Kellogg Mills

National Labor Relations Board - Board Decisions

Jun 8, 1964

147 N.L.R.B. 342 (N.L.R.B. 1964)

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has considered the Petitioner 's motion, the Employer's
memorandum , and the entire record in these cases , and hereby grants
the Petitioner 's motion, in part, as appears in the Direction below 2
Accordingly, we shall direct the Regional Director to amend the
notice of election as indicated below.
DIRECTION
IT Is HEREBY DIRECTED that the Regional Director include in the no-
tice of election to be issued in this matter the following paragraph:
NOTICE TO ALL VOTERS
The elections conducted on June 25, 1963, were set aside because
the National Labor Relations Board found that certain conduct
of the Employer interfered with the employees' exercise of a free
and reasoned choice. Therefore, new elections will be held in ac-
cordance with the terms of this notice of election. All eligible
voters should understand that the National Labor Relations Act,
as amended, gives them the right to cast their ballots as they see
fit, and protects them in the exercise of this right, free from inter-
ference by any of the parties.
2The Petitioner's request that copies of the Board's Decision be posted is denied.
The Employer, in its opposition memorandum, contends that to grant the motion would
unduly prejudice it because, such a statement, having the imprimatur of the National
Labor Relations Board, would suggest to the employees that in view of the Employer's
misconduct the Board favored a vote for the Petitioner in the second election. It argues
further that, in any event, the Petitioner had opportunity to, and did, inform the em-
ployees of the Board's Order. We find no merit in these contentions. Contrary to the
Employer, we do not believe that the notice in any way indicates that the Board favors
the Petitioner in the second election. The primary purpose of the notice is to provide
official notification to all eligible voters, without detailing the specific conduct involved,
as to the reason why the elections were set aside.
Kellogg's, Inc. d/b/a Kellogg Mills and American Federation
. of Grain Millers . Case No. 19-CA-2729. June 8, 1964
DECISION AND ORDER
On March 31, 1964, Trial Examiner David F. Doyle issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision.
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].
147 NLRB No. 41.
KELLOGG MILLS 343
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 exceptions, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Kellogg's,
Inc. d/b/a Kellogg Mills, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order. However, instead of the notice attached to the Trial Exam-
iner's Decision marked "Appendix," the Respondent shall post the
attached notice marked "Appendix I." i
3 In 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."
APPENDIX I
NOTICE TO ALL EMPLOYEES
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 our employees that :
WE WILL bargain collectively, upon request, with the American
Federation of Grain Millers, as the exclusive bargaining repre-
sentative of all employees in the bargaining unit described below
concerning rates of pay, wages, hours of employment, and other
conditions of employment, and, if an understanding is reached,
embody it in a signed agreement. The bargaining unit is:
All mill employees and the truckdrivers, excluding office
clericals, guards, professional employees, and supervisors as
defined by the Act.
All of our employees are free to become, remain, or refrain from
becoming or remaining, members of the above-named Union or any
other labor organization, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized by Section 8 (a) (3) of
the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
KELLOGG'S, INC. d/b/a KELLOGG MILLS,
Employer.
Dated---------------- By-------------------------------------
. (Representative ) . . (Title)
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, 327 Logan Building, 500 Union Street, Seattle, Washington,
Telephone No. Mutual 2-3300, Extension 553, if they have any ques-
tion concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding came on regularly to be heard by Trial Examiner David F. Doyle
at Boise, Idaho , on November 26, 1963, on complaint of the General Counsel and
the answer of Kellogg Mills.' The complaint , in substance, alleged that the Re-
spondent had refused to bargain with the Union as the exclusive bargaining repre-
sentative of its employees in an appropriate unit, thereby violating Section 8(a)(5)
and (1 ) of the Act. The answer of the Respondent denied the commission of the
alleged unfair labor practices , and alleged that it had a good-faith doubt of the
Union 's majority status because the Union had not been certified by the Board pur-
suant to a Board-conducted election.
' At the hearing, the parties were represented by the above-named counsel who
were afforded a full opportunity to present evidence , examine and cross-examine.
witnesses, and to present oral arguments and briefs on the issues?
From my observation of the witnesses and upon the entire record in the case,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Pursuant to the pleadings and a stipulation of the parties, I find that the Company
is, and has been at all times material herein , an Idaho corporation. During the
year ending December 21, 1962 , the Company , in the course and conduct of its
business operations , purchased goods or services valued in excess of $50 ,000 directly
from suppliers located in states ' other than Idaho . Consequently , I find that the
Company is an employer within the meaning of Section 2(2) of the Act and is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings and a stipulation of the parties also establish ; and I find , that at all
times material herein the Union is, and has been, a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
There is no substantial dispute between the parties as to the essential facts of this
case. The facts are derived from certain stipulations of counsel and from the
uncontradicted testimony of two witnesses , A. L. Stevens and Clemen G . Walsh.
The Appropriate Unit
It is undisputed that the Company conducts its business at Nampa, Idaho, where
it engages in the business of milling and selling a variety of agricultural products
1 The charge herein was filed on September 18, and the complaint was issued on
October 25.
In this Decision , Kellogg Mills is referred to as the Respondent or the Company;
American Federation of Grain Millers , as the Union ; the Labor Management Relations
Act, as amended , as the Act ; the National Labor Relations Board , as the Board ; the
General Counsel of the Board and his representative at the hearing , as the General
Counsel.
All dates in this Decision are In the year 1963 unless otherwise specified.
2 the General 'Counsel , on December 4, filed a motion to correct the transcript of testi-
mony as to three minor items. There being no objection by Respondent , the motion is
hereby granted and the corrections ordered.
KELLOGG MILLS 345
such as fertilizers, feeds, seeds, and other commodities. At the hearing, the parties
stipulated that the following described unit of the Company's employees constitutes
an appropriate unit for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All mill employees and the truckdrivers, excluding office clericals, guards,
professional employees, and supervisors as defined in the Act.
The Union's Majority Status
A. L. Stevens testified credibly that he is the international representative for the
Union in the Nampo, Idaho, area. In the latter part of June he had several meetings
with employees at the Company for the purpose of organizing them for the Union.
At meetings in late June and early July he obtained from five employees signed
cards which made application for membership and authorized the Union to repre-
sent each employee.
On July 12 Stevens sent a letter to the Company, to the attention of George
Kellogg, notifying the Company that the Union represented a majority of the
Company's employees in an appropriate unit and asking for a meeting at which
they could negotiate an agreement covering wages, hours, and working conditions
of the employees.
On July 16 George E. Kellogg, on behalf of the Company, replied to Stevens,
.stating that he would be happy to meet with him at any convenient time and place.
Upon receipt of Kellogg' s letter, Stevens, on July 16, went to the office of the
Company and discussed the matter with Kellogg. When the conferees reached the
point of proving the Union's majority status in the appropriate unit, Stevens pro-
posed that the parties select a local clergyman who could check the Union's authori-
zation cards against a list of the employees supplied by the Company. This was
agreeable, so Kellogg telephoned Father James L. Pratt, S.M., pastor of St. Paul's
Catholic Church, Nampa, Idaho, and on behalf of the Union and the Company
requested Father Pratt to conduct the card check to determine the question of
majority. On the same date Kellogg sent a list of employees to the priest, and
Stevens took the Union's authorization cards to the rectory. At the hearing the
parties stipulated that on that date there were nine employees in the appropriate unit.
Father Pratt checked the Union's authorization cards against the list of employees
and stated that the Union had a majority. Pursuant to the request of Stevens,
Father Pratt called Kellogg at the Company and told him that the Union represented
a majority of the nine employees in the appropriate unit.
Stevens testified that on or about July 25 he had a meeting with George Kellogg,
representing the Company, to which he submitted to Kellogg a proposed labor agree-
ment. This agreement was typical for the type of operation in which the Company
engaged . At two subsequent meetings in the following week Kellogg discussed the
contract with Stevens and made several suggestions for changes. However, at a
meeting on August 5, Kellogg stated that he considered the signing of a labor.
agreement as one of "the biggest things he had ever undertaken," so he wanted to
discuss the matter with his attorney.
On August 8, Eli A. Weston, counsel for the Company, wrote Stevens as follows:
I have had a conference with Mr. Kellogg of the Kellogg Mills at Nampa
with reference to the above case. From my preliminary examination, it would
appear that the proceedings up to date have been somewhat irregular-if not
irregular, certainly unusual.
Before we will consent to any negotiations, we will have to insist upon an
election after a hearing. I am sure you will agree that you should have certifi-
cation before you ask us to do any bargaining. If you have the required show-
ing, I suggest you petition the Board for an election.
Stevens testified that from the date of the card check by Fater Pratt up until
August 8th, the Company had raised no question about the Union's majority status
in the appropriate unit.
Stevens also testified that on numerous occasions, after August 8, he requested
Weston to meet with him for the purpose.of negotiating a contract. On all of
these occasions, Weston replied that the Company was not going to bargain "until
such time as you are certified."
Clemen G. Walsh testified credibly that when the Union appeared to be unable
to obtain a contract from the Company, the five men who had signed authorization
cards for the Union then signed cards authorizing a local of the Teamsters to
represent them. However, the Teamsters' representative later told Walsh and the
others that the Teamsters' petition had been dismissed by the Regional Office of the
Board because the instant unfair labor charge was pending against the Company.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties stipulated that the International Brotherhood of Tear. ters, Cannery
Division, Local 943, filed an RC petition to represent the employees in the appro-
priate unit herein on September 18, and that the Regional Director , Nineteenth
Region , dismissed that petition because the instant charge of unfair labor practices
against the Company was then pending.
The parties also stipulated that counsel for the Company on November 4, filed
an RM petition involving the appropriate unit of employees which was also dis-
missed by the same Regional Director for the same reason.
Concluding Findings
Upon the undisputed facts set forth above , I find that the Union is the majority
representative of the Company's employees in a unit appropriate for collective bar-
gaining. Furthermore, from all the evidence it is clear that in the card check con-
ducted by Father Pratt, the Union demonstrated its majority status to the satisfaction
of Father Pratt and of Kellogg, the representative of the Company. It is not dis-
puted that in approximately three meetings, Kellogg recognized and bargained with
the representative of the Union as to the terms of a labor agreement . It is likewise
undisputed that no question as to the majority status of the Union was raised until
the interposition of Weston , counsel for the Company , in these events on August 8.
It is a peculiar circumstance that though Weston , in the Company's answer , alleges
a good-faith doubt of the Union's majority in his letter of August 8 to the Union,
he made no mention of such a doubt . In that letter , his position was that the
Company would not recognize the Union as the representative of the Company's
employees until it had received certification after an election . ` That position is not
tenable.
In Fred Snow, Harold Snow and Tom Snow d/bla Snow & Sons, 134 NLRB 709,
the Board disposed of a similar contention in the following language:
When initially faced with a demand for recognition , the Respondent refused
to recognize the Union on the ground that it doubted the Union's majority
status. Later in the same day, however , the Respondent through one of its
partners agreed to a check of the signature cards presented by the Union which
check indicated that a majority of Respondent's employees had applied for
union membership . The Respondent nevertheless continued in its refusal to
recognize the Union and bargain with it and insisted on a Board election
although it did not question the accuracy or the propriety of the card check,
asserting , in that connection , that it never considered the card check binding on
it. As to the latter, we see no warrant for invalidating the card check and
therefore find that Respondent had no reasonable doubt as to the Union's
majority status. That this is so, is further apparent from Respondent's position
that it wanted an election because the employees might change their minds.
The Board has held that the right of an employer to insist upon a Board-
directed election is not absolute . Where, as here, the Employer entertains no
reasonable doubt either with respect to the appropriateness of the proposed unit
or the Union 's representative status, and seeks a Board-directed election with-
out a valid ground therefor, he has failed to fulfill the bargaining requirements
under the Act. Accordingly, by refusing to bargain with the Union after its
majority status in an appropriate unit had been established , the Respondent
violated Section 8(a)(5) and (1) of the Act. [Emphasis supplied.]
Upon the entire record herein , I find that the Respondent has violated Section
8(a)(5) and ( 1) as alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company as set forth in section III, above , occurring in con-
nection with the operations of the Company as described in section I, above, have
a close, intimate , and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
KELLOGG MILLS 347
V. THE REMEDY
Having found that the Company has engaged in certain unfair labor practices, it
will be recommended. that it cease. and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Union represents a majority of employees in the above-
described appropriate unit and that the Company has. refused to bargain collectively
with the representatives of its employees, I will recommend that the Company,
upon request, shall bargain collectively with the Union as the representative of its
employees.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAw
1. American Federation of Grain Millers is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. Kellogg's, Inc. d/b/a Kellogg Mills, is an employer within the meaning of Sec-
tion 2(2) of the Act.
3. All mill employees and the truckdrivers, excluding office clericals, guards, pro-
fessional employees, and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
4. The Union above named, at all times since July 16, 1963, up to and including
the present, was and is the representative of the employees in the collective-
bargaining unit described above.
5. By refusing on July 16, 1963, and thereafter, to bargain collectively with the
Union, the Company has engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act, as amended.
. 6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that Kellogg's, Inc. d/b/a Kellogg Mills,
their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with the representative of its employees in the above-
described appropriate unit.
(b) In any other manner, interfering with the efforts of the exclusive representa-
tive of its employees to bargain collectively in their behalf.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively 'with the exclusive bargaining representa-
tive of its employees in the appropriate unit aforesaid with respect to wages, rates of
pay, hours of employment, and other conditions of employment, and if an under-
standing is reached, embody such understanding in a signed agreement.
(b) Post at its plant in the State of Idaho, where the employees in the appropri-
ate unit are employed, copies of the notice marked "Appendix I." 3 [Board's
Appendix I substituted for Trial Examiner's Appendix.] Copies of said notice, to
be furnished by the Regional Director for the Nineteenth Region, .shall, after being
duly signed by the Respondent's representative, be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are
customarily posted . Reasonable steps shall be taken to insure that such notice is
not altered, defaced, or covered by any other material.
O In the event that this Recommended Order be 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 be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and
Order."
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for the Nineteenth Region , in writing, within
20 days from the date of receipt of this Decision, what steps the Respondent has
taken to comply herewith.4
It is further recommended that, unless on or before 20 days from the date of re-
ceipt of this Decision , the Respondent shall notify the said Regional Director, in
writing, that it will comply with the foregoing recommendations, the National Labor
Relations Board issue an order requiring the Respondent to take the action aforesaid.
In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps the Respondent has taken
to comply herewith."
Clark-Inland Cartage, Division of Consolidated Freightways and
Garland J. Jones
Local Freight Drivers , Local No. 208, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen & Helpers of
America and Garland J. Jones. Cases Nos. 21-CA-5251 and
£1-CB-2074. June 8, 1964
DECISION AND ORDER
On March 5,1964, Trial Examiner Louis S. Penfield issued his Deci-
sion in the above-entitled proceeding finding that the Respondents had
not engaged in any unfair labor practices as alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in his attached Decision. Thereafter, the Charging Party
filed exceptions to the Trial Examiner's Decision.
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
Leedom].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner.
1 We are unable to agree with the opinion of our dissenting colleague . His position
rests on the conclusion that the "72 hour notice" constituted an illegal attempt to cause
the Employer to discriminate against Jones. Although the bare words of the notice could
147 NLRB No. 45.