Adams Potato Chips, Inc.

National Labor Relations Board - Board Decisions

May 22, 1969

176 N.L.R.B. 130 (N.L.R.B. 1969)

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adams Potato Chips , Inc. and Teamsters and
Chauffeurs , Local Union No . 580, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Ind. Case
7-CA-6929
May 22, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On February 26, 1969, Trial Examiner John F.
Funke issued his Decision in the above-entitled
proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner' s Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief. The General
Counsel filed a brief in answer to the Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board had delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed. The Board has considered the Trial
Examiner ' s Decision , the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings ,' conclusions , and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Adams Potato
Chips, Inc., Lansing, Michigan, its officers, agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order.
In last paragraph of sec . II, A, of his Decision, the Trial Examiner
inadvertently referred to Karr rather than Brett (correct spelling Bretz) as
testifying in support of McKim 's version of the events occurring at the
August 27 meeting . We hereby correct this error.
rrhe Respondent has requested oral argument . This request is hereby
denied as the record , the exceptions and briefs adequately present the
issues and the positions of the parties.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
JOHN F . FUNKE, Trial Examiner : Upon a charge filed
August 30, 1968, by Teamsters and Chauffeurs, Local
Union No. 580 , herein Local 580, against Adams Potato
Chips, Inc., herein Adams or the Respondent , the General
Counsel issued complaint dated October 26, 1968, alleging
Respondent violated Section 8(a)(1) and (5) of the Act.
The amended answer of the Respondent denied the
commission of any unfair labor practices and denied that
Local 580 represented a majority of the employees in the
appropriate bargaining unit.
This proceeding , with the Respondent and the General
Counsel represented , was heard before me at Lansing,
Michigan , on January 23, 1969. A brief was received from
the Respondent on February 19, 1969.
Upon the entire record in this case and from my
observation of the witnesses while testifying , I make the
following:
FINDINGS AND CONCLUSIONS
1. THE MOTION FOR JUDGMENT ON THE PLEADINGS
On December 4, 1968, Trial Examiner Charles W.
Schneider issued an order granting Respondent 's request
for leave to file an amended answer and vacated in part
his previous order granting the General Counsel 's motion
for judgment on the pleadings. Summary judgment was
granted by the Trial Examiner as to paragraphs 2 to 10,
inclusive , of the complaint and denying summary
judgment as to paragraphs 1' and 11 through 16 of the
complaint.
II. THE UNFAIR LABOR PRACTICES
A. The Evidence
Following a petition filed in Case 7-RC-8230 and an
election conducted by the National Labor Relations Board
Local 580 was certified on September 20, 1967, as the
exclusive bargaining representative of Respondent's
employees in a unit described as:
All driver-salesmen employed by the Employer at its
Lansing, Michigan, place of business, excluding
production employees , office and plant clerical
employees , professional and technical employees , guards
and supervisors as defined by the Act.
I find the unit so described appropriate.
Following the certification of Local 580 bargaining
negotiations were held . Based on uncontradicted testimony
I find that the parties agreed that any contract reached by
the negotiators , Donald F . Strutz and Eugene Cawvey for
Respondent and Lloyd C. McKim for Local 580,' would
be subject to ratification by Charles Seyfert, Respondent's
president , and by vote of the employees in the bargaining
unit.
McKim testified that starting in November 1967, some
15 bargaining meetings were held , concluding with a
meeting on August 27, 1968. At this meeting McKim
submitted to Strutz a proposed contract which had twice
been unanimously rejected by the driver-salesmen.3 Both
Strutz and McKim agreed that this proposal was identical
with the one which they had agreed upon but which the
drivers had rejected. McKim discussed it with the drivers
who still wanted changes related to overages and shortages
'Par. I alleges that the charge was filed August 30, 1968, and served on
Respondent on August 31, 1968, 1 so find.
'According to McKim members of Local 580 employed by Respondent
also attended the meetings.
'G.C. Exh. 5. The original tentative agreement had been prepared by
Strutz.
176 NLRB No. 16
Adams Potato Chips
which were again rejected by Strutz. McKim requested
that the contract term be reduced from 3 years to 2 years
and this was likewise turned down.' McKim then told
Strutz that he had learned the previous night that the
inside employees received 3 weeks vacation after 10 years
of service, and that he would like to have the proposed
contract, which provided for 3 weeks after 15 years,
changed to 10 years. According to McKim, Strutz told
him that this had been company policy and that he could
agree to it without referral to Seyfert. McKim then told
the drivers another vote should be taken on the contract.
The only change was from the 15 to 10 years service
requirement which McKim stated had been agreed to by
Strutz. Six unit employees were present and voted four to
two to accept the contract. When Strutz and Cawvey
returned McKim said the employees had voted acceptance
and suggested that the contract, with the vacation clause
change, be signed. Strutz then told him that he would not
sign the contract because he did not believe Local 580
represented a majority of the employees and that the
National Labor Relations Board was going to hold
another election to determine Local 580's majority status.'
McKim said he would turn the matter over to his attorney
and no further meetings were held.
Strutz testified that after about 6 months of
negotiations tentative agreement was reached, that he
prepared a contract embodying the agreement which was
rejected unaminously by the employees and that the
employees voted five to three to strike. On or about July
30, Strutz and Cawvey, at McKim' s request , met with the
drivers to explain the contract. (Strutz testified it was the
same contract previously rejected ). It was again rejected
unaminously by the drivers. On August 27, McKim met
again and six drivers were present. McKim then presented
his own prepared version of the Respondent's prior
proposal, assuring Strutz it was identical. When McKim
suggested the vacation change Strutz told him he saw no
objection but that he would seek approval from Seyfert.
McKim also asked for a shorter term contract which was
turned down. McKim then returned to the room and later
announced that the men had approved the contract by
four to two. Strutz then told him that in view of the fact
that a decertification petition had been filed and that only
four of the drivers had approved the contract, he would
not submit it for approval.
Cawvey's testimony supported that of Strutz respecting
the necessity of taking the vacation change back to
Seyfert for approval although he admitted it was policy
for the inside employees to receive 3 weeks after 10 years.
He testified briefly as to some of the difficulties that
would be encountered in rescheduling the drivers to
provide for the change and that the change was never
submitted to Seyfert for approval.
Four drivers testified, Brett , Dolph, Karr and
Moorehead and their testimony is generally consistent
with that of the other witnesses.
Karr testified that Cawvey told McKim that the
vacation clause change was acceptable since it was a
matter of policy with respect to the other employees and
that McKim proceeded to make the change . Dolph and
Moorehead, on the other hand, stated that Strutz told
'The contract term had been an issue throughout negotiations.
'On July 18, 1968, Jack H. Karr , an employee had filed a petition for
decertification of Local 580 (Case 7-RD-773) which was dismissed by the
Regional Director for Region 7 on July 29 on the ground that the one-year
certification bar precluded an election . (G.C. Exhs. 4-a and 4-b).
131
McKim he would take the vacation clause to Seyfert for
approval.'
B. Conclusions
The sole issue providing any problem is whether
complete agreement was reached between the parties on a
contract, including the change in the vacation clause. The
testimony of the negotiators establishes that full
agreement had been reached on August 27 as to all other
terms. McKim's testimony indicates that Strutz readily
agreed to the vacation change on the ground that since the
inside employees received 3 weeks after 10 years service
there was no problem. His testimony is supported by one
of the driver-salesmen who attended the meeting. Strutz
testified he would have to take the change back to Seyfert
and he is supported by Cawvey and two of the
driver-salesmen. I do not think the issue can be decided by
weight of numbers nor does the demeanor of the chief
witnesses provide any clue. McKim, Strutz and Cawvey
not only gave every appearance of truthfulness but
apparently trusted each other. (Witness Strutz's
acceptance of McKim's assurance that his proposed
contract did not differ from that submitted by Strutz.)
This compounds the difficulty in reaching decision.
I do find, however, that complete and final agreement
was reached between the parties on August 27. This
finding is based upon the following extrinsic facts as
distinguished from the testimony:
1. The change in the vacation clause requested by
McKim was a minor one and conformed to the current
policy of the Respondent with respect to inside employees.
I see no reason why such a change would have to be
referred to Seyfert and I accept McKim's testimony that
Strutz said the change imposed no difficulty.
2. Strutz never stated that the vacation clause was the
reason for rejecting the agreement. Strutz stated that
Respondent doubted Local 580's continuing majority
status and was therefore rejecting the contract.
3. The conduct of McKim at the meeting of August 27
indicated that he would accept the contract proposed by
the Respondent if he could have it ratified by the
membership. All changes which were proposed by McKim
and refused by Respondent were discarded by McKim and
it is evident that he was willing to accept the agreement
proposed by Respondent.
I therefore find that by refusing to sign the contract
agreed upon by the parties, including the change in the
vacation clause from 15 to 10 years of service for
eligibility for a 3-week vacation, Respondent violated
Section 8(a)(5) of the Act.
I cannot accept Respondent's contention that Local 580
lost its majority status during the certification year and
that Respondent was thereby relieved of its bargaining
obligation. It is clear as any proposition in labor law can
be that an employer is not relieved of his obligation
during the certification year absent unusual circumstances.
' The mere filing of a decertification petition during the
exempted period does not serve to justify a good faith
doubt on the part of the employer.8 The allegation that
the meeting of six employees was a "rump" meeting and
'Dolph was a witness for Respondent and while his testimony, as the
record reveals, was unclear as to everything else that was said he did
clearly state that Strutz told McKim he would go to Seyfert for approval
of the vacation change . Moorehead was likewise a witness for Respondent.
'Ray Brooks v. N.L.R.B., 348 U.S. 96; Celanese Corporation of
America. 95 NLRB 664.
'Ridge Citrus Concentrate . Inc. 133 NLRB 1178.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the vote of four to two in favor of the contract
indicates a loss of majority are no more than self-serving
allegations.
I therefore find that by refusing on August 27 to
recognize and bargain with Local 580 as the exclusive
bargaining representative of its employees in the unit
found appropriate herein Respondent violated Section
8(a)(5) and (1) of the Act.
III. THE REMEDY
Having found the Respondent has engaged in and is
engaging in certain unfair labor practices it shall be
recommended that it cease and desist therefrom and take
certain affirmative action necessary to effectuate the
purposes of the Act.
Having found that Respondent and Local 580 reached
agreement on all substantive provisions of a contract
(General Counsel's Exhibit No. 5) on August 27, 1968,
and that said contract was ratified by the member
employees of Local 580 on that date it shall be
recommended that Respondent be ordered to execute, sign
and give effect to all the terms and conditions of said
contract.'
It shall be further recommended that Respondent make
the employees in the unit found appropriate herein whole
for any loss of benefits they may have suffered from
August 27, 1968, by reason of Respondent's failure to give
effect to said contract to the date of compliance with this
Recommended Order.'
Upon the foregoing findings and conclusions , and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. By refusing to execute, sign and give effect to the
contract agreed by the parties on August 27, 1968, and by
refusing , on that date to recognize Local 580 as the
exclusive bargaining agent of its employees in a unit
appropriate for the purposes of collective bargaining,
Respondent violated Section 8(a)(5) and (1) of the Act.
2. The unit appropriate for the purposes of collective
bargaining is:
All driver-salesmen employed by the Employer at its
Lansing , Michigan, place of business , excluding
production employees, office and plant clerical
employees , professional and technical employees , guards
and supervisors as defined in the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
It is hereby recommended that the Respondent, Adams
Potato Chips, Inc., its officers, agents , successors, and
assigns , shall:
1. Cease and desist from:
(a) Refusing to execute, sign and give effect to the
contract agreed upon by the parties of August 27, 1968.
'In view of this it is to be understood that the usual bargaining order
recommended herein will be prospective only and will not require
bargaining with respect to the contract I find has been agreed upon.
'5N.L.R.B. v. Joseph T. Strong d/b/a Strong Roofing d Insulating Co.,
393 U.S. 357.
(b) Refusing to recognize and bargain in good faith
with Local 580 as the exclusive collective - bargaining agent
of its employees in the unit found appropriate herein.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
and in good faith with Local 580 as the exclusive
coolective-bargaining agent of its employees in the unit
found appropriate herein.
(b) Execute, sign , and maintain in effect all the terms
and conditions of the contract agreed upon by the parties
on August 27, 1968.
(c) Make whole its employees in the unit found
appropriate herein for any loss of benefits they may have
suffered from August 27, 1968, by reason of its failure to
give effect to the terms and conditions of said contract.
(d) Post at its place of business at Lansing, Michigan,
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms to be provided by the
Regional Director for Region 7, after being duly signed by
an authorized representative of Respondent, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained for 60 consecutive days thereafter, in
conspicuous places , including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that such notices are
not altered, defaced or covered by other material.
(e) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Decision,
what steps it has taken to comply herewith."
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a decree of the United States Court of
Appeals Enforcing and Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 7, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to bargain, upon request, with
Teamsters and Chauffeurs Union No. 580, as the
exclusive bargaining agent of our employees in the unit
described as follows:
All driver-salesmen employed by us at our Lansing,
Michigan , place of business , excluding all production
employees, office and plant clerical employees,
professional and technical employees , guards and
supervisors as defined in the Act.
WE WILL sign and maintain in effect all the terms
and conditions of a contract agreed upon between Local
Union No. 580 and us on August 27, 1968, and said
contract, as agreed upon, shall provide for 3 weeks
vacation after 10 years of service.
WE WILL give effect to all the terms of said contract
from August 27, 1968, and reimburse our employees for
Adams Potato Chips 133
any loss of benefits they may have suffered because we This notice must remain posted for 60 consecutive days
failed to give effect to such contract on August 27, from the date of posting and must not be altered, defaced,
1968. or covered by any other material.
ADAMS POTATO CHIPS, If employees have any question concerning this notice
INC. or compliance with its provisions , they may communicate
(Employer) directly with the Board ' s Regional Office, 500 Book
Dated By Building , 1249 Washington Boulevard , Detroit , Michigan
(Representative ) (Title) 48226, Telephone 313-226-3244.