Gold Spot Dairy, Inc.Download PDFNational Labor Relations Board - Board DecisionsFeb 27, 1968169 N.L.R.B. 1071 (N.L.R.B. 1968) Copy Citation GOLD SPOT DAIRY, INC. 1071 Gold Spot Dairy, Inc. and International Association of Machinists and Aerospace Workers , AFL-CIO. Case 16-CA-2925 February 27, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On November 28, 1967, Trial Examiner Harry H. Kuskin issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. 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 Respondent's ex- ceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. place, meeting, and activities of the Union or other con- certed activities of its employees. Respondent's answer denies that it has violated the Act in any respect alleged herein. I Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs of the General Counsel and Respondent, I make the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, and Respondent admits, that it is an Oklahoma corporation with plants in several States of the United States, including a plant in Enid, Oklahoma, which is alone involved in this proceeding; that, at its Enid, Oklahoma, plant, it is engaged in the retailing and wholesaling of milk and other milk-related products; that, during this past year, goods and materials valued in ex- cess of $50,000 were transported to its Enid, Oklahoma, plant from outside Oklahoma; and, that during this same period which is representative of all times material herein, it manufactured, sold, and shipped goods and materials valued in excess of $50,000 from this facility to points outside Oklahoma. I find, upon the foregoing, as Respondent further ad- mits, that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find , that International As- sociation of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES 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 or- ders that the Respondent, Gold Spot Dairy, Inc., Enid, Oklahoma, its officers, agents, successors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY H. KUSKUN, Trial Examiner: This case was heard at Enid, Oklahoma, on June 29, 1967. A complaint issued herein on April 27, 1967, as the result of a charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, alleging that Gold Spot Dairy, Inc., herein called Respond- ent, has violated Section 8(a)(1) of the Act by (1) inter- rogating certain of its employees concerning their own and other employees' union membership, activities, and desires; (2) orally threatening employees with a reduction in work force or other reprisals for union-conducted ac- tivity; and (3) keeping under surveillance the meeting A. Background and Summary of Events The Union launched a campaign to organize Respond- ent's employees on or about February 2, 1967.2 The first organizational meeting of employees was held on that date by Jim D. Wagoner, the Union's special representative. Since that time, similar meetings have been held by Wagoner on a weekly basis either at the Holiday Inn or at the Foe Grill in Enid. Wagoner also passed out union literature during the last week in February and the first part of March on the sidewalk in front of Respondent's parking lot, which lot is across the street from Respondent's office and plant facilities. He was aided in such distributions by employees Marion F. Taylor and Dennis Koehn. These distributions were seen by management. The conduct alleged herein to be violative of the Act spanned the period from February 28 to March 7, inclu- I In its brief, Respondent argues, in effect, that the complaint herein should be dismissed because at a time subsequent to the conduct alleged herein to be violative of the Act, i e., on June 15, 1967, an election was conducted among Respondent 's employees under Board auspices. In its view, "a waiver or dismissal should have been filed" by the Board to such election. Apart from other considerations, it is patent that such unfair labor practices as occurred herein vis-a-vis Respondent's employees can- not be nullified by the subsequent holding of a Board election among such employees. Accordingly, I find this contention to be lacking in ment. 2 All dates hereinafter are in 1967. 169 NLRB No. 158 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD live ; it involved admitted supervisors Glen Thomas and Russell F. Beachboard and employees Taylor, Koehn, and Henry Moyer . In the interest of an orderly presenta- tion , the incidents involving Thomas will be grouped separately from those involving Beachboard. B. The Specific Allegations of the Complaint and Conclusions Thereon 1. Glen Thomas Employee Koehn testified that Thomas spoke to him about the Union on February 28 and on March 7, and that in each instance the Union had held a meeting the night before. He testified further that on the first occa- sion, which took place behind the plant by the loading dock, Thomas asked him what he thought about the Union and, when he replied that he thought it was a good deal because "we needed higher wages and good benefits," Thomas replied that they would talk about it some other time . On the second occasion, Thomas called him into the office3 and asked him whether he had been attending "the damn union meetings ,"4 and, when he acknowledged that he had, Thomas answered that he did not think it would do any good. Koehn testified further that, during the same conversation, Thomas asked what he thought he could get out of it; said that the Union would not be able to bargain with Mr. Goley (Respon- dent's plant manager) because he, Goley, would have to go to the board of directors, who would then to go the ad- visory board; and further asked if one person "was stir- ring all this up." Koehn also testified that the night before the March 7 incident, he drove his car to the union meet- ing at the Holiday Inn in Enid; that, after he parked his car in the parking area of the motel, in the lane away from the lane through which he had entered, he noticed that Thomas was in a car behind him and was following him and was proceeding "around the corner" of the parking area into the lane where he had parked, and that he then entered the motel without waiting to see whether Thomas left the parking area from that lane. With regard to the foregoing, Thomas testified as fol- lows: On February 28, it was Koehn rather than he who did the asking about the Union, and that since he did not want to discuss the Union, he said, as Koehn had testified, "we can talk about it later." And as to the second conversation, Thomas denied that he ever called anyone, including Koehn, into the office to talk about the Union, that the only statement he made to Koehn about March 7 concerning the Union was to deny knowing anything about unions and to say that the employees have their right to their own thinking. Thomas specifically de- nied warning or threatening Koehn, or indicating to him that a union would not do him any good and that the Union would be unable to bargain with Manager Goley as he would have to go to the board of directors and they, in turn, would have to go to the advisory board of Respondent . Finally, with reference to the claimed sur- veillance by him on March 6 of the union meeting at the Holiday Inn, Thomas swore that he was out of town at 9 Koehn testified that Thomas' office is "where people come in and out all the time " and where the telephone is, but that no one else was present during this coonversation. " Koehn' s prehearing statement shows that the original text of this statement read : "have you been attending those meetings " and that the words "damn union " were then inserted after the word "those." Koehn, when questioned by counsel for Respondent about the later addition of the the time, since he left Enid with his wife by automobile right after work at 5:30 p.m., in order to visit the grave of his wife's mother in Guthrie, Oklahoma, about 60 or 65 miles away, and that after doing this and visiting with his wife's sister in Guthrie, they returned to Enid close to 11 p.m. Dorothy Hazel Thomas, the wife of Glen Thomas, was called by Respondent to testify as to his whereabouts on the evening of March 6. She testified to the same de- parture time from Enid on that date, as did her husband. It was also her testimony that they arrived at her mother's grave about 6:45 or 7 when it was just getting dark, "because we had a flashlight" and the flashlight was needed because "we had to see what shape the jardiniere was in." She added that they painted the jardiniere and spent about 10 or 15 minutes at the cemetery, then visited her sister in Guthrie and returned home by 11 p.m., and that neither upon their return to Enid nor on their way to Guthrie did they visit the Holiday Inn. Mr. and Mrs. Thomas' testimony of starting out by automobile at 5:30 p.m. on a visit to a cemetery about 65 miles distant when, in all likelihood, they would arrive at the cemetery when it was dark, which was actually the case, according to Mrs. Thomas, and her further testimony about painting a jardiniere over a grave and attending to other details by searchlight, taxes one's credulity. In view of this and my observation of Mr. and Mrs. Thomas on the witness stand, I am persuaded, and find, that neither he nor she was testifying truthfully as to his whereabouts on the evening of March 6. Accordingly, since Koehn impressed me as a reliable witness, I find, in accordance with his testimony, which I credit, that Glen Thomas did follow him by car into the parking lot of the Holiday Inn on the night of March 6. And since Glen Thomas' testimony as to his whereabouts that evening negates any conclusion that he was there to use the public restaurant on the premises or on business unrelated to the union meeting, and in the light of Thomas' other conduct herein found to be violative of Section 8(a)(1) of the Act, I infer, and find, that he was engaging in surveillance of the union meeting on the evening of March 6 at the time when Koehn ar- rived at the Holiday Inn to attend that meeting, and that Respondent violated Section 8(a)(1) of the Act thereby. As already noted, while Thomas admitted having a conversation with Koehn on February 28 in which the Union was mentioned and another such conversation on March 7 or thereabouts, he denied Koehn's testimony as to the substance of the second conversation and further denied that he initiated the first conversation and that he called Koehn into the office on the second occasion. However, since I have heretofore credited Koehn over Thomas, and since, as appears hereinafter, Thomas also spoke separately to employee Moyer on March 7 con- cerning the Union in the same office, I am persuaded, and find, that Koehn testified credibly as to the manner in which the conversations arose and as to their substance. Accordingly, I find that, on February 28, Thomas inter- rogated Koehn as to what he thought about the Union; and that on March 7 Thomas further interrogated him as to whether he attended the union meeting,5 as to what he could get out of the Union, and as to "who was stirring all word "damn," explained that because he gave this statement to a female representative of the General Counsel and because he does not usually swear in front of women, he omitted the word in the first telling. As Koehn impressed me as a reliable witness, I credit his explanation. 5 I need not, and do not, decide whether Thomas used the word "damn" in referring to the union meeting because the omission of the word "damn" would not alter my ultimate finding in this respect. GOLD SPOT DAIRY, INC. 1073 this up"; and threatened him that the Union would not do any good.6 The latter was clearly coercive and violative of Section 8(a)(1) of the Act. Similarly, the acts of inter- rogation above, especially when considered in the context of this threat, are also violative of the same section of the Act. As already indicated, on March 7, Thomas also spoke to employee Moyer in the office about the Union. Ac- cording to Moyer, Thomas then said to him, "I hear you have been going to a few of the union meetings." Moyer acknowledged that he had, and Thomas inquired further as to how he felt about the Union. Whereupon, he replied that he felt that something should be done about wages but that he did not want any hard feelings between Thomas and him. Thomas then informed him to "sort of limit your meetings," and Moyer answered that he would try. Thomas specifically denied Moyer's version of what each of them said during this incident. According to Thomas, the conversation began when Moyer came into the office voluntarily and asked him what he thought about the Union, and that his answer was that he did not know anything about the Union, had never belonged to the Union, had not worked at a union plant, and could not tell him anything about it, adding that "[Moyer has] a right to [his] own thinking." Since I have heretofore not credited Thomas' version of his separate conversation with Koehn on the same day and in the same office, since Moyer impressed me as a credible witness, and since Moyer's version of the conversation has an inherent probability when measured against the remarks which I have heretofore found were made on that day by Thomas to Koehn, I find that the conversation occurred as Moyer testified. Accordingly, I find that Thomas interrogated Moyer as to his attendance at union meetings, as to how he felt about the Union, and further that he enjoined Moyer to "sort of limit your meetings." The latter ad- monition , I find, carried with it the implication that a failure by Moyer to limit his attendance at union meetings would be disadvantageous to him and thus constituted a subtle form of coercion.7 Accordingly, I find further that, by these acts of interrogation and by the latter coercive remark, Respondent also violated Section 8(a)(1) of the Act. 2. Russell F. Beachboard Employee Marion F. Taylor testified that he had two conversations with Beachboard concerning the Union; i.e., on March 3 and 7. On the first occasion, he was on duty in the wash house" when Beachboard spoke to him. According to Taylor, Beachboard then told him to stop talking and visiting on the job and to start doing something useful while on the timeclock, indicating at the same time that he did not care whether the Union came into the plant or not. According to Taylor, he had never seen or read any posters in the plant proscribing talking or visiting on the job. On the next occasion, also accord- ing to Taylor, Beachboard approached him and said, "Bud, you are making me look awfully small .... Last night some of the sales personnel saw you come out the the garage .... There is suspicion you had been talking union to them"; and he replied that he was not talking union but that he "came down to check on the bulletin board as some employees do."9 To this, Beachboard an- swered that as long as Taylor was off the timeclock he, Beachboard, wanted Taylor "to stay off the company property and not be around there talking union," and that he should "tell the Union people to take it and cram it, that [he] was getting enough." Taylor testified further that he had never been asked, or warned, to stay off com- pany property after he had punched out for the day. As to the foregoing, Beachboard testified that he did have a conversation with Taylor on these 2 days. However, there was substantial variance between his version and that of Taylor. As to the first conversation, Beachboard testified that it related to conduct of Taylor the night be- fore, after his regular working hours, in visiting with some of the night crew while they were at work and that, in speaking to Taylor, he was responding to a request by one Reynolds, the Company's plant superintendent, that he stop his supervisees, who are truckdrivers and production people, from interrupting the work of the night crew.10 He testified further that he told Taylor to confine his activi- ties to his work area and not to visit the plant after his regular work hours and interrupt the work of other people, l i after first telling Taylor that the fact that he was approaching Taylor on this matter "had nothing to do with anything concerning the union activities which ap- parently were going on in the plant at that time ...." As to the March 7 conversation with Taylor, Beachboard testified that he had received a report from Lawrence Scott, the sales manager, as to Taylor's having been in the garage on the night of March 6 talking to employees on duty and that he went to Taylor again in the wash house and talked to him a second time.12 He thereupon told Taylor about receiving such a report but did not identify the source and added that this was the second time within a week. He acknowledged that he then said, "Bud, it is making me look pretty shabby as a supervisor having one of my men continuing to interfere with the work of other people on his off hours when he has very little reason to be engaged in conversation with them." According to Beachboard, he again tried to make clear to Taylor that he was not referring to union activity by Taylor. In this connection, he denied that he had told Taylor that (1) he, Taylor, was suspected of engaging in union activities dur- ing that visit to the garage or (2) he told Taylor to "tell the Union to take it and cram it." As to the latter, he at- tributed these remarks to Taylor, explaining that after th ty had talked about Taylor's being in the garage and visiting with garage personnel, Taylor said, "I have got- ten mixed up with the Union ... , I wish I hadn't and I 6 While I also credit Koehn 's testimony concerning the statement made by Thomas to him as to the Union being unable to bargain with Respond- ent's manager ; I find this statement to be too ambiguous to support any finding of violation herein See Climate Control Division , The Singer Company, 160 NLRB 765 8 Taylor drives a tank truck on alternate days and his hours on those days are from 6:45 a_m to 3 p in On the remaining days of the week he works in the washhouse on tank truck cleanup duty. 8 The usual routine is for a driver to write up the mechanical defects, if any, on his truck when he completes his route for the day and to post the list of defects on a board in the garage before punching out On the night in question , according to Taylor, there were two mechanics working on a truck, he went by and said "hi" to them and came back out of the garage. At that point, Sales Manager Scott and some of the sales personnel arrived at the garage in a truck, saw him, and barely spoke to him. 10 Reynolds did not testify. 11 According to Beachboard, it has been his policy, when asked by another supervisor to stop interruptions of this nature, to talk about It to those charged with the interruption 12 Scott did not testify. 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guess I should just tell them to take it and cram it." Whereupon, also according to Beachboard, he said, "that is your business. If you feel that way about that's what you ought to do, but that's your business, it is none of my business." Beachboard corroborated Taylor's testimony that, during their conversation, Taylor denied that he had engaged in union activity in the garage that evening. It is thus the testimony of Beachboard that, in each in- stance, his conversation with Taylor was prompted by a report to him from a supervisor about Taylor's visiting the plant the night before, after his regular working hours, and interfering with others still at work. I note, in this connection, that neither Reynolds nor Scott, the super- visors involved, testified herein13 and Beachboard, him- self, gave vague testimony as to what these supervisors had told him. Thus, according to Beachboard, Reynolds did not tell him how long Taylor had been talking with people in the garage on the night of March 2, and Scott did not tell him what work was being interrupted by Taylor on the night of March 6, but "just the general idea it was interfering with their work." And I note, too, that while Beachboard talked about company policy against visitation by employees, after their shifts, with employees still at work, he acknowledged that it would be "in the realm of permission" for an employee to come back in the plant for some "bona fide reason" and that this included a return to the plant to look at the bulletin board in the wash house to see what his orders might be for the next day.14 Significantly, too, these conversations coincided with a period during which organizational activity by the Union was gaining momentum at the plant, as evidenced by distributions of union literature openly outside the plant during the last part of February and the first part of March. In addition, Taylor had publicly identified himself with the Union by participating in such distribution. In these circumstances , including the fact that Taylor impressed me as a more reliable witness than Beachboard and I credit him in all respects, I find that these conversa- tions were occasioned by Respondent's preoccupation with Taylor's union activity and its opposition to having the Union in the plant and not by Taylor's work per- formance or his being at the plant after hours.15 And I find further that Beachboard's reproach of Taylor on both occasions, underscored as it was on the second occasion by Beachboard's expressions of strong displeasure at Taylor's engaging in union activity,16 inevitably had a coercive impact upon him and other employees. Ac- cordingly, I conclude and find that, by the foregoing con- duct of Beachboard, Respondent violated Section 8(a)(1) of the Act. 17 Upon the basis of the entire record, I make the follow- ing: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 There is no indication in the record that they were unavailable. 14 Taylor testified credibly that he returned on the night of March 6 in order to check this bulletin board and also to note some mechanical de- fects on his truck on a board in the garage and that he did not discuss the Union with anyone. There is no testimony by him as to whether he returned to the plant on the night of March 2 but I am assuming, arguendo , that he did. 11 Beachboard testified that Respondent has no policy opposing sol- icitation for union membership among its employees so long as they are 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of their rights guaranteed in Sec- tion 7 of the Act in the manner above found, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY As I have found that Respondent engaged in unlawful interrogation, surveillance, and coercive threats, I shall order Respondent to cease and desist from the unfair labor practices and to take certain affirmative action designed to effectuate the purposes of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in the case, I recommend that Respondent , its officers , agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Engaging in surveillance of lawful union or or- ganizational activities. (b) Threatening employees that their prounion activity would not do any good or that a failure to limit their at- tendance at union meetings would prove disad- vantageous. (c) Coercing employees by expressions of displeasure at their engaging in union activities. (d) Interrogating employees concerning their union ac- tivities in a manner constituting interference , restraint, or coercion in violation of Section 8(a)(1) of the Act, such as, inquiring concerning (1) their views about the Union; (2) their attendance at union meetings ; (3) the employee or employees responsible for the union activity at the plant ; and (4) what they could get out of the Union. (e) In any like or related manner interfering with, restraining , or coercing employees in the exercise of their right to self-organization, to form , join , or assist Interna- tional Association of Machinists and Aerospace Wor- kers, AFL-CIO, or any other labor organization , to bar- gain collectively through representatives of their own choosing , and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activity. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: not at work and not on company premises. Such a no-solicitation rule would, of course, contravene the Act insofar as it prohibits union solicita- tion during nonworking time. See Phillips Manufacturing Company, 155 NLRB 512. 16 I.e., that Taylor's conduct was making Beachboard "look awfully small," and that Taylor should "tell the Union to take it and cram it." 17 See Masters Sporting Goods, Division of Wilson and Co., Inc., 160 NLRB 1271. GOLD SPOT DAIRY, INC. (a) Post at its plant in Enid , Oklahoma, copies of the attached notice marked "Appendix ." 18 Copies of said notice, on forms provided by the Regional Director for Region 16 , after being duly signed by Respondent's representative , shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in con spicuous 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 al- tered , defaced , or covered by any other material. (b) Notify said Regional Director , in writing , within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.19 11 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 19 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps Respon- dent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our em- ployees that: 1075 WE WILL NOT threaten you that your prounion ac- tivity would not do you any good or that a failure to limit your attendance at union meetings would prove disadvantageous to you. WE WILL NOT coerce you by expressions of dis- pleasure at your engaging in union activity. WE WILL NOT engage in spying upon your lawful union or organization activities. WE WILL NOT interrogate you concerning ( 1) your views about the Union ; (2) your attendance at union meetings ; (3) the employee or employees responsible for the union activity at the plant; and (4) what you could get out of the Union. WE WILL NOT in any like or related manner inter- fere with , restrain , or coerce our employees in the ex- ercise of their right to serganization , to form , join, or assist a labor organization , to bargain collectively through a bargaining agent chosen by themselves, to engage in concerted activities for the purposes of col- lective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act ; or to refrain from any such activities. Dated By GOLD SPOT DAIRY, INC. (Employer) (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board ' s Regional Office, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 334-2921. 350-212 0-70-69 Copy with citationCopy as parenthetical citation