Frito-Lay, Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1965

151 N.L.R.B. 28 (N.L.R.B. 1965)

28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered , defaced , or covered by any
aother material.
(d) Notify the said Regional Director , in writing , within 20 days from the date
of the receipt of this Trial Examiner 's Decision , what steps it has taken to comply
herewith.4
+ In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify the said Regional Director , in writing, within 10 days
from the date of this Order, what steps the 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 conduct our labor relations in compliance with
the National Labor Relations Act, as amended, we hereby notify you that:
WE WILL NOT unlawfully discourage you from being members of or being
represented by Chicago Joint Executive Board of the Hotel and Restaurant
Employees and Bartenders International Union, AFL-CIO, or any other labor
organization.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not to engage in any union
activities.
WE WILL offer reinstatement to Jorge Cantu, and will give him backpay from
the time of his discharge.
UNIVERSITY CLUB,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
NOTE.-We will notify Cantu if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of
1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago , Illinois,
Telephone No. 828-7572 , if they have any question concerning this notice or com-
pliance with its provisions.
Frito-Lay, Inc. and Drivers, Warehouse and Dairy Employees
Union , Local 75. Case No. 30-CA-67 (formerly 13-CA-6291).
February 15, 1965 °
DECISION AND ORDER
On November 30, 1964, Trial Examiner David London issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in unfair labor practices as alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
Charging Party filed exceptions to the Trial Examiner's Decision and a
supporting brief. The Respondent filed a brief in support of the Trial
Examiner's Decision.
151 NLRB No. 6.
FRITO-LAY, INC. 29
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 [Members Fanning, Brown, and
Jenkins].
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 Ex-
aminer's Decision, the Charging Party's exceptions and brief, the
Respondent's supporting brief, and the entire record in this case, and
hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts, as its
Order, the Order recommended by the Trial Examiner, and orders
that the complaint herein be, and it hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on March 17, 1964, by Drivers, Warehouse and Dairy Em-
ployees Union, Local 75, hereafter called the Union, the General Counsel of the
Board, on May 12, 1964, issued the complaint herein against Frito-Lay , Inc., herein
referred to as Respondent, alleging that Respondent had engaged in conduct violative
of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, here-
inafter called the Act. Respondent 's answer having denied the commission of any
unfair labor practice , a hearing was conducted before Trial Examiner David London
at Green Bay, Wisconsin , on August 17 and 18, 1964, at which all parties were rep-
resented . Following the close of the hearing , comprehensive briefs were received
from the General Counsel and Respondent and have been duly considered by me.
Upon the entire record in the case, ' and my observation of the witnesses as they
testified herein, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has been , a corporation duly organ-
ized under and existing by virtue of the laws of the State of Texas, and maintains
facilities in various States of the United States. At all times material herein , it has.
maintained an office and place of business at Green Bay, Wisconsin , where it is, and
at all times material herein has been, engaged in the sale and distribution of food
products.
During the past calendar year , Respondent , in the course and conduct of its busi-
ness operation , has purchased goods, supplies , and materials valued in excess of
$50,000 which were shipped to its Green Bay , Wisconsin , location from points outside
the State of Wisconsin . During the same period, Respondent, in the course and
conduct of its business operations , has shipped products valued in excess of $50,000,
to points outside the State of Wisconsin . Respondent admits, and I find , that at all.
'The General Counsel's unopposed motion of October 2 , 1964 , attached to his brief , seep-
ing 15 specified corrections in the official transcript of testimony is hereby granted.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times material herein it has been an Employer engaged in commerce , and that its
operations affect and have affected commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union 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
On February 1, 1962, following a consent election conducted by the Board on
January 24, 1962, the Board certified the Union as the collective-bargaining rep-
resentative of all empoyees at Respondent's premises in Green Bay, Wisconsin, in the
following appropriate unit: All route salesmen , drivers, and warehousemen , excluding
office clerical employees , guards, and supervisors as defined in the Act.
On June 4, 1962, Respondent and the Union entered into a collective-bargaining
agreement establishing the terms and conditions of employment for the employees in
the aforementioned unit for a term of 2 years. That agreement contained a valid
union-security clause and checkoff clause, and also provided for automatic annual
renewal of that contract after June 3, 1964, unless notice of termination were given
by either party at least 60 days prior to June 3, 1964, or 60 days prior to June 3
in any year thereafter.
On March 17, 1964, Melvin Blohowiak, recording secretary of the Union, notified
Respondent, by letter, that it was the Union's desire to terminate the collective-
bargaining agreement aforementioned . Enclosed with that letter were copies of the
Union's "Proposed Changes for 1965," and a request for a meeting with Sheldon
Redfearn , Respondent 's manager of the Green Bay office. In the meantime, on
March 5, 1964, Seldon Robinson, industrial relations manager of Respondent's north
central and central division, filed a petition with the Board in Case No. 13-RM-1728,
seeking an election among the employees in the unit described above to determine
whether they desired further representation by the Union. On March -27, Robinson
sent the Union a letter terminating the 1962 contract and advising that Respondent
had filed the aforementioned RM petition because it had good reason for doubting
the Union 's continuing majority status as collective -bargaining representative.
On March 17, 1964, the same day that the Union mailed its demand to bargain for
the term beginning on June 4, 1964, it also filed the charge in the instant proceeding
alleging that Respondent had refused to bargain with the Union and had thereby
violated Section 8(a)(1) and (5) of the Act. Pursuant to that charge, the General
Counsel, on May 12, 1964, issued the complaint presently before me alleging viola-
tions by Respondent of Section 8(a)(1) of the Act and a refusal to bargain on
and after March 17, 1964. On May 15, 1964, the Board's Regional Director dismissed
Respondent's petition for an election in Case No. 13-RM-728 because of the pendency
of the refusal -to-bargain charges in the present proceeding.
In his brief , the General Counsel contends there are only "two questions presented"
by the record herein:
1. Whether Respondent , by filing its petition , Case No. 13-RM-728, on
March 5, 1964, and by thereafter refusing to bargain with the Union, has
violated Section 8(a) (5) of the Act?
II. Whether Respondent by its statements to employees has violated Section
8 (a) (1) of the Act?
I find no merit to the General Counsel's first contention . It certainly cannot
seriously be contended that Respondent, merely "by filing its petition, Case No.
13-RM-728, on March 5, 1964," has violated Section 8(a)(5) of the Act. The right
to file such a petition, at an appropriate time, is granted to every employer subject
to the Act by Section 9(c) (1) (B) thereof and implemented by Sections 102.60 and
102.61(b) of the Board's Rules and Regulations, Series 8, as amended. Whitney's,
81 NLRB 75; United States Gypsum Company, 90 NLRB 964; Selby & Anderson
Furniture Mfg. Co., Inc., 130 NLRB 744; Toolcraft Corporation, 92 NLRB 655.
Nor am I convinced that the filing of Respondent's petition, when considered in the
light of, and together with, the remainder of the record as hereafter detailed, estab-
lishes that Respondent's refusal to bargain with the Union was in violation of the
Act. Instead, I find that such refusal was occasioned by Respondent's good-faith doubt
concerning the Union's continuing majority status, and that it was within its legal
rights when it sought to invoke the machinery provided by the Act to determine that
status.
FRITO-LAY, INC. 31
Before detailing the relevant evidence on this issue, it is appropriate at the outset,
just as the Board concluded in Celanese Corporation of America, 95 NLRB 664,2
at 671-672:
to set forth the legal principles controlling in situations of this type,
and particularly to indicate the relationship between the existence of a Board
certificate and the right of an employer to question a union's majority in good
faith. In the interest of industrial stability, this Board has long held that, absent
unusual circumstances, the majority status of a certified union is presumed to
continue for 1 year from the date of certification. In practical effect this means
two things: (1) That the fact of the union's majority during the certification
year is established by the certificate, without more, and can be rebutted only
by a showing of unusual circumstances; and (2) that during the certification
year an employer cannot, absent unusual circumstances, lawfully predicate a
refusal to bargain upon a doubt as to the union's majority, even though that
doubt is raised in good faith. However, after the first year of the certificate
has elapsed, though the certificate still creates a presumption as to the fact of
majority status by the union, the presumption is at that point rebuttable even
in the absence of unusual circumstances. Competent evidence may be in-
troduced to demonstrate that, in fact, the union did not represent a majority
of the employees at the time of the alleged refusal to bargain. A direct corol-
lary of this proposition is that after the certificate is a year old, as in cases
where there is no certificate, the employer can without violating the Act, refuse
to bargain with a union on the ground that it doubts the union's majority,
provided that the doubt is in good faith
*
By its very nature, the issue of whether an employer has questioned a union's
majority in good faith cannot be resolved by resort to any simple formula. It
can only be answered in the light of the totality of all the circumstances involved
in a particular case. But among such circumstances, two factors would seem
to be essential prerequisites to any finding that the employer raised the majority
issue in good faith in cases in which a union had been certified. There must,
first of all, have been some reasonable grounds for believing that the union had
lost its majority status since its certification. And, secondly, the majority issue
must not have been raised by the employer in a context of illegal antiunion
activities, or other conduct by the employer aimed at causing disaffection from
the union or indicating that in raising the majority issue the employer was merely
seeking to gain time in which to undermine the Union.
On the entire record, and my observation of Redfearn and the employees, both
while they were testifying and while otherwise in attendance in the hearing room,
I am convinced and find that an extremely informal and pleasant relationship existed
between Redfearn and the employees allowing and encouraging a free exchange of
views. The employees, in their day-to-day dealings with Redfearn, referred to him
as "Red." His 20 by 20 office was in a corner of Respondent's warehouse and was
also used by all the employees in the morning when they "checked in their produce
commodities" and when they checked out in the late afternoon upon returning from
their routes. It was on such occasions that the employees and Redfearn engaged
in "kidding back and forth with each other and with Red." Among the subjects
of discussion were football, baseball, and the Union.
With respect to the Union, Redfearn made it clear to the employees, and applicants
for employment, that they would have to abide by, and comply with, the union-
security clause of the existing collective-bargaining agreement. On the other hand
he made no secret of the fact that he was opposed to the Union's status as their
collective-bargaining representative. It was from these conversations, in which he
participated or overheard, that he came.to the conclusion that a majority of the em-
ployees were opposed to further membership in, or representation by, the Union.
During all times relevant herein, the unit of employees with which we are con-
cerned consisted of seven employees. Out of the six valid votes cast at the election
of January 24, 1962, four were cast for the Union and two against. The parties
stipulated, however, that by September 1963, only two employees, Robert Huebner
and Stanley Seymour, remained within the certified unit of those who were on the
eligibility list of January 1962 In March 1964, when the General Counsel contends
Respondent's refusal to bargain occurred, the five employees in the unit, in addition
2 Cited, with approval, by the Supreme Court in Ray Brooks v. N.L.R.B., 348 U.S.
96, 104
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Huebner and Seymour, were Allen Knaus, George Neimy, James Withbro, Robert
Wirtz, and James Quimby. Wirtz terminated his employment March 27, 1964, and
was replaced by Robert McGraw on or about April 12, 1964. Quimby terminated
his employment on March 13, 1964, and was replaced by Carl Gruber who was
hired as such replacement on or about March 6, 1964.
Shortly after Knaus was employed on June 4, 1962, he was told by Redfearn
that he would have to join the Union. Knaus replied that be didn't think the
Union "would do [him] any good," and that he did not want to join that organiza-
tion and would do so only because required to do so. Knaus maintained this posi-
tion and expressed his opposition to the Union to "anyone that would listen." He
carried on his campaign against the Union among the employees until about 4 months
before the expiration of the contract when he "became sure that [he] could do
something about getting the Union out because [he] thought he had a majority of
people that felt the same way [he] did."
James Withbro was employed by Respondent on January 20, 1964, and was told
by Redfearn that he would have to join the Union. Three or four weeks later, he
asked Robinson, Respondent's industrial relations manager, whether there was "any
way" that he could avoid union membership and was told that he would have to
join. While it was stipulated that five employees signed union dues checkoff au-
thorizations, neither Withbro nor Quimby were among that number. And, though
the General Counsel offered into evidence copies of the Union's records regarding
the receipt of all initiation fees and dues from five of Respondent's employees,
whether checked off or paid in person, no such record pertaining to Withbro or
Quimby was offered. Nor was there any evidence that either of these men ever
signed an application for membership in the Union.
Stanley Seymour has been employed by Respondent, or its predecessor at Green
Bay, for about 10 years. When he first learned that there was to be an election
in January 1962, he told Refearn that he "wasn't in favor of joining the Union."
Since that time, he has been in basic disagreement with his best friend, employee
Huebner, with respect to "being represented by the Union," Seymour being opposed
to such representation, while Huebner was in favor thereof. During this period the
two men engaged in frequent discussions of the subject in the presence of other
employees and Redfearn.
James Quimby was employed by Respondent on September 16, 1963, and left
that employment on March 13, 1964. On his first day at work, when Redfearn
told him "that the employees were union and that it was a closed shop," Quimby
replied that he "did not think too much of the Union part of it" and that he "didn't
care for the Union." Approximately 2 or 3 months later, both men "agreed that
maybe [Quimby] could get by without joining the Union until they put in for a
vote to vote the Union out." In one of the discussions with Redfearn, Quimby
told him he "wanted nothing to do with the Union." Quimby never became a
member thereof during the entire period of his employment, nor did he make any
payment to it.
Robinson, who assumed his post in August 1963, made his first visit to Green
Bay on February 20, 1964, and there met individually, or in groups of two, with
all the employees in the unit. After introducing himself, be told the employees
be would be glad to discuss any problem which they might have. Several of the
employees asked questions about Respondent's insurance plan then in effect. Be-
cause he did not have the booklet describing that program with him, Robinson in-
formed them that he would set up a meeting at which he would be prepared to
answer the questions of all the employees regarding this coverage.
Withbro and Quimby, who had never joined the Union, asked "whether or not they
had to go into the Union," with Quimby adding that he did not want to join.
Robinson informed both men that under the contract with the Union they were
required to do so. Knaus and Seymour, who had signed checkoff authorizations,
"wanted to know how they could get out of the Union." Robinson replied that
if the employees didn't want the Union they could "file for a decertification, and
the Company, if they had a reasonable doubt, could file a recertification or cer-
tification of the bargaining unit."
After discussing the foregoing conversations with Redfearn 3 and higher manage-
ment officials, Robinson, in behalf of Respondent, on March 5, 1964, filed the
s Early in February 1964, Seymour asked Redfearn "what their chances were of getting
out of the Union" and that he knew that Knaus, Quimby, and Withbro would vote against
the Union if an election were held.
FRITO-LAY, INC. 33
petition in Case No . 13-RM-728 seeking an election to determine whether the
Union was still the choice of Respondent 's employees to continue as their collective-
bargaining representative.4
A meeting of the employees was held on March 10, 1964 , at which time Robin-
son informed the group that, because of the doubt that had been raised in his mind
on his previous visit that the Union continued to represent a majority of the em-
ployees, he had filed the RM petition aforementioned , and that the employees would
soon be given an opportunity to vote at an election whether or not they wanted
continued representation by the Union . Knaus asked "what kind of a deal" the
men could get if the Union were voted out and whether salesmen in other districts
were getting higher compensation . Robinson replied that because of the pendency
of the petition for an election it would be illegal for him to discuss that subject.
During the discussion , Robinson stated that Respondent would have no objection if
the men formed their own independent union.
It is the contention of the General Counsel that "not only did the Union represent
a majority of Respondent 's employees on March 5, 1964, and thereafter , but also
that Respondent did not have a good -faith doubt of this fact during this period."
It is undoubtedly literally true , by reason of the prior certification and the 1962
contract , that the Union was, during the period covered by that agreement, the
representative of all the employees in the unit concerning wages and terms and
conditions of employment arising within the term of that 2-year period. Thus, if
prior to June 4, 1964 , the Union made a demand on Respondent to bargain con-
cerning matters which might affect employees ' working conditions prior to June 4,
1964, Respondent would be required to recognize the Union and bargain with it as
the duly designated bargaining representative with respect to such demand.
Here, however, we are concerned only with the demand of the Union for a con-
tract term beginning June 4, 1964 . In that posture of the case, as Celanese and
the other cases cited above make clear, there is only a rebuttable presumption that
the Union 's majority status has continued , and Respondent's liability on this phase
of the case hinges on the question of whether or not Respondent has successfully
rebutted that presumption . The findings entered above, establishing that four of the
seven-man unit were opposed to continued representation by the Union, and so
advised Respondent , have unhesitatingly brought me to the conclusion that the
presumption has been rebutted.
The presumption arising from the certification having been overcome , "the Gen-
eral Counsel must come forward with evidence that on the refusal-to-bargain date
the union in fact did represent a majority of the employees in the appropriate unit."
Stoner Rubber Company, Inc., 123 NLRB 1440 . To establish this fact , the Gen-
eral Counsel stresses the testimony showing that as "of the date that Respondent
filed its petition , March 5, 1964 , the Union had five dues-paying members in a
seven-man unit." But two of these five were Knaus and Seymour who, it has al-
ready been found , wanted to rid themselves of the Union . And on the record made
here, I can only conclude that these two men unwillingly paid dues to the Union
only because required to do so by the existing collective-bargaining agreement, and
not as any indication that they desired continued representation by the Union.
Finally, the General Counsel contends that "by encouraging the formation of an
independent union" and the interrogation of employees , Respondent "committed
unfair labor practices designed to undermine the Union 's majority status." I find no
credible evidence that Respondent gave any unlawful encouragement for the forma-
tion of an independent union . Statements by either Redfearn or Robinson that Re-
spondent had no objection to an independent union, made at a time when they were
aware of the opposition of some of its employees to the affiliated union,5 were mere
expressions of free speech protected by Section 8(c) of the Act.
The General Counsel also points to testimony establishing that Redfearn as early
as September 1963 told Quimby that "it was his belief that they wouldn 't have a union
in 1964, he thought that the men would vote the Union out," and that 2 or 3 months
later "both agreed that maybe [Quimby ] could get by without joining the Union
until they put in for a vote to vote the Union out." Similar remarks were made by
Redfearn to Wirtz late in October 1963 and early in January 1964.
* As previously indicated, this petition was subsequently dismissed by the Board's Re-
gional Director because the Union, on March 17, 1964, filed the charge in the instant pro-
ceeding alleging violations by Respondent of Section 8(a) (1) and (5) of the Act.
6 The 1962 contract between the parties shows that the Union was affiliated with the
International Brotherhod of Teamsters.
783-133-66-vol. 151-4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find nothing legally improper in these remarks by Redfearn, certainly insofar as
they express a hope and belief, which he was entitled to entertain, that the Union
would be voted out in 1964. Nor do these incidents establish, as the General Counsel
contends, that they were "part of a plan" conceived by Respondent in .1963 to
eliminate the Union from Respondent's operations." If these conversations had been
held with employees who favored the Union, in an attempt to induce them to change
their loyalties, a more difficult problem might be presented. But here, Quimby
had previously told Redfearn that he "didn't care for the Union," and Wirtz, when
told by Redfearn at the time he was hired that it was a union shop, informed him
that he "could live with [the union] or without it."
The only interrogation which, in his brief, the General Counsel contends was
violative of Section 8(a)(1) of the Act, was Redfearn's interrogation of Quimby,
during the first day of his employment, how he "felt about the union." However,
it is not every interrogation of employees concerning their union views which must
be found violative of the Act. Blue Flash Express, Inc., 109 NLRB 591, upon which
the General Counsel relies, dictates that "the test is whether under all the circum-
stances, the. interrogation reasonably tends to restrain or interfere with the employees
in the exercise of their rights.6
The interrogation of Quimby occurred at some point during a longer conversation
and the record does not disclose whether it was before or after his inquiry afore-
mentioned that Redfearn "explained that the employees were union and it was a
closed shop." If it occurred after Quimby was informed of his obligation to become
a union member it cannot be concluded that Redfearn's inquiry as to how Quimby
"felt about the Union" tended "to restrain or interfere with [him] in the exercise of
rights guaranteed by the Act." Blue Flash Express, Inc., supra. In any event, in view
of all the circumstances existing here, including Redfearn's "close relationship with
the workers, and their long continued practice of free discussion of union [affiliation]
in his presence and with him, I conclude that his limited queries of a few employees 7
about . . . their union views does not constitute substantial proof of coercion such
as to warrant action under the Act." Mitchell Standard Corporation, 140 NLRB 496,
507; Howard Aero, Inc., 119 NLRB 1531.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
3. Respondent has not engaged in the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the cases, it is recommended that the complaint be dismissed in
its entirety.
"See also N.L.R.B. v. J. E. McCatron, et al., d/b/a Price Valley Lumber Co., et al., 216
F. 2d 212, 216 (C.A. 9), where the court summarized the rule as follows: "Interrogation re-
garding union activity does not in and of itself violate Section 8(a) (1) . . . . In. order to
violate Section 8(a) (1) such interrogation must either contain an express or implied threat
or promise, or form part of an overall pattern whose tendency is to restrain or coerce."
' The record discloses that Redfearn made a similar inquiry of Wirtz.
J. B. Guedri , Sr., J. B. Guedri, Jr., Charles Millhiser, II, Claire
M. Rosenbaum , and Mildred M. Meltzer, Partners, d/b/a North-
side Electric Company and Charles H. Poindexter . Case No.
5-CA-25/.7. February 15, 1965
DECISION AND ORDER
On May 27, 1964, Trial Examiner Lee J. Best issued his Decision
in the above-entitled proceeding, finding that the Respondent had not
151 NLRB No. 14.