
employees, and truck drivers ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Milk Drivers and Dairy Employ-
ees Union, Local 471, Haulers' Division, affiliated with the American
Federation of Labor, or any other labor organization, to bargain col-
lectively 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.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Milk Drivers and Dairy
Employees Union, Local 471, Haulers' Division, affiliated with the
American Federation of Labor, as the exclusive representative of all
production and maintenance employees of the respondent at its Elk
River plant, excluding supervisory employees, office and clerical em-
ployees, and truck drivers, with respect to rates of pay, wages, hours
of employment, or other conditions of employment;
(b) Post at its plant at Elk River, Minnesota, copies of the notice
attached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director of the Eighteenth Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof and maintained
by it for sixty (60) consecutive days thereafter in conspicuous places,
including 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 Eighteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
Mx. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
APPENDIX A
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, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form
labor organizations, to joint or assist Milk Drivers and Dairy Em-
ployees Union, Local 471, Haulers' Division, affiliated with the Ameri-
can Federation of Labor, or any other labor organization, 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. All our employees are free to
become or remain members of this union, or any other labor
organization. '
We will bargain collectively upon request with the above-named
union as the exclusive representative of all employees in the bar-
gaining unit described herein with respect to rates of pay, hours of
k TWIN CITY MILK PRODUCERS ASSOCIATION 89
employment or other conditions of employment , and if an under-
standing is reached , embody such understanding in a signed agree -
ment. The bargaining unit is : All production and maintenance
employees at the Elk River plant, Elk River, Minnesota , excluding
supervisory employees , office and clerical employees , and truck drivers.
TWIN CITY MILK PRODUCERS AssoCIATION,
(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.
q