Farmers Union Cooperative Marketing Ass'n.

National Labor Relations Board - Board Decisions

Nov 18, 1963

145 N.L.R.B. 1 (N.L.R.B. 1963)

Farmers Union Cooperative Marketing Ass'n . and D. W. Kindle.
Case No. 17-CA-2003. November 18, 1963
DECISION AND ORDER
On November 27, 1962, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in certain unfair labor practices
alleged in the complaint and recommending that the complaint be dis-
missed in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel filed timely exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings of the Trial Examiner only to the
extent they are consistent with our Decision herein.
The complaint alleged that Respondent violated Section 8(a) (3)
and (1) of the Act by discharging D. W. Kindle for filing grievances
protesting his employment conditions. The Trial Examiner found
that Kindle was not engaged in a protected concerted activity be-
cause his grievances were "personal," and therefore concluded that
Respondent lawfully separated him from its employ. For the reasons
detailed hereinafter, we do not agree.
Respondent and the Union are parties to a collective-bargaining
agreement containing a grievance clause which covers "any matter
relating to working conditions at the plant not specifically covered by
this agreement," and "any matter involving the interpretation, ap-
plication, or violation of any provision of the agreement." Under
the procedure established for processing grievances, the aggrieved em-
ployee must first file a written grievance with his foreman. If the
grievance is not adjusted at this level, the matter is referred to the
Union's executive committee which determines whether the grievance
has sufficient merit to warrant discussing it with top level management.
Kindle was employed for 5 years with Respondent and his basic
duties were those of a dump truck operator. However, he aspired to
145 NLRB No. 5. 1
734-070-64-vol. 145--2
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
become a grain mixer and, sometime prior to October 30, 1961, bid
on the latter job . He was assigned to this position and proved in-
capable of handling it, with the result that the grain mixer's job was
again posted on October 30 and Kindle reverted to his dump truck
duties. On that date , he filed a grievance under the contract com-
plaining that he had not had sufficient opportunity to prove himself.
This was processed through the Union's executive board which suc-
ceeded in obtaining a 60-day extension for Kindle as a grain mixer.
He was again found to be incapable of performing this work and
reverted to his job as dump truck operator . On December 1 and 7
he filed grievances in due form protesting this action . The executive
committee found them lacking in merit and did not process them
further.
Thereafter , between February 16 and June 18, 1962 , Kindle filed
four additional grievances under the contract protesting certain work-
ing conditions . The executive committee found no merit in them and
declined to present them to Respondent . On the latter date, Kindle
was discharged . According to his testimony , corroborated by witness
Ray Sherman and accepted by the Trial Examiner , Kindle was in-
formed by the plant superintendent that he was discharged for filing
too many grievances. Respondent now contends , however, that Kindle
was discharged because he was incompetent , and also because he had
made a nuisance of himself by filing grievances which were purely
personal . Unlike the Trial Examiner, we find no merit in these
contentions.
While acknowledging that Kindle's grievances were filed according
to the grievance procedures set forth in the contract , and that nor-
mally the filing of a grievance by an employee under such a con-
tractual agreement is protected under Section 7 of the Act , the Trial
Examiner nevertheless concluded that these particular grievances were
"personal" and hence did not come within the protection of that
section. This conclusion was apparently predicated on the reasoning
that, after the Union's executive board had declined to press Kindle's
earlier grievances , his persistence in filing grievances under the con-
tract did not constitute a "concerted" activity.
In the 1lluehlstein and Bowman cases, upon which the General
Counsel relies and which the Trial Examiner found to be inapposite,
the Board held that, where an employee files a grievance pursuant
to a contractual grievance procedure , such filing is a "concerted"
activity which is protected under Section 7 of the Act and, if an
employer discharges him for engaging in this activity, the discharge
is unlawful . The fact that an employee utilizes a contractual griev-
ance procedure to file more than one grievance does not deprive him
of the protection of the Act. On the other hand, the Board has also
held that , where an employee does not utilize his contractual right
FARMERS UNION COOPERATIVE MARKETING ASS'N. 3
to grieve or goes "over the head" of his bargaining agent to press
his individual claim, his grievance becomes "personal " and loses the
statutory protection . The reason for this distinction seems clear.
A collective -bargaining agreement between an employer and a union
embodies the terms and conditions of employment for all employees
in the unit . Where an inequity is claimed by a single employee and
a grievance is filed under a contract to correct it, the employer's
obedience to the terms of the collective agreement is brought in issue,
and the concerted rights of all employees are at stake.
To be sure , if the Respondent herein had in fact discharged Kindle
solely for incompetency , no violation of the Act could be claimed.
According to the undenied testimony of Kindle, however, as well as
the finding of the Trial Examiner himself, Kindle's discharge was
due to his filing of grievances under the collective contract. We
hold that such activity was concerted and protected. Accordingly,
we find that the Respondent thereby violated Section 8(a) (1) and
(3) of the Act.
THE REMEDY
Having found that the Respondent violated Section 8 (a) (1) and
(3) of the Act by discharging Kindle, we shall order Respondent
to cease and desist therefrom and to offer Kindle immediate and
full reinstatement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privileges, and
to make Kindle whole for any loss of pay he may have suffered by
reason of the Respondent 's discrimination against him, by payment
to him of a sum of money equal to that which he would normally
have earned as wages from the date of his discharge to the date of
the Respondent 's offer of reinstatement , less his net earnings during
said period , in a manner consistent with Board policy set out in
F. W. Woolworth Company, 90 NLRB 289. Interest on backpay
shall be computed in the manner set forth in Isis Plumbing & Heating
Co., 138 NLRB 716.
ORDER
Upon the entire record in this proceeding , and pursuant to Section
10(c) of the National Labor Relations Act, as amended , the National
Labor Relations Board hereby orders that the Respondent , Farmers
Union Cooperative Marketing Ass'n., Kansas City, Missouri, its
officers, agents , successors, and assigns , shall: -
1. Cease and desist from :
(a) Discouraging activity having for its purpose the submission,
presentation , and processing of grievances pursuant to the terms of
a collective -bargaining agreement , by discharging , refusing to rein-
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
state, or in any other manner discriminating against any of its
employees in regard to their hire or tenure of employment, or any
term or condition of employment.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the right to self-
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection as guaran-
teed in Section 7 of the Act, or to refrain from any or all of such
activities, except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to D. W. Kindle immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority and other rights and privileges, and make him whole
for any loss of earnings he may have suffered by reason of Respond-
ent's discrimination against him as set forth in that section of this
Decision and Order entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
and all other rights under the terms of this Order.
(c) Post at its plant in Kansas City, Missouri, copies of the attached
notice marked "Appendix." 1 Copies of said notice, to be furnished by
the Regional Director for the Seventeenth Region, shall, after being
duly signed by the Respondent's authorized representative, 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 its employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Seventeenth Region,
in writing, within 10 days from the date of this Order, what steps
have been taken to comply herewith.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "A Decision and Order " the words "A
Decree of the United States Court of Appeals , Enforcing an Order."
FARMERS UNION COOPERATIVE MARKETING ASS'N.
APPENDIX
NOTICE TO ALL EMPLOYEES
5
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage our employees from engaging in ac-
tivity having for its purpose the submission , presentation, and
processing of grievances pursuant to the terms of a collective-
bargaining agreement , by discharging , refusing to reinstate, or
in any other manner discriminating against any of our employees
in regard to their hire or tenure of employment , or any term or
condition of employment.
WE WILL offer to D. W . Kindle immediate and full reinstate-
ment to his former or substantially equivalent position, Without
prejudice to his seniority and other rights and privileges, and
make him whole for any loss of pay he may have suffered by rea-
son of the discrimination by us against him.
WE WILL NOT in any like or related manner interfere with our
employees' rights guaranteed under Section 7 of the Act , except
to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of
1959.
FARMERS UNION COOPERATIVE MARKETING ASS'N.,
Evz ployer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NOTE.-We Will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States of his right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948,
as amended, rafter discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date
of posting , and must not be altered , defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City 6, Mis-
souri, Telephone No. Baltimore 1-7000, if they have any question
concerning this notice or compliance with its provisions.
F DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
In this proceeding, brought by the General Counsel of the National Labor
Relations Board, on behalf of the Board, by the Regional Director for the Seven-
teenth Region, under Section 10(b) of the National Labor Relations Act, as amended
(29 U.S.C., Sec. 151, et seq., herein called the Act), D. W. Kindle filed a charge.
Based thereon, a complaint, on August 17, 1962, was issued by the General Counsel
against the Respondent herein, Farmers Union Cooperative Marketing Ass'n., setting
forth certain alleged unfair labor practices said to have been engaged in by the
Respondent in contravention of Section 8(a)(1) and (3) and Section 2(7) of the
Act.
Pursuant to notice, this matter came on to be heard before Trial Examiner
Arthur E. Reyman at Kansas City, Missouri, on October 16, 1960. The hearing
was closed on that day. The issues were framed by the complaint and answer
timely filed on behalf of the Respondent. At the hearing, all parties were repre-
sented by counsel and each was afforded opportunity to call, examine, and cross-
examine witnesses, to participate fully, to argue orally upon the record, and to
submit proposed findings or conclusions. Briefs were filed on behalf of the
General Counsel and the Respondent, and have been carefully considered.
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 FARMERS UNION COOPERATIVE MARKETING ASS'N.
The Respondent is now, and has been at all times material herein, a Kansas
corporation with its general offices at Kansas City, Missouri, and its principal facility
at Kansas City, Kansas. It is engaged in the business of marketing grain of members
of the Association. The Respondent, during the 12 months preceding the filing
of the complaint herein, which period is representative of all times mentioned within
the complaint, shipped from its Kansas City, Kansas, plant grain valued in excess
of $50,000 to points outside the State of Kansas.
The 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.
H. THE LABOR ORGANIZATION INVOLVED
American Federation of Grain Millers, Local No. 16, AFL-CIO, is, and at all
times material herein has been, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
As noted above, Kindle, an individual, a member of Local No. 16, is the Charging
Party herein.
Counsel for the General Counsel, in his brief, has stated the issues as seen by him
in question form as follows:
A. Where a union and a company are parties to a collective bargaining
agreement which contains a grievance procedure:
1. Is filing a grievance, using this procedure, by an employee protected
activity within the meaning of Section 7?
2. If such is protected, does it lose this status if the employee does not
prevail?
B. Was Kindle discharged because he had filed a number of grievances and
specifically, the one he filed on the day of his discharge?
C. Where one is discharged for filing grievances,
1. Is such a violation of Section 8(a) (1) of the Act?
2. Is such a violation of Section 8(a) (3) of the Act?
The questions as presented are, I think, fairly set forth and define the issues as
presented at the hearing.
A collective-bargaining agreement was made and entered into on July 5, 1960,
between the members of the Association and Local Union No. 16, the agreement
being entitled "Agreement Between Terminal Elevator Companies of Greater Kansas
City and American Federation of Grain Millers, Local No 16, AFL-CIO." By its
FARMERS UNION COOPERATIVE MARKETING ASS'N. 7
terms the agreement will run until May 31 , 1964, or "at the end of any yearly period
thereafter by giving written notice by registered mail to the other party sixty (60)
days prior to May 31, 1964, or at the end of such yearly period thereafter." This
collective agreement was made with the Association and entered into individually
by its several members with Local No. 16.
In article XIV, a clear and comprehensive procedure with respect to the handling
of grievances is set forth, in which members of the Union, as well as the employer,
including the Respondent herein, have their rights fully protected . In that agree-
ment and in that article a grievance is defined to be any controversy between the
Company and the Union , (a) as to any matter relating to working conditions at
the plant not specifically covered by this agreement , and (b ) any matter involving
the interpretation , application , or violation of any provision of the agreement,
provided that no grievance involving an individual employee or employees and
not involving the entire crew "shall be considered for any purpose" unless within
7 days after the occurrence of the event out of which the grievance arises it is
presented to the plant superintendent in accordance with the provisions of para-
graph 1 of this article.
In this proceeding , no question has been raised as to the bona fides of the
signatories to this agreement . I will take official notice that the International Union,
of which Local 16 is a member, was chartered by the American Federation of Labor
in 1948. I also will take official notice of the fact that the employer signatories to
this agreement are firms well known and well established in the industry.
In evidence herein are some eight written grievances filed by Kindle , the Charging
Party, pursuant to the first step set out in the agreement . The proviso that all griev-
ances "not settled between an employee and his foreman shall be put in writing in
quadruplicate on a form provided" was observed in each case, the original and one
copy retained by the plant superintendent, the third copy forwarded to the union
business representative , and the fourth copy kept by the union steward. The grievance
filed by Kindle on December 1, 1961 , reads:
I, D. W. Kindle, feel that the above mentioned company is being unfair
inasmuch as they disqualified me as grain mixer and reduced my wages 10 cents
per hour. The day before my vacation started. I have been drawing the same
scale for the past 8 months. I refer to article 10 of our contract agreement.
Another grievance, dated December 7, 1961, filed by Kindle, states:
I, D. W. Kindle , state that the above-mentioned Company has been unfair
in disqualifying me as a grain mixer. I feel that I have been discriminated
against inasmuch as they have required me to do more than has been asked
of any other grain mixer. I request that the Union to take action at once.
On February 16, 1962, Kindle filed this following grievance:
(1) A younger man than I has worked 131/2 hours overtime which I feel I
am entitled to, I asked to be paid for this time.
(2) I feel the Company is discriminating against me due to the fact that rules
governing punch out time are made to be different for me.
Under date of March 21, 1962, Kindle filed the following grievance with the
union steward: "I feel the Company is being unfair inasmuch [illegible] it was
worried [illegible].
Under date of June 2, 1962, a report of grievance was filed by Kindle.
I was pulled off my bid job yesterday and a younger man operated it and
the day before last told me it wouldn't be able to take my vacation it might
[illegible] the Supt. has been directing [ illegible] I feel this is a union job and
the dump has been working short-handed.
A full report of grievance was filed, pursuant to procedure , by Kindle on June 8,
1962, in which he stated:
On June 6 and June 7, I was sent home at the end of 8 hours and a younger
man worked my job on overtime . I want a total of 5 hours pay for those
2 nights
By a grievance dated June 11, 1962, directed to the steward , Kindle wrote on a
griveance form:
On June 8, 1962 , at 3:30 p .m., I was fired because of a grievance and I
believe this to be in violation of the agreement ( article XIV). I ask to be rein-
stated in full for time lost and seniority.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing herein, Kindle testified, referring to the plant superintendent:
He paid me in full and I asked him what reason he was firing me for. He
said, "There are too many of these" and he motioned to a couple of grievances
on his desk.
Ray Sherman, employed by Western Weighing and Inspection Bureau, testified
that he heard Welte say that by firing Kindle, he would eliminate the many grievances
filed by the latter.
Welte, in answer to a question as to why he fired Kindle, said
Q (By Mr. HENDRIX.) I think this is an all-important question. Why did
you fire him?
A. Because of his incompetency, inability to handle the jobs that we needed
to have done around the elevator.
Q. It was based solely on incompetency?
A. Absolutely.
Welte, in connection with the grievance of February 16, 1962, testified:
We had disqualified Mr. Kindle from working in the house on the belts up-
stairs by his operation, or working up there prior to this itme. We felt we didn't
have any confidence in him up there, not knowing that he would put the grain
where it was supposed to be. We had him up there trying to operate a belt
with a tripper on it, and he had had an accident with it, so we didn't have any
confidence in him at all. This overtime work had to do with his bid job which
was a truck dump operator. At this time of the year our business was such
that we only maintained one operator there. At this time of the year business
was slow and we didn't need . . .
He went on to testify, in answer to interpolated questions by me, that at no time
concerning that grievance or any other grievance filed by him did Kindle approach
Welte with the union shop steward nor did he ever know of any action taken by the
union executive board.
The testimony of Willis R. Tapscott, a union steward, shows that he was familiar
with each Kindle grievance and that they all were presented to the executive board
of the Union, according to the contract, for action; and each one of them was not
supported by the executive board.
The General Counsel says that the Respondent in this case claims that the sole
reason for the discharge of Kindle was incompetence stretching over a period of
15 months and further, the General Counsel asserts, that whether this is true or not,
the evidence of the inability of Kindle to do his job is material only insofar as it may
tend to establish a reason for discharge other than the one alleged. The General
Counsel argues that even presuming that Kindle was unable to meet the Company's
standards on his job, there is no evidence that Kindle did not capably perform the
task of dumping trucks. Dumping trucks had been the job assigned to Kindle for
some time before his discharge
Respondent says that Kindle was fired only for the reason that he was incompetent,
could not do his job properly, and made a general nuisance of himself by the filing of
personal grievances Counsel for the Respondent says that the evidence clearly
shows that Kindle was not fired only for the filing of grievances, but to the contrary,
he was fired for activities which the grievances themselves evidence, that is, complain-
ing about his work, arguing with management, general incompetency, and that the
filing of the grievances was a personal activity of Kindle and not in any way connected
with his membership in the Union. I agree.
It is clearly evident on the record that the Union itself, an old-line established
AFL union, carefully avoided the breach of the agreement between it and the
Respondent, by processing the grievances filed by Kindle on his own behalf to the
point where the Union itself, through its executive committee, washed its hands
of the accumulation of personal complaints made by Kindle in hope of support by
the Union.
The General Counsel says, correctly, that the testimony of General Superintendent
Welte throws no light on the performance at work of Kindle on the day of Kindle's
discharge; that it can be surmised that Kindle did something particularly aggravating
on the afternoon on which he was discharged and that otherwise there would have
been little reason for terminating Kindle after the new pay week had begun. I place
no credence in the fact that the pay week termination had anything to do with the
firing of Kindle. The General Counsel says further that if Welte had been consider-
ing Kindle's termination for general incompetence, it is only reasonable he would
have taken action the day before Then, the General Counsel argues, that the ag-
gravation came in the afternoon is apparent from the fact that Kindle had been des-
FARMERS UNION COOPERATIVE MARKETING ASS'N. 9
ignated to work overtime Friday night, but was later told he would not work that
night. The grievance quoted above sets forth Kindle's position . The Union did not
support Kindle in his personal claim that he was entitled to overtime . I believe Welte
when he says that Kindle was fired for cause . I do not think that during the 5-year
term of his employment Kindle was discriminated against because he was a member
of the Union within an appropriate bargaining unit, nor do I think he was fired simply
for the filing of a grievance . I do think , however, that the nature of the grievances
filed by him were for the purpose of pushing his personal interests and were not
the sort of activity which, under Section 7 of the Act, would be considered concerted
activity.
Concluding Findings
It seems to me that this case is typical where a situation arises under a bona fide
collective-bargaining agreement between a proper representative of employees and
an employer or employers . I have examined quite carefully the collective agreement
involved here , and particularly section XIV thereof, and find that there is no
prejudice attached either against the Union or the Employer in regard to the condi-
tions of that agreement . It seems to me to be eminently fair.
It goes without more than statement that within union membership there are
dissidents who invoke on their own behalf provisions of the contract intended to
grant them rights and privileges and to protect their interests . It goes without further
saying that management is entitled to depend on the provisions of a collective
agreement.
Concerted activity is defined within the Act and means what it says . No individual
member of a union , no more than an individual member of management , can assume
to use a collective agreement according to his own personal desire. Here, I think,
Kindle has tried to use the union agreement for his own personal use.
Above, I have set forth the issues in this case as defined by counsel for the
General Counsel . Of course , the filing of a grievance under usual contractual
agreement by an employee under contract is protected activity within the meaning
of Section 7 of the Act ; that is the whole purpose of collective bargaining . If such
action is protected it does not lose this status if the employee does not prevail. I find
that Kindle was discharged , that his discharge was for cause , and that under the
grievance procedure , as above described , he was entitled to and was given full con-
sideration by management as well as of the Union of which he was a member.
In connection with these grievances , it should be noted that Tapscott , the union
steward, took cognizance of each grievance and that in two instances , at least , relief
was granted to Kindle on the basis of his grievances . After that the executive board
declined to take others any further than they had, on the basis that Kindle argued
on a personal basis and not for violation of the agreement between the Respondent
and the Union.
I do not believe that the National Labor Relations Board as a body should spend
its time deciding whether or not a grievance , properly processed under a contract,
was decided correctly by management or the Union , or either or both . To hold
otherwise would mean that the Board would be reduced to a board of arbitration.
Counsel for the General Counsel correctly states that to complain about probable
contract violations through the grievance procedure of a collective agreement is
protected activity ; he relies greatly on H. Muehlstein & Co., Inc., 118 NLRB 268.
I agree with the principle expressed in that case , but I do not believe that the facts
there are synonymous with or like the facts in the instant case. The General Counsel
in his brief refers to Bowman Transportation , Inc., 134 NLRB 1419, wherein the
Board found that the motivating cause for the discharge of an employee by his
employer was his initiation of a grievance through his union representative. Here
again, I think the facts are not applicable to the case we are now discussing I think
the facts here call more for the application of cases relied upon by the Respondent
herein , particularly N.L.R.B. v. Gibbs Corporation , 284 F. 2d 403 (C A. 5), and
Ryder Tank Lines, Inc., 135 NLRB 936, wherein the Board wrote:
III. We agree with the Trial Examiner that the Respondent did not violate
Section 8 (a) (1) of the Act in discharging employee Bough because he had
appealed to higher management , "over the head" of Terminal Manager Mor-
rison , about an alleged shortage in his pay for a particular trip. As the
Trial Examiner noted, Bough 's claim appears to have been purely personal
and, in the circumstances of this case , his action in pressing it can hardly be
viewed as "concerted" employee activity within the purview of Section 7 of
the Act. Accordingly, we do not reach here the questions of employer scienter
which were involved in the Office Towel and Walls cases cited by the Trial
Examiner.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Substantial evidence herein does not disclose that Kindle 's activity was concerted
activity . There is a scintilla of evidence here to support the position of the
General Counsel that Kindle was fired because of the filing of grievances . However,
substantial evidence is more than a mere scintilla. To me, it means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Consolidated Edison Co . of New York, Inc. v . N.L.R.B ., 305 U .S. 197 , 229; and "it
must be enough to justify ... the conclusion sought to be drawn ." Cf. N.L.R.B. v.
Columbian Enameling & Stamping Co., Inc., 306 U.S. 292, 300.
Therefore I find , on the basis of the whole record , and the testimony adduced,
that the activities of Kindle were individual activities and not in pursuance of con-
certed activities of other employees , either by themselves or under the provisions
of the agreement between the Association and the Union.
There are no substantial questions of credibility to be decided in this case. The
facts on the whole record are not greatly in dispute.
I find that the Respondent has not and is not now engaging in unfair labor prac-
tices within the meaning of Section 8(a)(1), (2 ), and (3 ) or Section 2(6) and
2(7) of the Act ; that the General Counsel has failed to sustain the burden of proof
in these respects . Therefore , the complaint should be dismissed in its entirety.
Upon the basis of the foregoing findings of fact, and on the record as a whole,
I make the following:
CONCLUSIONS OF LAW
1. Farmers Union Cooperative Marketing Ass'n., the Respondent herein, is en-
gaged in commerce within the meaning of Section 2(6) and (7 ) of the Act.
2. American Federation of Grain Millers , Local No. 16, AFL-CIO, is, and at
all times material herein has been, a labor organization within the meaning of
Section 2(5) of the Act , and D . W. Kindle, an individual , is a member in good
standing of that labor organization.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
4. The General Counsel has failed by the preponderance of evidence to support
the allegations of the complaint.
5. The complaint herein should be dismissed.
RECOMMENDED ORDER
I recommend that an order be entered herein dismissing the complaint in its
entirety.
International Ladies' Garment Workers Union , AFL-CIO and
F.R. Knitting Mills, Inc. Case No. 1-CB-830. November 18,
1963
DECISION AND ORDER
On August 8, 1963, Trial Examiner C. W. Whittemore issued his
Intermediate Report 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 Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief, and the. General Counsel
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
145 NLRB No. 4.