A. E. Staley Co.

National Labor Relations Board - Board Decisions

Jun 25, 1975

218 N.L.R.B. 817 (N.L.R.B. 1975)

A. E. STALEY COMPANY
A. E. Staley Company and International Union
Allied Industrial Workers of America, AFL-CIO.'
Cases 4-CA-6914 and 4-RC-10939
June 25, 1975
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On December 30, 1974, Administrative Law Judge
Thomas S. Wilson issued the attached Decision and
Report on Objections in this proceeding. Thereafter,
Respondent filed exceptions and a supporting brief,
General Counsel filed cross-exceptions and a sup-
porting brief, and Respondent filed an answering
brief.
Pursuant to the- provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, fmd-
ings,2 and conclusions3 of the Administrative Law
Judge only to the extent consistent herewith, and to
adopt his recommended Order as modified herein.
1. We find merit in General Counsel's exception
to the Administrative Law Judge's ruling, at the
hearing in this proceeding, denying General Coun-
sel's motion to amend its complaint to allege an
additional violation of Section 8(a)(1) of the Act.
The Administrative Law Judge denied the amend-
ment, stemming from a conversation between Area
Supervisor Saathoff and employee Frazier, on the
stated ground that "it came too late after [counsel for
General Counsel] had rested her case in chief even
1 The names of the parties appear as amended at the hearing.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convince s us that the resolutions are incorrect . Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent also contends that the Administrative Law Judge was biased
and. prejudiced against it . In support of that contention Respondent
primarily points to the fact that the Administrative Law Judge almost
uniformly credited General Counsel 's witnesses and discredited its own
witnesses . We have carefully reviewed the record and find nothing therein
which would indicate that the Administrative Law Judge was partial to
either of the parties. Moreover, it is well established that "total rejection of
an opposed view cannot of itself impugn the integrity or competence of a
trier of fact." NL.RB. v. Pittsburgh Steamship Company, 337 U. S. 656, 659
(1949). We accordingly find no merit in Respondent 's charge of bias and
prejudice.
s In agreeing that Respondent implied that it would eliminate any
grievances when it questioned employee Squibb about whether there was
anything it could do to make its plant a better' place to work, thereby
violating Sec . 8(axl) of the Act, Member Penello so finds because he views
218 NLRB-No. 93
817
though the evidence had been newly discovered only
the evening prior to the opening of the hearing." In
so ruling, the Administrative Law Judge misinter-
preted certain of the Board's recent decisions in
which the Board refused to find' certain violations
which were not alleged in the complaint or litigated
at the hearing as covering General Counsel's attempt
to amend its complaint here.4 For the reasons set
forth below, we disagree.
Examination of the record has established to our
satisfaction that the incident on which the General
Counsel was relying for establishing additional
violations of Section 8(a)(1) was thoroughly litigated
at the hearing in connection with the objections case
and is closely related to other violations involved and
found herein. Although Respondent objected to the
introduction of evidence' on these issues at the
hearing, claiming surprise, the Administrative Law
Judge ruled that it was admissible-under the general
catchall paragraph in the Petitioner's -objections
alleging other acts and conduct to have interfered
with the election. Furthermore, Respondent at no
time during the hearing requested-additional time to
prepare its defense on these issues, and in fact
proceeded to litigate them fully. Linder circum-
stances "where, as in this instance, the matters have
been fully litigated at the hearing and the amend-
ment conforms the complaint to -the -evidence
adduced, the Trial Examiner's denial of such motion
is in error." 5 Accordingly, we `hereby reverse the
Administrative Law Judge's ruling and grant Gener-
al Counsel's motion to amend.
Proceeding then to the merits of the 8(a)(1)
allegations, General Counsel alleges that, in a
conversation between Area Supervisor Saathoff and
employee Frazier in late May or early June, Saathoff
coercively interrogated Frazier, and threatened him
with reprisals if he continued his support for the
this interrogation in the total context of the other unfair labor practices
found herein.
However, Member Penello does not agree that Respondent's circulation
of the Decatur newspaper and the literature regarding strikes and strike
benefits violated Sec. 8(axl), even when considered in the light of the
inquiry as to what employee Wiltz thought about the Union and how he
would vote. But in adopting the finding that the questioning of Wiltz
violated Sec. 8(axl), Member Penello notes that the Administrative Law
Judge's concluding sentence of the next to last paragraph of sec . B, 1, b, of
his Decision apparently is incomplete in that a portion seems to have been
omitted and therefore it is unintelligible.
4 We disavow the Administrative Law Judge 's interpretation of our
decisions and do not adopt his fn. 25 characterizing as a "ploy" or
"technique" our decisions refusing to consider certain evidence under
circumstances where we found that respondent had not been fairly apprised
of the charges against him. The use of such terminology in reference to our
decisions in this area of procedural due process suggests that the Board is
grasping at devices to dismiss meritorious unfair labor practice charges, and
obviously results from the Administrative Law Judge's failure to construe
our statements properly and to understand the factual distinctions between
the cases.
5 The Lion Knitting Mills Company, 160 NLRB 801, 802 (1966).
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. The Administrative Law Judge made the
following fact findings with respect to that conversa-
tion:
[In late May or early June] Area Supervisor
Garry Saathoff came into the second floor wet
mill and stood looking at [employee] Frazier who
was then washing screens, a job which an absent
employee was supposed to perform. Upon discov-
ering Saathoff staring at him, Frazier inquired,
"What's the problem, Gar?" To which Saathoff
answered, "I was hoping you could tell me the
problem." After Frazier denied having any
problems, Saathoff inquired what insignia Frazier
had on his cap. There were AIW (Union) stickers
and the numbers "666," the number recently
assigned to the local, painted on his cap. Saathoff'
then stated, "I think a man in your position
should not be thinking about the Union." He then
explained that he "had a friend in the union back
home and they were out on strike; that he was
having a very rough time of it, a hard time."
Frazier, who had just bought a new house as
Saathoff well knew, answered that striking was
the last thing the employees had in their minds
and if the Union started talking strike, the union
meetings would be deserted . Saathoff rejoined,
"Well, don't let that fool you because these
people are a strike-happy outfit" and, while he
said he did ' not want to influence Frazier's
opinion, he did want Frazier to think "very
strongly on this." Saathoff concluded this conver-
sation by saying, "If I [Frazier] ever wanted to get
anywhere with the Company or move ahead with
the Company that I wouldn't do it with the
Union."
We agree with the Administrative Law Judge that
Saathoff's remarks to Frazier constituted a coercive
interrogation with respect to Frazier's union sympa-
thies and also threatened him with reprisal in his
career progression with Respondent if he should
continue his support for the Union. And inasmuch as
we' have found that the issue was thoroughly
litigated, that it is similar and related to the other
violations found herein, and that Respondent cannot
therefore reasonably claim surprise at being con-
fronted with an additional 8(a)(1) allegation covering
the same conduct, we find that Respondent violated
Section 8(a)(1) by these remarks and will modify the
Administrative Law Judge 's recommended Order
and notice to reflect these findings.
2. We 'also find merit in General Counsel's
contention that the Administrative Law Judge
erroneously omitted from his Conclusions of Law,
recommended Order , and notice certain 8(a)(1)
violations-including an instance of soliciting griev-
ances during the organizing campaign with the
implied promise of remedying same and an incident
of coercive interrogation of employees as to whom
would give testimony against the Company at the
hearing in this case-which he specifically found in
an earlier portion of his -Decision . Since these
omissions appear to have been inadvertent we shall
modify the Administrative Law Judge's recommend-
ed Order and notice to reflect these additional
findings.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
A. E. Staley Company, Morrisville, Pennsylvania, its
officers , agents, successors , and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 1:
"1. Cease and desist from:
"(a) Coercively interrogating its employees con-
cerning their union sympathies , activities, and voting
intentions ; soliciting grievances from its employees
with the implied promise of eliminating the same;
coercing employees by showing them newspaper
clippings and other literature of plants where strikes
and riots have occurred because the companies could
not negotiate with the unions; threatening employees
with loss of existing benefits and privileges to
discourage union membership or support; and
threatening employees with promotional and eco-
nomic disaster in an effort to discourage union
membership and support.
"(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed to them in Section 7 of the
Act"
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election held on
June 19 and 20, 1974, in Case 4-RC-10939 be, and it
hereby is , set aside, and that Case 4-RC-10939 be,
and it hereby is, remanded to the Regional Director
for the purpose of conducting a new election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
A. E. STALEY COMPANY 819
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
All Agency of the United States Government
After a hearing in which both sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we have
violated the National Labor Relations Act, and we
have been ordered to post this notice and abide by
the following:
WE WILL NOT coercively interrogate our em-
ployees concerning their union sympathies and
activities or voting intentions, or why they feel a
union is needed at the plant.
WE WILL NOT solicit grievances in order to
imply they will be eliminated if the Union is not
elected.
WE WILL NOT coerce our employees by showing
them newspaper clippings and other literature of
plants where strikes and riots have occurred
because the companies could not negotiate with
the unions.
WE WILL NOT threaten our employees with the
loss of benefits if the Union is elected.
WE WILL NOT threaten our employees with
promotional and economic disaster to discourage
union membership and support.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization,
to form, join, or assist labor organizations, to
bargain collectively through representatives of
their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from engaging in such activities.
A. E. STALEY COMPANY
DECISION AND REPORT ON OBJECTIONS
STATEMENT OF THE CASE
THoMAs S. WILSON, Administrative Law Judge: Upon a
charge duly filed on June 27, 1974, by ]International Union
Allied Industrial Workers of America, AFL-CIO,' herein
referred to as the Union, the General Counsel of the
National Labor Relations Board, herein referred to as the
General Counsel2 and the Board, respectively, by the
Regional Director for Region 4 (Philadelphia, Pennsylvan-
ia), issued its complaint dated August 30,1974, against A.
E. Staley Company,3 herein referred to as Respondent or
the Company.
1 So corrected by amendment at the hearing.
2 This term specifically includes the attorney appearing for the General
Counsel at the hearing.
The complaint alleges that the Respondent had engaged
in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Labor Management Relations
Act, 1947, as amended, herein referred to as the Act.
By order of the said Regional Director dated the same
date the objections of the Union to the election held on
June 19-20, 1974, were consolidated for hearing with the
complaint case as many, but not all, of the allegations of
the complaint case also applied to the objections filed by
the Union. At the hearing, Respondent objected to this
consolidation on the ground that the General Counsel
allegedly had a part in the investigation of the objections to
the election and was thus claimed to be disqualified from
acting as General Counsel in the complaint case. That
objection was overruled.
Respondent duly filed its answer admitting certain
allegations of the complaint but denying the commission of
any unfair labor practices.
Pursuant to notice a hearing on such issues was held
before me in Philadelphia, Pennsylvania, on October 24
and 25, 1974. All parties were represented by counsel and
were afforded full opportunity to be heard, to produce and
cross-examine witnesses, and to introduce evidence and
material pertinent to the issues. At the conclusion of the
hearing, oral argument was waived. Briefs were received
from General Counsel, Respondent, and the Union on
December 2, 1974.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I,
therefore, find that:
A. E. Staley Company is, and has been at all times
material herein, a corporation duly organized under, and
existing by virtue of, the laws of the State of Delaware, and
is engaged in the processing of corn and soybean products
at its Morrisville, Pennsylvania, facility. During the past
calendar year, Respondent, in the course and conduct of its
business , sold goods valued in excess of $50,000 to
customers located outside the Commonwealth of Pennsyl-
vania.
Accordingly, I find that Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union Allied Industrial Workers of
America, AFL-CIO,4 is a labor organization admitting to
membership employees of Respondent-
3 So corrected by amendment at the hearing.
4 Similarly corrected by amendment at the hearing.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Setting
The undisputed warp and woof of this case is as follows:
The Union began its annual campaigns to organize the
production and maintenance unit employees of Respon-
dent's new (1971) plant at Morrisville, Pennsylvania, by
sending a telegram to Respondent dated February 13,
1974,6 stating, inter alia, the names of the employees on its
organizing committee. Thereafter it held weekly meetings
on Tuesdays for the employees.
On April 25, the Union filed its petition for certification
as the exclusive bargaining agent for the employees in the
production and maintenance unit.
By the end of April, Respondent had begun its
countercampaign which, by the date of the election,
included some 45 leaflets, posters, or individual direct
mailings to the affected employees.
On May 6, Respondent held a meeting of all its
supervisory and managerial staff at the nearby Bristol
Motor Inn. This meeting was chaired by Morrisville Plant
Manager Homans and Bill Sprague, assistant manager of
labor relations from Respondent's headquarters in Deca-
tur, Illinois. The, meeting was attended, according to
Personnel Manager Joseph Cistone who arranged it, by
"salaried employees who have direct or a good amount of
contact with the hourly work force", including supervisors
and foremen. Cistone's assistant, Frank Beebe, assistant
personnel coordinator, was also in attendance at the
meeting.?
Those in attendance were addressed by Homans and
Sprague, neither of whom is an attorney. Those in
attendance were given a pamphlet on the "Do's and
Dont's" for supervisory personnel during a union cam-
paign. They were also told that they "were not to
interrogate, not to make promises, not to try to find out
union sympathies, etc., items to this effect." This admoni-
tion was exemplified by examples that "we were not to go
to an hourly employee and ask his union sympathies - ask
him if he was going to vote for the Union, or how he felt
about the Union" or to threaten a man known to have
voted for the Union with the loss of his job if the Union
were to get in. They then discussed the strategy of
Respondent's campaign and discussed the campaign
material which Respondent would issue to the employees
with the instruction "that the foremen were to discuss this
information with their employees and insure that they
understood the Company's viewpoint on each and every
one of these items," according to Cistone. With that, those
present were dismissed in order to carry out such
instructions.
As a result of the instructions there given, those present
at the meeting, including Frank Beebe, did go out and did
talk to the employees as instructed. Area foreman for the
refinery, Edward Karcher, admitted talking about the
5 The Union conducted unsuccessful campaigns in both 1972 and 1973
so that the production and maintenance employees have remained without
union representation to the date of the hearing.
6 All dates herein are in the year 1974.
7 At the hearing Respondent was allowed to amend its answer which had
admitted Beebe's supervisory capacity so as to deny such status.
Union and the election to 40-50 employees and Quality
Control Supervisor Don Brodie admitted talking to the
employees on the same subject every day. A number of
these conversations will be described in detail hereinafter.
In her presentation of the complaint case, General
Counsel produced five employees who detailed eight
conversations they had with supervisors or Beebe. Of these
conversations only five occurred during the critical period
between the filing of the petition and the election and thus
are to be considered in the objections case. After General
Counsel rested the complaint case, the Union presented
one witness, Alan Frazier, who testified to conversations
with two supervisors during the critical period. The Union
presented this testimony as applicable to the objections
case only. Respondent objected both to the evidence as
admissible under the pleadings in the complaint case or
under the objections. General Counsel belatedly attempted
to amend the complaint so as to include these last two
conversations as part of her complaint 'case. For technical
reasons which will be explained hereinafter I sustained
Respondent's objections to this testimony as far as the
complaint case was concerned, but allowed the testimony
in the objections part of the case.
On June 19 and 20 the election was held, Of Respon-
dent's 153 employees 146 voted therein - 73 voted in
favor of union representation and 73 voted against.
On June 26 the Union duly filed six objections to the
conduct of the election. Subsequently it withdrew all such
objections but the following:
(2) The employer unlawfully promised benefits to
employees that if they did not vote the Union in, they
would receive such benefits after the election was
ended.8
(3) The employer unlawfully interrogated employees as
to their support for and assistance to the Union.
* * * *
By these and other acts, the employer interfered with
the election in the above manner.
By order of the Regional Director dated August 30 these
union objections were consolidated for hearing with the
allegations of interference, restraint, and coercion alleged
in the complaint herein.
B. Interference, Restraint, and Coercion
1. Precritical period 9
a. Edward Squibb
About April 710 about 8 p.m. Foreman Fain invited
employee Edward Squibb, a known member of the Union's
organizing committee, into the office of Area Foreman
Edward Karcher, which was nearby, as Fain wanted to
S This objection was amended at the hearing to take care of a
typographical error.
9 It is still a well-established and existing rule of the Board that it will
consider in objection to election cases only matters occurring between the
date of the filing of the petition and the date of the election
10 The date suggested in the General Counsel's question.
A. E. STALEY COMPANY
discuss working conditions and any grievances Squibb
might have. In Karcher's office Fain stated:
I know what your position on the Union is because of
your position on safety. But what grievances do you
have, what complaints do you have about the way
things are run in the plant?
Squibb answered that he really had no complaints except
he was generally in disagreement with management
policies. Fain then inquired if "there was anything he could
do that would make it a better place to work." Squibb said
he had no complaints about the way Fain was treating him.
Fain then inquired, "Well, what do you think the Union is
going to do for you?" Squibb answered that at least they
would have a part in writing the contract. After some
further discussion of personalities this approximately 40-
minute conversation ended."'
Respondent's brief notes that "the record is void of any
testimony suggesting that Fain promised Squibb any
benefits in an effort to induce him to vote against the
Union." The short answer to this is that the mere inquiry
about employee grievances in the midst of an organizing
campaign implies to the individual questioned that
amelioration thereof may well be at hand.
Another well-established and still-existing rule of law is
that an employer's solicitation of grievances immediately
upon learning of a union organizing campaign for the
purpose of eliminating, or implying elimination of, possible
causes of employee discontent constitutes interference,
restraint, and coercion in violation of Section 8(a)(1) of the
Act 12
Accordingly I must, and hereby do, find that Fain's
interrogation of, and solicitation of grievances from,
employee Squibb constituted interference, restraint, and
coercion in violation of Section 8(aXl) of the Act.
b. Lutcher Wiltz, Jr.
Also about April 713 admitted Supervisor Ed Fain took
employee Wiltz, a cooler operator, into Karcher's office
where he told Wiltz that he had been spending too much
time in the control room and lab. Fain continued this 10-
minute conversation by asking Wiltz about the Union,
which way he was going to vote, and why Wiltz thought
"we needed a union in the plant." 14
On another occasion about a month before the election
Wiltz was making his delivery of samples to the lab where
he discovered Don Brodie, quality control foreman, talking
to two lab technicians about the Union. As Wiltz
approached, Pete Schwartz, a technician, said to Brodie,
"there's the man you should ask about that." Brodie
thereupon asked Wiltz how he felt about the Union and
11 Fain was not called as a witness so the above is undisputed testimony.
12 Landis Tool Co., Div of Litton Industries v. N.LRB., 460 F.2d 23 (C.A.
3, 1972), cert. denied 409 U.S. 915; N.LRB. v. Torn Wood Pontiac, Inc, 447
F.2d 383 (C.A. 7, 1971); NLRB. v. Delight Bakery, Inc., 353 F.2d 344 (C.A.
5, 1965).
13 Wiltz was unable to give the date of this conversation except that it
was about April 7 and probably at the same time as the Fain-Squibb
conversation . It is thus prior to the critical period and so will be considered
only in the complaint case.
14 Fain's question as to how Wiltz would vote in the election would
821
which way he was going to vote. Wiltz acknowledged he
was going to vote for the Union. A little later in the
conversation Brodie took the occasion to show Wiltz a
Decatur newspaper all about the "Rioting, police officers,
guys out on strike" and the fact that the strikers were
collecting $25 a week while on strike. During this part of
the discussion Brodie said, "Look what you've got without
a union - benefits, raises," and "things of that nature." He
further argued, "Look at what you would have to go
through - strike pay, missing days. - You don't gain
anything by having a union because the days you would be
out, you could actually make that up by working without a
union." 15
Brodie testified that he had no recollection of the above
conversation with Wiltz. However, as Brodie admitted that
he averaged about one conversation per day with employ-
ees about the Union, his forgetfulness about his conversa-
tion with Wiltz is understandable. I credit the testimony of
Wiltz.
Brodie, had attended the May 16 meeting and was thus
following Respondent's instructions in talking union with
the employees. That he may also have violated those
instructions by inquiring as to what the employee thought
about the Union and how he would vote is also perfectly
natural under the circumstances because these two items
were the very crux of the matter Respondent had
instructed the supervisors to talk about. In fact, the
Decatur newspaper and the Company's literature regard-
ing "Strikes, Riots," and $25-a-week strike benefits could
only have been issued for the purpose of scaring the
employees to vote against the Union. The fact that the
method was subtle does not negate the fact that its purpose
was to interfere with, restrain, and coerce the employees
into voting against the Union in violation of Section 8(a)(1)
of the Act. The question regarding Wiltz' union sympathies
and how he would vote merely corroborate the above
finding as those questions are also long and well-estab-
lished and still-existing acts of interference, restraint, and
coercion in violation of Section 8(a)(1).
Although Respondent's brief does not raise the technical
defense that Brodie here apparently violated the private
limitations upon his authority as Respondent's agent, that
he was not "to interrogate or promise benefits" to the
employees, that secret limitation on, Respondent's agents
would be no defense under the ordinary rules of the
Agency.
2. Critical period
a. John V. DiLeonardo
This conversation took place between Area Foreman
Karcher and employee DiLeonardo, a cleaner and known
appear to indicate that the RC petition had already been filed because until
that time the idea of voting in an election was ephemeral at best and is
hardly a topic of conversation theretofore . However, the best date Wiltz
could give was about April 7.
15 While admittedly uncertain , Wiltz' best recollection was that this
conversation was about a month before the election . This coincides with
Alan Frazier who was confronted with a piece , of campaign literature
created by Respondent and relating to "Strikes, Riots," etc. just before the
election . Consequently I find that this conversation took place during the
critical period.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member of the organizing committee, just outside Karch-
er's office about a week before the election-16 Karcher
inquired as to how DiLeonardo felt about the Union. The
answer was that it could help or hurt the Company.
Karcher confirmed the conversation and the time
thereof. But he testified that he asked DiLeonardo "to
think about the [Company] literature and would like him
to ask himself what the Union could do for him." Karcher
acknowledged that he may have pointed out to DiLeonar-
do that he, Karcher, knew of instances when the Union got
in and the employees lost benefits. He also acknowledged
the possibility of having told DiLeonardo that all benefits
of the employees would be up for renegotiation if the
Union got in. And he may also have said that a strike was a
possibility from his own past experience and from the
literature which Respondent had issued. However, Karcher
denied having asked how DiLeonardo felt about the Union
but admitted the possibility that he may have asked
DiLeonardo, "How do you feel?"
Karcher admitted having talked with 40-50 employees in
the same vein.
In the light of all the above admissions I must credit the
testimony of DiLeonardo and find that thereby Karcher
interfered with, restrained, and coerced DiLeonardo in
violation of Section 8(a)(l) of the Act.
b. Louis W. Fredericks
Fredericks, a pipefitter and another known organizing
committee member, had been hospitalized with severe
depression for about a month but returned to work with
Respondent doctor's permission on June 17. During that
period he had been receiving his disability payments drawn
from the Morrisville plant account because disability
checks due him were very slow coming from Respondent's
Decatur office. These advances were then repaid upon the
receipt of the Decatur checks. It had been arranged for
Fredericks by Personnel Manager Cistone.
On June 1817 Cistone took occasion to go into the
millwright shop to welcome Fredericks back to work.
After welcoming Fredericks back to work in the presence
of other named employees,ls Cistone suggested that he and
Respondent thought it to be in Fredericks' best interest for
him "to stay out of union affairs" until he got back on his
feet. Cistone thereupon added that, "if the Union was
voted in," the arrangement in effect under which Freder-
icks had been receiving his disability payments early
through the Morrisville account would have to stop and
Fredericks would have to wait until the delayed insurance
checks arrived from the Decatur office-19
In his testimony Cistone acknowledged the occurrence of
this meeting, its date, and that there was a discussion about
"the final disability payment and what effect it would have
on [Fredericks]." He further admitted making the sugges-
18 DiLeonardo placed the date of this conversation at that time because
"everybody was talking about the Union" and "that's when all the bosses
were friendly and things like that."
17 For reasons beyond my ken this testimony was not introduced by
General Counsel as part of her complaint case. It was introduced by the
Union as part of its objections case. Although it appears that this testimony
was admissible on both issues , in accord with the request of the union
attorney, it will be considered only as to the objections part of the case.
18 This employee was not called upon to testify.
tion that "in the interest of the company and also of
himself, a combination of such, that he [Fredericks] may
refrain from engaging in activities that may prove
detrimental to his present mental condition." Subsequent
examination proved that he had used "words to the effect
that he should be very careful of how much he engages in
the campaign or in activities that they (sic) aggravate his
condition" and that "the union campaign" was mentioned
as Cistone phrased it, "if not directly, indirectly, yes."
Upon this record I have no doubt and consequently find
that, while Cistone was no doubt sincerely interested in
Fredericks' mental condition, one of his objectives in
welcoming Fredericks back was to force him to refrain
from participation in the union campaign by interrogation,
threat, or promise to delay his disability payments. In short
I credit the testimony of Fredericks.
In the second week of July, after the objections to the
election had been filed, Fredericks was standing with two
other named employees 20 in the pipe shop when Cistone
walked in and inquired of the group, "Who is going to give
testimony against the Company?" without waiting for an
answer he then walked away to the water fountain. No
answer was made.21
Cistone denied making the above statement. Throughout
his testimony Cistone displayed a propensity to omit or
skirt embarassing matters to the best of his ability. If
Fredericks were not telling the truth, Respondent had two
witnesses named and not shown to be unavailable whom it
could have called to disprove Fredericks' testimony. It
failed to do so. Under these circumstances again I must
credit the testimony of Fredericks.
I find that Cistone's query on this occasion was made in
an effort to interfere with, restrain, and coerce the three
employees involved to refrain from testifying against
Respondent in violation of Section 8(ax 1) of the Act.
c. James M. Ward
About a month or month and a half before the election
and thus within the critical period, Frank Beebe, assistant
personnel coordinator under Cistone, inquired of employee
Ward, a lubricator, if Ward had attended the [union]
meeting the night before. Ward answered that he had as
they had free beer. Beebe then inquired as to what was
discussed at the meeting. Ward answered, "Nothing that he
doesn't already know."
On a Wednesday sometime later, also within the critical
period, Beebe and Ward were discussing the Staley
Employees' Activities Association (SEAA) meeting which
took place at the same time that afternoon as a safety
meeting. Beebe asked who was in attendance. When Ward
started to give the names of those present at the SEAA
meeting, Beebe stopped him and said that he was asking
who had attended the union meeting the night before.
18 Respondent made the technical objection to this testimony that the
evidence was inadmissible because the objections only mentioned
'interrogation" and "promises" but said nothing about `intimidation,
threats, coercion." The objection was overruled . Thereafter this matter was
fully litigated.
20 Neither was called as a witness.
21 General Counsel did introduce this testimony as part of the complaint
case . As it occurred outside the critical period, this testimony cannot be
considered in relation to the objections case.'
A. E. STALEY COMPANY 823
Ward answered that, if Beebe had been there, he would
have been able to find out who attended. Beebe rejoined
that he was not allowed to attend union meetings because
of his position.
Beebe was not called to deny the above attempts at
interrogation about union matters.
Respondent defended against this testimony on the
ground that Beebe was not a supervisor.22 The short
answer to this defense is that Beebe was one of those in
attendance at the May 6 -meeting where those in attend-
ance were instructed to talk to the hourly employees and
convince them to read and understand Respondent's
campaign literature among other things. Beebe thus
became an agent of Respondent. That he may have
violated the secret limitations on his authority as such an
agent by engaging in interrogation is no defense to
Respondent here under the ordinary rules of agency. That
was the chance Respondent took.
In addition the evidence here shows that Beebe was
salaried, was assistant to Personnel Manager Cistone, had
his own office in the plant, took grievances and safety
problems from the employees in the absence of a foreman
and relayed them to the foreman or Cistone without
actually deciding the merits thereof himself. He also
handled the job-bidding procedures which depended
exclusively on seniority and announced the successful
bidding employees by a notice over his own signature. He
also attended SEAA meetings on orders of Cistone for the
purpose of indicating what events Respondent would help
SEAA finance and thus acted as Respondent's agent there.
He also attended the monthly foreman's meeting attended
only by foremen, supervisors, or management. So , in
addition to being the appointed agent of Respondent in
this case, he also would qualify as part of management.
Accordingly, I find in accordance with the facts found
above, that Respondent interfered with, restrained, and
coerced employee Ward by Beebe's interrogation of him
regarding the Union in violation of Section 8(a)(1) of the
Act.
As these interrogations occurred during the critical
period, this evidence also applies in the objections case.
Conclusions as to the Violations of Section 8(a)(1)
As indicated heretofore, Respondent by its supervisory
and management staff violated the well-established rules of
Section 8(a)(1) by:
1. Soliciting grievances from employee Squibb during
the union organizing campaign with the implied promise of
eliminating the same;
2. Interrogating employee Wilts, as to his union
sympathies and as to how he intended to vote;
3. Interrogating employee Wiltz as to why the Union
was needed in the plant and by coercing Wiltz and others
with threats of strikes and economic consequences to those
in sympathy with the Union;
112 At the beginning of the hearing Respondent was permitted to amend
its answer by withdrawing its admission of Beebe's supervisory capacity and
substituting therefor a denial thereof.
Although admitting to having talked to employees quite occasionally
about the Union in conformity with the May 6 instructions , Behn denied
4. Questioning DiLeonardo about his union sympathies
as well as impliedly threatening loss of benefits to
employees if the Union won the election;
5. Attempting to restrict Fredericks' participation in
union matters purportedly on health grounds and threaten-
ing to delay his compensation checks if the Union won the
election; and
6. Interrogating employee Ward as to union affairs and
other employees participating therein.
Respondent defends here on the grounds that these
conversations should be dismissed as "isolated." The short
answer to that is that there were too many such
conversations to be classified as "isolated."
Respondent further defends on the technical ground that
obviously Respondent was not attempting to ferret out the
union sympathies of the employees for the purpose of
discharging them because all the employees spoken to were
known members of the organizing committee and were
wearing their union buttons openly. That is true as far as it
goes. But the employees had no idea as to what the future
might hold for them regarding their employment with
Respondent in the event that the Union won the election.
By turning its supervisors and management employees
loose to carry Respondent's messages to the employees,
Respondent took the chance that unfair labor practices
might well occur. At least six unfair labor practices did.
The spirit of "anything to win" seems to have pervaded this
election as unfortunately it has in other recent elections.
C. Additional Objections Testimony
After the General Counsel rested on the evidence noted
above, the Union called employee Alan Frazier, a steep
operator, for additional testimony relating to the objections
case. Frazier testified to conversations he had during the
critical period with Supervisor Frank Behn and about a
week later with Area Foreman Garry Saathoff.
In late May, and thus after the supervisor's meeting of
May 6 at the Bristol Motor Lodge, Behn came into the wet
mill control room where Frazier, Stanley Gwozeziewicz, a
lead operator and one time assistant supervisor, and
employee Larry Hutson were discussing the pros and cons
of the Union. Behn walked up to the group and inquired,
"What do you think about the Union?" Stanley answered,
"We don't need a union." Frazier thought "it might
straighten this place out." Hutson mentioned certain
specific benefits he would like. Behn concluded this
discussion with the comment, "Don't you think ' you're
getting carried away, that your [sic ] taking this union
business too far?"23
A week or so later Area Supervisor Garry Saathoff came
into the second floor wet mill and stood looking at Frazier
who was then washing screens, a job which an absent
employee was supposed to perform. Upon discovering
Saathoff staring at him, Frazier inquired, "What's the
problem, Gar?" To which Saathoff answered, "I - was
hoping you could tell me the problem." After Frazier
having engaged in the above conversation . His denials were based solely
upon the fact that such a conversation would have been beyond and
contrary to Respondent's instructions at that meeting. Behn's denials were
unconvincing.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied having any problems, Saathoff inquired what
insignia Frazier had on his cap. These were AIW (Union)
stickers and the numbers "666," the number recently
assigned to the local, painted on his cap. Saathoff then
stated, "I think a man in your position should not be
thinking about the Union." He then explained that he "had
a friend in the union back home and they were out on
strike ; that he was having aVery rough time of it, a hard
time." Frazier, who had just bought a new house as
Saathoff well knew, answered that striking was the last
thing the employees had in their minds and if the Union
started talking strike, the union meetings would be
deserted. Saathoff rejoined, "Well, don't let that fool you
because these people are a strike-happy outfit" and, while
he said he did not want to influence Frazier's opinion, he
did want Frazier to think "very strongly on this." Saathoff
concluded this conversation by saying, "If I [Frazier] ever
wanted to get anywhere with the Company or move ahead
with the Company that I wouldn't do it with the Union."
Except for denying having said that a man in Frazier's
position should not be_ thinking of the Union, that if
Frazier wanted to get anywhere with the Company, ` he
wouldn't, do it with the Union and referring to the Union
as "strike happy," Saathoff's testimony Corroborated
Frazier's very closely. Saathoff testified that Frazier told
him that the Union was not going" to be voted in and then
his testimony in pertinent part went as follows:
A. `Al,' I said, `One thing I want to set straight
right now. I do not want to know what your affairs are
with the Union or how you are going to vote. I have
some facts I'd like for you to listen to, take five minutes
to- listen to my facts, and I want to make sure that you
are reading the company literature and reviewing it,
trying to understand what message the company is
getting across.'
Q. Did you say anything else?
A. Yes. Well, we talked basically about the
literature. The thing came up about the poster that the
company had put out regarding strikes. I told him that
four out of five companies in the ILecatur'area had had
strikes this year that were under A1W rule and that
presently one of the fellows who is a good friend of
mine is negotiating for the A_►IW in Decatur, he's been
on strike for sometime; he has a family of three and a
house to pay for and he's having a tough time making
ends meet.24
Q. Did you say anything ilbout strike votes?
A. I don't understand.
Q. Did you say anything about the Union taking
strike votes?
A. Well, I did say that by the literature that Staley
had put out, that they had a history of strikes, that they
had had several strikes, the A1W Union.'
Q. Did Mr. Frazier make any response to your -
well, does this complete your recollection of what you
said?
A. No. Right away Al replied and said, `We would
not take a 'strike vote here. Most of us are young people
who cannot afford strikes. We are trying to buy houses,
get started in the world. We'd lose everything we' had if
we were out of work 2 weeks.' And I said, `well, I think
that's always the possibility that you've got to contend
with., I cannot say whether that would happen or not.'
Respondent objected to the Frazier testimony in sub-
stance first, as to the admissibility in the objections case,
on the ground that the testimony. constituted a "threat"
rather than either an "interrogation" or a "promise of
benefit" as alleged in the objections; second, when General
Counsel belatedly asked to amend her complaint to allege
these conversations as "interference, restraint and coer-
cion" in violation of Section 8(a)(1), on the grounds that
the complaint contained no specific allegations regarding
incidents involving either Behii or,Saathoff.
My rplings on these two motions admittedly were almost
unduly technical. I ruled the Frazier testimony admissible
in the objections case where pleadings are'admittedly less
formal*'than in complaint cases. Respondent's objection
here ,was based solely on pure semantics rather than on the
law or the facts. I perceive little difference between
"interrogation" and "threats" other tltan that each is an
integral part of the more inclusive phrase "interference,
restraint and coercion." If this°last phrase is further divided
into small enough segments , the whole concept of unfair
labor practice pleading will depend exclusively on phra-
seology and we will have an6ther "word game." The choice
of the word to be used is less important than the fact
involved.
I refused General Counsel's proposed amendment to the
complaint on the highly technical ground that it came too
late after she had rested her case in chief even though the
evidence had been newly discovered only the evening prior
to the opening of the hearing. It could, of course, have been
allowed on the grounds of newly discovered evidence.
However, of late the Board, or certain members thereof at
least, have shown an increasing propensity to eliminate
evidence from complaint cases on the stated ground that
24 Saathoff knew that Frazier had recently purchased a new house.
A. E. STALEY COMPANY $25
"this violation was neithbr alleged in the complaint nor
fully litigated at the hearing." 25
Except for the belatedness of General Counsel 's motion
to amend her complaint to allege violations of Section
8(a)(1) of the Act by reason of the conversation Supervisor
Behn and Saathoff had with Frazier during the critical
period here, the amendment requested should have been
allowed as permitted by the Rules of Civil Procedure.
There can be no question but that the testimony relating
to these two conversations proved that Respondent
through its supervisors interfered with, restrained, and
coerced Frazier by interrogation as to his union sympa-
thies , by promises of benefits , and by threats of promotion-
al and economic disaster in an effort to prevent him from
voting his own choice in the election of June 19-20. The
conversation with Saathoff constitutes one of the clearest
and strongest cases of violations of Section 8(a)(1) in this
record, although it cannot be so found here due to the
pleadings.
These conversations combined with the other allegations
of Section 8(a)(1) during the critical period , as found
above, make it clear that Respondent was running a "win
at any cost" election campaign designed to coerce its
employees into voting against the Union and not necessari-
ly voting their own free will . These actions went far beyond
permissible campaigning . Thus, the election of June 19-20
was not held under the laboratory conditions which the
Board requires at its elections.
Consequently I recommend that the objections to the
election be sustained , and the election of June 19-20 be set
aside and a new election ordered.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, and occurring in connection with Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship 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 Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
zs See the latest example of the use of this ploy in Moffitt Building
Materials Company, 214 NLRB NO. 110 (1974).
In fact, in one case at least , Kngwood Mining Co., 210 NLRB 844 (1974)
Members Kennedy and Penello carried this technique so far as to include
the "theory" of the complaint when they held as follows:
We are unwilling to rely upon the Administrative Law Judge's finding
of a discriminatory motivation for Respondent 's conduct, because that
is not the theory of the complaint herein and, even though Respondent
produced some evidence at the hearing to explain that the basis for its
action was economic in nature, we are not satisfied that Respondent
was sufficiently kept on notice that the motivation for its shutdown and
subcontracting, as well as the unilateral aspect thereof, was an issue to
be litigated in the case . [Emphasis supplied.]
And then they dismissed the case on the economic justification about which
the respondent had not been "sufficiently kept on notice." Member Jenkins
dissented.
desist therefrom and that it take certain affirmative action
designed to effectuaw the policies of the Act.
Because of the type . and extent of the unfair labor
practices engaged in by Respondent, I sense an opposition
by Respondent to the policies of the Act in general and I
deem it necessary to order Respondent to cease and desist
from in any manner interfering with the rights guaranteed
its employees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record herein , I make the following:
CONCLUSIONS OF LAW
1. By interrogating its employees as to their union
sympathies, by threatening the loss of employee benefits if
the Union won the election, and by attempting to restrict
its employees in their participation in union affairs,
Respondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(l) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record in this
proceeding, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
ORDER26
The Respondent, A. E. Staley Company, Morrisville,
Pennsylvania, its Officers, agents, successors, and assigns,
shall:
1. Cease and desist from interrogating its employees
about their union sympathies or in any other manner
interfering with, restraining, or coercing its employees in
the exercise of the rights guaranteed to them in Section 7 of
the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its Morrisville, Pennsylvania, plant copies of
the attached notice marked "Appendix." 27 Copies of said
notice, on forms provided by the Regional Director for
Region 4, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
See also Hydro-Dredge Accessory Co., 215 NLRB No. 5 (1974), which
crossed my desk today and which appears to be a further extention of the
"theory" doctrine and a sure-fire method of eliminating unfair labor
practices for employer-respondents.
In any event the Frazier issue was here fully and completely litigated.
Respondent makes no clam to the contrary.
as In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall , as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
27 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insure that said notices are not altered , defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
In accordance with the recommendation heretofore
made, I hereby recommend that the objections to the
election of June 19-20 be sustained, the election set aside,
and a new election ordered.
IT IS FURTHER RECOMMENDED that, unless Respondent
notify said Regional Director within 20 days from the
receipt hereof that it will take the action here ordered, the
Board issue an order directing Respondent to take the
action here ordered.