Carnation Co. Distribution Center

National Labor Relations Board - Board Decisions

Jun 25, 1970

183 N.L.R.B. 1096 (N.L.R.B. 1970)

1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carnation Company Distribution Center and Local
Union No. 414, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America. Case 25-CA-3500
June 25, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On March 20, 1970, Trial Examiner A. Norman
Somers issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in certain unfair labor practices alleged in
the complaint and recommending that it cease and
desist therefrom and take certain affirmative ac-
tion, as set forth in the attached Trial Examiner's
Decision. He further found that the Respondent
had not engaged in certain other unfair labor prac-
tices alleged in the complaint and recommended
dismissal as to them. Thereafter the General Coun-
sel filed exceptions and a brief in support, and the
Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has 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, the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as modified herein.'
AMENDED CONCLUSIONS OF LAW
We shall strike paragraph 4 of the Trial Ex-
aminer's Conclusions of Law and in paragraph 1,
after the words "could lose their jobs," delete the
"and" and insert the following:
... by threatening employees that Respondent
would be harder on them if the Union got in
and by implementing this threat immediately
by initiating a series of written warnings for
rule infractions, and by ....
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent Carnation Company
Distribution Center, Fort Wayne, Indiana, its of-
ficers, agents , successors, and assigns, shall take the
action set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
1. Add to the end of paragrah 1(d) the follow-
ing:
"and immediately initiating a series of written
warnings for rule infractions to implement the
threat of harder working conditions because of the
Union."
2. Renumber paragraphs 2(a) as 2(b), and 2(b)
as 2(c), and add the following as 2(a):
"(a) Remove from the files of the employees
concerned the written warnings in evidence here
which were issued by the Respondent in the period
September 3 to December 23, 1969."
3. Add the following to the Appendix attached
to the Trial Examiner's Decision at the end of the
third indented paragraph:
"or initiate written warnings to implement a
threat of harder working conditions because of the
Union."
4. Add as a new indented paragraph immediately
following the above addition:
WE WILL remove from the files of the em-
ployees concerned the written warnings which
we issued in the period September 3 to
December 23, 1969, to implement a threat of
harder working conditions because of the
Union.
Unlike the Trial Examiner , who viewed certain remarks made by
Manager McCullar to employees on August 25 as cumulative , we find the
following to be additional violations of Sec 8(a)(I) (I) McCullar's re-
marks concerning the negotiability of existing insurance benefits should the
Union come in, which in the context of earlier statements that such benefits
would be adversely affected is tantamount to threatening that bargaining-
at least as to insurance-"would be from scratch", and (2 ) McCullar's
warning to employees that with the Union in the warehouse " management
would be even more on the employees rear ends than the employees
thought " Also, in connection with the second threat above, we, contrary
to the Trial Examiner , find the series of written warnings for rule infrac-
tions sent by letter to various employees in the period September 3 to
December 23, 1969, to be a violation of 8(a)( I) inasmuch as they tend to
implement the Respondent 's August 25 threat to be harder on the em-
ployees because of the Union, and thereby to invade the Sec 7 rights of
employees
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A. NORMAN SOMERS, Trial Examiner: This case
was heard before me in Fort Wayne, Indiana, on
January 7 and 8, 1970, on complaint of the General
Counsel issued November 5 on charges filed by the
Union on August 25, 1969. The complaint alleges
acts of interference, restraint, and coercion by
183 NLRB No. 110
CARNATION. COMPANY
Respondent in violation of Section 8(a)(1) and
conduct in alleged violation of Section 8(a)(3) and
(1), in the form of the discharge of two employees
(Calvin Blosser and James Smith), claimed by the
General Counsel to be discriminatory, and the im-
position of work rules and reprimands and warnings
on employees generally, that the General Counsel
claims to be in reprisal over the employees' interest
in the Union. The parties waived oral argument,
and counsel for the General Counsel and Respond-
ent have submitted briefs, which have been duly
considered. On the entire record and my observa-
tion of the witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, Carnation Company Distribution
Center (sometimes called the Company or the
Center), is a Delaware corporation. It is one of
several distribution centers for products of Carna-
tion. This center, Respondent herein, is located in
Fort Wayne, Indiana, and receives from outside In-
diana at least $50,000 worth of Carnation food
products. It is conceded and I find that Respondent
Center is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, Local Union No. 414 of the
Teamsters, is a labor organization within the mean-
ing of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Framework of Events
The events here span a period from late May
1969, when Resing the employees organized. On
June 30, Parker saw Blosser at his home, gave
Blosser some 25 to 30 union pamphlets to pass out
among the employees, and arranged for a meeting
to be held among the employees in Blosser's home
on July 2. That meeting was canceled when Blosser
called Parker and informed him that Respondent
"caught wind" of the union activity and the em-
ployees wanted to hold off their union affiliation for
awhile. Early in August, union activity was
resumed. On August 19 the Union wrote Respond-
ent claiming majority designation and demanding
recognition as exclusive bargaining representative.
On August 25, the Union filed a representation
petition. A Stipulation for Certification Upon Con-
sent Election was approved on September 18, and
an election held on October 6, which the Union
' Respondent's brief indicates that bargaining has since been completed
and the employees have ratified a proposed contract
' Of the six employees who testified, four ( Bill Horner , Dave Sutherby,
Darwin Romey, and John Smart), are still employed by Respondent
1097
won, after which it was certified on October 14.
Contract negotiations were in process at the time of
the hearing.
The alleged violations concern the activities of
David McCullar, manager of Respondent, from the
time of its establishment as a warehouse in May
1969.
B. Interference, Restraint, and Coercion
1. The prehire interviews
When Respondent was staffing its work force in
late May and early June, Manager McCullar had
separate interviews with each employee hired. He
discussed with each the rate of pay, the mechanics
of the work (a forklift operation in unloading box-
cars and storing the products) and, as he admitted,
asked each employee his preference concerning a
union in the place. Although he at first testified that
this came in response to questions the employees
put to him, he later admitted that with the excep-
tion of Romey, who asked whether Respondent had
a union, it was he who initiated the reference to a
union.' Each employee testified he answered he
could work with or without a union , whereupon
McCullar told them Respondent was nonunion and
in varying form told each that he was opposed to a
union and would try to see that it stayed that way.
2. The conversations initiated by McCullar during
the organizing periods
a. The employees spoken to
McCullar's statements at the prehire stage are
appraised in the context of his statement to em-
ployees during the earlier organizational venture of
late June and again in the later ( and successful) or-
ganizational venture in August . He spoke to John-
son in June and to Horner , Romey, and James At-
kins in June and again in August . It is not disputed
that McCullar initiated the conversations in each
instance , nor is there any dispute concerning what
was said ( except as otherwise indicated).
b. The conversations in June
Johnson, on being summoned to the office, was
first asked by McCullar about an applicant who had
named Johnson as a reference, and Johnson told
him what he knew of him. McCullar replied,
"We're grown men, let's not try to fool each other
and play dumb. You know what I mean.... I know
they are trying to bring a union in here and there
has been a union man in here ." McCullar then
asked Johnson whether he thought he "need[ed] a
Blosser, as earlier mentioned, whose termination occurred on August 23, is
alleged to be a discrtmtnatee Rex Johnson was terminated in October and
the validity of that discharge is not challenged
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union in here at the present time ," to which John-
son replied the Union had no chance now, but if a
majority should later want a union , he would go
along . McCullar then said that with a union, the
employees would be wasting part of their earnings
with payment of dues which otherwise would be
"good, clear beer money," and added that "if the
union did get in , it was the company 's prerogative
to take away the insurance benefits, which he said
most likely would happen." McCullar stated that
the employee behind the union venture was Suther-
by because as a former truckdriver and member of
the Teamsters , he valued the pension.
Horner, on entering the office, was first asked by
McCullar how he was coming along in unloading
boxcars. Horner replied "okay," and as he was
leaving McCullar asked, "What about the union?"
Horner too professed ignorance, whereupon Mc-
Cullar replied that he "didn't pull any strings with
[Horner], so [Horner] shouldn't pull any with him,
that he knew there was a union trying to be or-
ganized, and he knew who was behind it." McCul-
lar added that "he understood there was supposed
to be a meeting at Blosser's house." Horner
professed he knew nothing about that too and Mc-
Cullar then commented that "he didn't understand
why Cal (Blosser) was for a union, but he knew
that Dave Sutherby was for a union because of his
pension."3
Atkins was asked by McCullar to his office.
Romey was approached by McCullar at his place of
work . McCullar , without preliminaries , asked each
if he knew about union activities and each an-
swered (truthfully in each case) he did not. In talk-
ing to Atkins, McCullar said he understood there
was union activity going on , that a stranger had en-
tered the plant without authorization , and added
that he "could fire a couple of guys" and the union
activity would be stopped. McCullar told Atkins he
was a "little more level headed than some other
employees," and asked that he "help " him "talk
[the Union] down." He then told Atkins, "if you
hear anything about the union activity would you
let me know." McCullar also asked "what a truck
driver's union could do for us," and stated "they
were nonunion , and come hell or high water they
were going to remain that way." In his conversation
with Romey, when that employee said he had not
known of union activity, McCullar asked him to let
him know if he heard anything, which Romey
agreed he would do.4
c. The conversations in August
When union organization was resumed in August,
S Blosser testified that Horner and Sutherby were the source of his infor-
mation on which he based his call to Business Agent Parker canceling the
meeting because management had caught wind of the union activity and
Horner, who signed a union authorization card on
August 14, was called in by McCullar shortly after-
wards. McCullar first asked Horner about a money
shortage in a car which he had loaded. After
Horner explained this to McCullar's satisfaction,
McCullar asked Horner about the Union. As in the
conversation in June, Horner denied he knew of it.
McCullar then told him he knew Horner had signed
a card, as had nearly all except a "couple of em-
ployees," whereupon Horner mentioned that one of
these had just signed, so that all except one had
now signed up. McCullar said that if a union came
in the Company would no longer pay for their in-
surance and the employees would be paying for it,
and further that "if we (the employees) thought
they (the Company) were on our ass then, then
they would really be on our ass after the union
came in."
Romey signed a union card on August 16. About
a week later, McCullar called Romey into his office
and asked him about the "morale of the men,"
referring to what their grievances were which ac-
counted for their turning to the Union. (There is no
testimony concerning what Romey replied.) Mc-
Cullar further stated that union or no union, "if a
guy wasn't doing his job he would fire him." When
Romey was about to leave, McCullar told him that
if he should be asked why he was in McCullar's of-
fice, he should reply he "was up there talking about
going on days."
Atkins was called into the office by McCullar on
August 18. McCullar began by telling Atkins about
the scope of his insurance coverage concerning
which Atkins had some time earlier inquired. Mc-
Cullar informed Atkins the news was good and that
it had "cost quite a bit of money" in telephone calls
to obtain the information. When Atkins was on his
way out, McCullar asked him, as he had done in
June, "if he knew about this union activity that was
going on." Atkins this time replied that he did, and
added that he had himself signed up employees. A
discussion ensued concerning "aspects of union,"
in which McCullar said "he couldn't see why we
needed one, that the door was always open." There
followed a discussion, as Atkins further testified,
about "the possibility of the employer (sic)
representing the group or an independent union, an
employees' union to talk to him." Atkins testified
he did not recall who first mentioned an indepen-
dent union, and McCullar's testimony, which I
credit, was that Atkins did. It is not disputed, how-
ever, that McCullar strongly encouraged the
proposal and, as Atkins testified, McCullar sug-
gested he talk to other employees about the inde-
pendent union, and stated "he would rather see an
employer speaking for the group, or an indepen-
the employees were scared to go ahead
" Romey testified he gave no information to McCullar , as there was none
to give As earlier stated, union organization abated about that time
CARNATION COMPANY
dent union" than the Charging Union.5 According
to Atkins' further undenied testimony, McCullar
added that if the Union came in, "the personal
aspect of the employer's would be changed, that
they could discharge employees for various
reasons," and further, that the insurance benefits
"would be one of the first things to go."
3. Conclusions concerning 8(a)(1)
McCullar's interrogation of employees concern-
ing their union preference during the prehire inter-
views and his interrogation of employees concern-
ing their knowledge of union organization, men-
tioned in the context of his own opposition to a
union, and his later discussions with the employees
during the Union's organizing periods, had a coer-
cive connotation. These included questioning the
employees, when called into the office, concerning
what they knew of union organization, and linking
this with (a) impression of surveillance in the
specific knowledge McCullar conveyed to Johnson,
Horner, and Atkins regarding how much McCullar
knew of union organizing and who was behind , (b)
recruiting employees into surveillance of union ac-
tivity in the request he made of Atkins and Romey
to pass on to him what they might learn of union
activity; (c) threatening that if the Union came in it
would entail loss or impairment of insurance
benefits, possible discharge, and imposition of
harder working conditions (conversations with
Johnson, Horner, and Atkins) (d) encouragement
of formation of an inside union in lieu of their
present affiliation with the outside union (in Mc-
Cullar's August conversation with Atkins) and (e)
interrogation of Romey concerning employees'
"morale" against the background of his earlier
request to Romey that he let him know what he
learned of union activity, and adjuring him to reply
with a half-truth to any questions by employees as
to the subject of his talk to McCullar.
The above are recognized acts of interference,
restraint, and coercion in violation of Section
8(a)(1).6
C. Other Alleged Violations
1. Discussions with the employees in the
lunchroom
The General Counsel relies also on certain state-
ments made by McCullar to the day-shift em-
ployees on or about August 25 in the lunchroom.
' McCullar testified that Atkins said he had been talking with employees
about forming their own exclusive union and that he replied "it was okay
with him , that I knew of plants where they even had every step of a
grievance program without an outside bargaining agent representing the
employees , that I knew of safety committees and that I would be receptive
to any time the employees wanted to talk with me " As to this, the proba-
bilities favor Atkins' version that McCullar suggested he talk to the em-
ployees about the independent union It was McCullar who initiated the
conversation by his inquiry concerning Atkins' knowledge of the activity of
the Charging Union and his baleful comment concerning the need for one
since "the door was always open "
1099
McCullar came there at the employees' request to
answer questions. In essence , the employees wanted
to know how conditions with Respondent com-
pared with those of other companies in the area.
They asked about wages, insurance benefits, and
grievances, particularly about the absence of a
break between the end of the regular 8-hour shift
and the start of the overtime. McCullar stated the
conditions under Respondent were at least as good
as those with other employers, and further that con-
ditions were not set by him but by his superiors in
Los Angeles. In the discussion of insurance
benefits, McCullar did state that with a union as
bargaining agent , insurance benefits "would
become negotiable" between the Union and the
Company's labor relations department. This state-
ment , taken against McCullar's previously
described statements to Johnson, Horner, and At-
kins, how insurance would be adversely affected if
the Union came in, are comparable to an em-
ployer's statement that if a union came in, working
conditions would "start from scratch," which has
been held to be coercive. Surprenant Manufactur-
ing Co. v. N.L.R.B. and N.L.R.B. v. Marsh Super-
markets (supra, fn. 6). Also, at the completion of
the question and answer session , McCullar on his
own admonished the employees that they should
toe the mark by observing company rules against
negligence in handling of products in the cars and
untidy condition of the "bays" (storage containers
for the products). The employees testified that Mc-
Cullar's comment consisted of a warning that with
the Union in the warehouse, the rules would be en-
forced more strictly-which last would be in line
with McCullar's statement to Horner, in the earthy
language that that employee ascribed to the
manager, that with the Union in the place, manage-
ment would be even more on the employees'
rearends than the employees now thought. Those
items hardly add to the violations already found
and, in view of their slight ambivalence, there is no
need to labor them to final resolutions since they
would not affect the remedy on the violations as
found. I accordingly make no finding either way
concerning the legal effect of that lunchroom
discussion.
2. The terminations of Smith and Blosser
a. Preliminary comment
The terminations of Smith and Blosser, as earlier
stated, occurred, respectively, on August 21 and
' E g, The Everite Door Corp, 171 NLRB 56, Efco Corporation, 150
NLRB 1505, 1509 (interrogation of applicant), impressions of surveillance
(J P Stevens & Co , Inc , 167 NLRB 266), recruiting employees to engage
in surveillance in the form or request to be informers (Teamsters Local
901-Interstate Air Service Corp, 167 NLRB 135, N L R.B v Yale Manu-
facturing Company, Inc, 356 F 2d 69, 71 (C A 1), N L R B v Saginaw
Furniture Shops, Inc , 343 F 2d 515, 517 (C A 7), N L R B v Trumbull
Asphalt Co , 314 F 2d 382 (C A 7)), threat of loss of benefits (Surprenant
Manufacturing Co. v NLRB , 341 F 2d 756, 761 (C A 6), N L.R.B v
Marsh Supermarkets , Inc , 327 F 2d 109, 112 (C A 7 ) ); and threat of loss
ofjobs N L R.B v Merchants Police, Inc , 313 F 2d 310,312 (C A 7)
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
23. This was when the union organizing venture
had resumed and reached its height, and McCullar
had been expressing to employees he called into his
office a baleful view of what lay in store for the em-
ployees if the Union were selected. The General
Counsel claims Respondent's jaundiced view of the
Union accounted for the terminations of Smith and
Blosser . We treat each in the order of their ter-
minations.
b. Smith
Smith started with Respondent on August 11.
When he was hired, Smith was interviewed by Mc-
Cullar in the same manner as the employees at the
time Respondent was established, and the discus-
sion with Smith regarding a union was substantially
similar to the previously described discussions with
the earlier group of employees, when they were
hired.
Smith signed a union authorization card on
Saturday, August 16. On the afternoon of Monday,
August 18, he attended a union meeting , and on the
evening of that day, while working on the night
shift, he discussed the Union with several em-
ployees. Smith testified that Bill Bollinger, the
night-shift supervisor, was then sitting no more than
2 or 3 feet away and heard the discussion. This, the
General Counsel contends, was Smith's undoing.
On the following night, August 19, Smith admit-
tedly had trouble handling a difficult carload, and
Bollinger upbraided him for not having followed in-
structions and thus damaging some of the products.
Toward the end of that regular shift, Smith asked to
be excused from overtime because he was not feel-
ing well , and Bollinger refused saying that they
were all tired but there was work to do. Smith
replied he was leaving at the end of the regular shift
anyway, and Bollinger then told him to call McCul-
lar before he came back to work. Smith called Mc-
Cullar the morning of August 21 (he had had his
wife call in sick on the 20th). He told McCullar he
would come in that day, and McCullar told him he
was terminated and that he would be paid off on
Monday. When he received his pay, Smith was
handed the following letter from McCullar, dated
August 21:
A number of disturbing factors concerning
your work habits have been called to my atten-
tion.
You were late for work two days in a row
last week, August 14, and August 15.
It was called to my attention by the super-
visor that you were given instructions when un-
loading a car to extend the rack on the pul pak
and grasp the slip sheet lip with the gripper bar
and to lift and drive the unit. You were later
observed upon two different occasions trying
to scoop the top unit by running your plattens
under the unit without the aid of the gripper
bar. This action caused considerable product
damage to both the top and bottom unit. This
was a direct violation of the supervisor's in-
structions to you in operating the machine. It
was also a direct violation of the posted work
rules.
A check of the bay that you were unloading
into reveals that you seem to care nothing
about the caliber of your work. The bay was
put in very poorly and the work was very slop-
py.
Another disturbing factor is your un-
willingness to work overtime. On August 14,
you left work without informing the supervisor
where you were going or that you were leaving
work. On August 19, at 2:00 a.m., you in-
formed the supervisor that you were going
home . The supervisor, in turn, informed you
that we worked overtime and that you were ex-
pected to work overtime and the work was
there for you to do. You left the building any-
way and without a reasonable excuse.
Your actions lead me no choice but to ter-
minate your service, effective 2:00 a.m. on Au-
gust 19, the time you walked out of the build-
ing.
Bollinger testified that at the end of that shift of
August 19, he left a memorandum for McCullar
complaining of Smith and recommending his
dismissal. The next morning, when McCullar read
Bollinger's memorandum, he called Bollinger at his
home, for particulars. Bollinger testified, in effect,
that he told McCullar that although Smith at the
beginning had shown interest in the job, his per-
formance deteriorated in the manner later em-
bodied in McCullar's letter. Bollinger added that
Smith exhibited both indifference to the job and
resentment of supervision.
Smith admitted he had come in late on the 14th
and 15th, and testified that he did not remember
whether on the 14th he had given prior notice of
having missed overtime. He denied having been
criticized concerning his work other than on the
19th, but in respect to the 19th, he testified he
thought Bollinger's criticism was unjustified, since
Bollinger did as sorry a job showing him how to
perform as Smith did in performing.
Bollinger, who is no longer with Respondent (he
left in September for other employment), left no
question of his sincerity when he described the
travail he endured, or thought he did, in trying to
make Smith get with it on the job. Whether one
agrees with Bollinger's appraisal of Smith, it seems
clear that Bollinger genuinely felt he had had about
as much as he wanted to take from Smith in the
quality of his performance. As to the luncheon
discussion on the 18th, that Smith and other em-
ployees had within earshot of Bollinger, Bollinger
testified he had no recollection of it. The General
Counsel's witnesses testified that the discussion of
August 18 was not unique, since there had been
continued discussion concerning the Union, and
CARNATION COMPANY
that Bollinger 's appearance in the lunchroom on
the 18th also was not unique , since he frequently
entered the lunchroom to eat or to take food to
carry out.
Smith testified that on the 18th , Bollinger more
than merely heard the discussion concerning the
Union but had in fact been drawn into it. He
testified that Romey, who was one of a group of
employees who participated in the discussion,
asked Bollinger his opinion . The men had been
discussing whether, if the Union came in, insurance
would be a " negotiable item." Smith testified
Romey asked Bollinger what he thought but
Bollinger " avoided the question ." The "avoiding"
consisted of Bollinger 's telling the men there were
several boxcars to be unloaded and that they should
get to them when lunch was over.
Bollinger 's response was in line with a statement
he had earlier made to McCullar when the latter
mentioned the fact that the Union had resumed or-
ganizing the men . Bollinger, as he testified , replied
he "could not care less. "7 Confirming this is Bollin-
ger's own stated background as a Teamsters
member , from which he has an "honorable"
withdrawal because of ineligibility due to his taking
a supervisory position and the record showing that
Bollinger never spoke to any employee concerning
the Union or expressed any opinion concerning it. I
find that Bollinger , in making his adverse recom-
mendation to McCullar , acted in accordance with
his genuine opinion of Smith 's fitness to continue
on the job.
As to whether McCullar would nevertheless have
retained Smith but for his union affiliation, there
was nothing to distinguish Smith on that score from
the rest of the employees, all but one of whom had
already signed up (of which employee Horner had
informed McCullar in a conversation previously
described). The General Counsel states, however,
that Smith had been given no prior discharge warn-
ing. However , he had been orally reprimanded, as
Smith admits . Futher , he had had a rather impres-
sive accumulation of delinquencies for an employee
at this threshold stage of his tenure, which would
account for McCullar 's agreeing with his supervisor
that he was not worth holding onto any further, at
least not so much as to warrant his overriding his
supervisor 's recommendation , which , I have found,
was honestly given.
I accordingly conclude that the discharge of
Smith was not antiunion motivated , and hence not
a violation of Section 8(a)(3) or (1), as alleged.
c. Blosser
Blosser 's employment started May 27. It ended at
noon of August 23, when he left for home after
completing 4-1/2 of the 8 hours of overtime
1101
scheduled for that day, a Saturday.
As earlier appears, Blosser was among the em-
ployees first hired by Respondent and questioned
by McCullar concerning union preference and in-
formed by McCullar concerning the latter 's aver-
sion to a union . As also appears , Blosser was a key
figure in the initial union venture in June, and Mc-
Cullar mentioned him in first of the two previously
described conversations he had with employee
Horner . When union organizing resumed , Blosser
signed a card on August 14.
So far as the record shows, Blosser 's performance
on the job had not met with reprimand or'adverse
comment , whether on the score of competence or
punctuality or regularity of attendance . Saturday,
August 23, had been scheduled during midweek for
a full 8-hour day shift. This was apart from the
regular 5-day week . Blosser during that week, in
addition to his regular time , had put in the
scheduled overtime , consisting of 6 to 8 hours. On
the Saturday which followed , Blosser worked 4-1/2
hours and then asked McCullar to excuse him for
the rest of the shift because he had things to do at
home . McCullar refused , pointing to the fact that
the full shift had been previously scheduled . Blosser
repeated that there was something at home he ur-
gently had to attend to. Then , according to Blosser,
McCullar remarked that "work comes before your
family sometimes" and stated , " If you have to go
home you'll lose your job because the work is here
and it has to be done." Blosser testified he repeated
he "had to go home" and added that "if that was
his situation , or his last on it , I would have to come
in Thursday and pick up my check," and that Mc-
Cullar replied " okay." Blosser testified this was the
whole of the conversation and that McCullar did
not ask him to specify the reason . Blosser went
home and he was paid off in midweek as stated. He
did not return to the job after that Saturday, and
neither has there been any communication by
either on the part of the other about returning to
work.
McCullar's version (corroborated by Kemerling,
his assistant , and by Ramsey, a supervisor, who
happened to have been there at the time) was that
when Blosser said he had things to do or had
"responsibilities " at home, McCullar told him over-
time had been announced early so that he could
take care of his "responsibilities" and that on
Friday there had been no overtime so that the em-
ployees could take care of their responsibilities;
that Blosser then asked , " Are you firing me?" and
McCullar replied he was not firing him but the
work had to be done, and then asked Blosser to
give him a specific reason why he had to go home,
whereupon Blosser repeated , " I have things to take
care of," and he again asked McCullar, "Are you
firing me?" to which McCullar replied "No. But if
' The word " not" was omitted in the stenographic transcript of the hear-
ing and it is hereby inserted as a correction Tr 334, 1 10
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you leave, we will consider you as having walked
off the job." McCullar testified that Blosser then
turned and as he was leaving, said, "I'll be in next
Thursday to pick up my paycheck." As stated, this
was the last time Blosser worked for Respondent
and the last time they ever communicated with
each other.
Blosser's specific reason for leaving for home was
explained by him for the first time at the hearing in
this case on his redirect examination. Blosser ex-
plained that there had been a leak in the mobile
home he occupied which was ruining the bedroom
carpet and it needed fixing to avoid more damage.
That condition arose on Thursday. As to why he
thus did not give prior notice of his intention to
take time off on Saturday, Blosser testified that
when the leak occurred, he did something to avoid
more damage, and "I figured I would wait until the
weekend before I would repair it." This still did not
answer why he had not asked for the time off be-
fore the weekend began. He then testified, "I had
hopes of being able to take care of it during the
weekend and I was not able to."
Blosser did not elaborate on this. He had worked
overtime on Thursday, which would explain his ina-
bility to make the repairs that day. However, on
Friday there had been no overtime, as previously
stated. The regular day shift ends at 3:30, and
Blosser testified he then gets home at 4:15. This left
plenty of daylight on that August day. Further, if he
had completed the shift on Saturday, and then got-
ten home at 4:15, he would still have had the
remainder of the weekend, including Sunday, to
make the repairs.
However, if Blosser nevertheless felt that the
need was so urgent that he had to give up the
remaining hours on the Saturday shift to do the
repairs, it is rather strange that he did not specifi-
cally state the reason for having to leave, even if
McCullar had not asked him. Giving point to this
was Blosser's admission that on prior occasions
when he had specified the reason, he had been
given time off as requested. By way of example,
Blosser cited an instance where he had been ex-
cused when he told management he had to attend
to "a legal matter involved in an automobile ac-
cident." Blosser's failure to specify the reason in
this instance places him in this dilemma. Either he
was capriciously withholding the specific reason
despite the genuineness of his sense of urgency, or
he was designedly withholding it because he real-
ized that if he stated the reason, it would not sup-
port the sense of urgency he was asserting for it.
The result is that McCullar's opposition to the
Union is not here connected up with Blosser's ter-
mination. This is so whether we adopt Blosser's ver-
sion that McCullar told him outright he would be
discharged if he went home, or McCullar's version
that he told him he was not firing him, but if
Blosser left he would be regarded as "having
walked off the job." McCullar being something of a
precisionist, his version seems to fit his style, and I
credit it. Yet the two versions mean the same, how-
ever much Respondent prefers to call the termina-
tion a quit instead of a discharge. McCullar, in
telling Blosser to complete the shift or be deemed
insubordinate, was giving Blosser a Hobson's
choice. The question is whether, despite the
"choice" thus given Blosser, Respondent dis-
criminated against him. Blosser's own version dis-
putes it. On his own testimony, he knew that to be
given time off, he had to specify the reason. He
failed to do so and McCullar then refused to excuse
him. In leaving without excuse, he acknowledged
his own act of insubordination.
The only basis on which the claim of discrimina-
tion could rest would be that, even without a valid
excuse, McCullar would normally have indulged
him because of his hitherto unblemished work his-
tory and the fact that there were just a few hours
left to what had been a rather hard week's work.
There is no indication that McCullar had ever in-
dulged any other employee in that manner. This
was a peak period in which Respondent particularly
needed the work it scheduled. Even if otherwise,
the picture here is that of a hard employer but not
one engaging in discrimination. By way of example,
in the previously described lunchroom talk held at
the employees' request, the employees grieved, un-
successfully, about the absence of any break
between the end of the regular shift and the start of
overtime. This too was a hard condition but not a
discrimination. The employees' recourse in that in-
stance lay not in a claim of unfair labor practice
(which in respect to this item was never made), but
in exercising their protected right under Section 7
of pooling their bargaining powers in dealing with
their employer. They did so, with apparent success
as the outcome of the election and ensuing contract
negotiations would indicate.
The conclusion is that McCullar's opposition to
the Union was not a motivating factor in the ter-
mination of Blosser, and so the termination was not
in violation of Section 8(a)(3) and (1) of the Act.
3. The warning letters as a claimed unfair labor
practice
The remainder of the case concerns letters
Respondent has been sending various employees
concerning infractions as they arise , with warning
of further disciplinary action in the event of their
repetition . They range from September 3 through
about the end of the year (shortly before our hear-
ing began ) and cover numerous employees. They
cover specific items of lateness, absence without
calling in beforehand, manner of handling the
mechanics of unloading boxcars, etc . The com-
plaint originally characterized them as
"unwarranted ." The only specific item of that kind
was a reprimand letter to Sutherby on October 2. It
concerned a talk Sutherby had with a supervisor,
followed by one with McCullar 's assistant . Without
CARNATION COMPANY
going into details, Sutherby thought the criticism in
the letter was unwarranted , and he complained to
McCullar about it. McCullar , after hearing him, de-
cided that he agreed with his assistant and that the
reprimand in the letter would stand . The General
Counsel no longer disputes the actual contents of
any of these letters , including even the one to
Sutherby . Of the employees to whom the warning
letters beginning September 3 were sent , none have
been discharged , except Rex Johnson . It is not
disputed that the discharge of Johnson was for good
cause and that the letters sent to him were valid re-
minders of lateness in coming to work and warnings
of discharge in the event they persisted , which cul-
minated in a final or fourth letter discharging him
because of his continued lateness after such
warnings.
The evil the General Counsel finds in them is that
since Respondent had not sent any such letters to
employees until the letter of discharge it sent to
Smith on August 2 1, it follows that the warning let-
ters it sent to employees from there on were illicitly
motivated whatever their content. This exemplifies
the post hoc fallacy in its quintessence.
The claim that the warning letters violated any
provision of the Act is not sustained.
On the foregoing findings and conclusions, I
hereby state the following:
CONCLUSIONS OF LAW
1. By interrogating employees concerning their
union preference or affiliation as well as the affilia-
tion of other employees in a context of stated op-
positions to the Union, by creating an impression of
surveillance of union activity, by requesting em-
ployees to inform Respondent concerning what
they might learn of union activity, by warnings to
employees that if the Union came in they would
lose present benefits and could lose their jobs, and
encouraging employees to form an inside union as a
substitute for their affiliation or interest in the
Charging Union, Respondent interfered with,
restrained, and coerced employees in the exercise
of their rights under Section 7, thereby engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
2. Said unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the
Act.
3. The terminations of James Smith and Calvin
Blosser were not in violation of Section 8(a)(3) or
(I) of the Act.
4. The warning letters to employees were not un-
fair labor practices within the meaning of the Act.
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 In the event
1103
THE REMEDY
The recommended Order will require that
Respondent refrain from repeating the violations as
found, and, in view of the breadth and character of
the infringements found, from in any other manner
interfering with , restraining , or coercing employees
in the exercise of the rights guaranteed to em-
ployees under the Act.
Upon the basis of the above findings of fact, con-
clusions of law , and the entire record in the case,
and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I hereby recom-
mend that the Board issue the following:
ORDER
Carnation Company Distribution Center, its of-
ficers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concern-
ing their or other employees' preference or affilia-
tion in regards to the above Union or any other
labor organization.
(b) Creating an impression of surveillance or en-
gaging in surveillance or recruiting employees to
engage in surveillance of union activities of em-
ployees.
(c) Requesting any employees to inform
Respondent concerning what they might learn re-
garding union activity.
(d) Threatening employees with loss of benefits
or jobs, or with harder working conditions, if they
are represented by the above Union or any other
labor organization.
(e) Encouraging employees to form or organize
a union as a substitute for or in replacement of
their existing union affiliation.
(f) In any other manner interfering with,
restraining , or coercing employees in the exercise
of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action, which it
is found will effectuate the policies of the Act:
(a) Post at its premises in Fort Wayne , Indiana,
copies of the attached notice marked
"Appendix."8 Copies of said notice, on forms pro-
vided by the Regional Director for Region 25, after
being duly signed by an authorized representative
of Respondent , shall be posted by it immediately
upon receipt thereof, and be maintained - by it for
60 consecutive days thereafter , in cospicuous
places , including all places where notices to em-
ployees are customarily posted . Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered , defaced, or covered by any
other material.
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 Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for Region 25,
in writing, within 20 days from the date of the
receipt of this Decision, what steps the Respondent
has taken to comply herewith.9
The complaint is dismissed in respect to all other
allegations not herein found.
" 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 25, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
above Union or any other labor organization.
WE WILL NOT coercively encourage em-
ployees to form or organize an inside union as
a substitute for or in replacement of their exist-
ing union affiliation or support.
WE WILL NOT in any other manner, interfere
with, restrain, or coerce employees in the exer-
cise of their rights to self-organization, to form
labor organizations, to join or assist the above-
named Union, or any other labor organization,
to bargain collectively through representatives
of their own choosing, and to engage in con-
certed activities for the purpose of collective
bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively ask any employees
concerning their preference of affiliation, or of
any other employees' affiliation with or sup-
port of Local Union 414, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or of
any other labor organization.
WE WILL NOT engage or create the impres-
sion of engaging in surveillance or ask any em-
ployees to engage in surveillance of employees'
union activities, or ask any employees to in-
form us concerning what they might learn
about union activity of employees.
WE WILL NOT threaten employees with loss
of benefits or jobs or with harder working con-
ditions as a result of being represented by the
CARNATION COMPANY
DISTRIBUTION CENTER
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 614 ISTA Center, 150 West Market
Street, Indianapolis, Indiana 46204, Telephone
317-633-8921.