Leaf Brands, Inc..

National Labor Relations Board - Board Decisions

Dec 12, 1952

101 N.L.R.B. 1039 (N.L.R.B. 1952)

LEAF BRANDS , INC. 1039
We find that all oilers and greasers of production machinery and
equipment at the Employer's plant at New Brighton, Minnesota, ex-
cluding all other employees, office and clerical employees, guards, the
general foreman, shift foreman, subforemen , and other supervisors
as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
LEAF BRANDS, INC. and DOROTHY Z. MCCONVILLE. Case No. 13-CA-
920. December 12, 1950
Decision and Order
On July 28, 1952, Trial Examiner John H. Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel and the charging
party, with Chicago Joint Board, Retail, Wholesale & Department
Store Employees Union, CIO,1 hereinafter called the Union, filed
exceptions to the Intermediate Report and supporting briefs, and
the Respondent filed a brief supporting the report.
The Board 2 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendation of the Trial
Examiner with the modifications noted below.3
Order
IT IS HEREBY ORDERED that the complaint herein against Leaf
Brands, Inc., be, and it hereby is, dismissed.
I Otherwise known in the record as Chicago Joint Board, Retail, Wholesale , and Depart-
ment Store Union, CIO.
I 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 Herzog and Members Styles and Peterson].
I The Trial Examiner inadvertently found that the Union was on the ballot in the
elections held among the Respondent 's employees in Case No. 13-RC-1650 . Our records
disclose that Local 15 of Retail, Wholesale & Department Store Employees Union, Bakery
and Confectionery Workers, CIO, and not the Union as such , participated in the elections.
101 NLRB No. 166.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed by Dorothy Z. McConville, an individual, the General
Counsel of the National Labor Relations Board, respectively called herein the
General Counsel and the Board, by the Regional Director for the Thirteenth
Region (Chicago, Illinois), issued a complaint dated February 7, 1952, against
Leaf Brands, Inc., herein called the Respondent, alleging that the Respondent has
engaged in and is engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, herein called the Act.
With respect to the unfair labor practices, the complaint alleges that on or
about September 13, 1951, and thereafter, the Respondent failed and refused to
employ Dorothy Z. McConville because she had engaged in activities on behalf
of Chicago Joint Board, Retail, Wholesale and Department Store Union, CIO,
herein called the Union.
The Respondent filed an answer on or about February 15, 1952, in which it
admitted the jurisdictional allegations of the complaint, but denied the commis-
sion of any unfair labor practices.
Pursuant to notice, a hearing was held at Chicago, Illinois, on April 21, 1952,
before the undersigned Trial Examiner. All parties were represented by counsel.
At the close of the General Counsel's case, the Respondent moved to dismiss the
complaint for lack of proof. The motion was denied. The Respondent renewed
its motion to dismiss the complaint at the close of the whole case. Ruling on
the motion was reserved. The motion to dismiss is disposed of as hereinafter
indicated.
Counsel for the General Counsel and the Respondent presented oral argument
on the record at the conclusion of the case, and have filed briefs with the Trial
Examiner.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Illinois corporation, having its principal office and
four plants located in Chicago, Illinois, where it is engaged in the manufacture
of confectionary products.
In the course and conduct of its business, the Respondent uses annually raw
materials valued in excess of $500,000, of which approximately 50 percent is
purchased and shipped from points outside the State of Illinois. During the
same period, the Respondent manufactures finished products valued in excess of
$5,000,000, of which approximately 50 percent is sold and transported in interstate
commerce from its plants to places outside the State of Illinois.
The Respondent admits in its answer that it is engaged in commerce within
the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Chicago Joint Board, Retail , Wholesale and Department Store Union , 010, is a
labor organization which admits to membership employees of the Respondent.
LEAF BRANDS, INC.
III. THE ALLEGED UNFAIR LABOR PRACTICES
1041
During 1950 and 1951, elections were conducted by the Board among Re-
spondent's employees. The Union and the International Longshoremen's and
Warehousemen's Union were on the ballot in each election. The first election,
held on December 19, 1950, was set aside by the Regional Director. A majority
was not obtained by either union at the second election on February 20, 1951.
The Union won the third election which was held on March 27. The evidence
shows that before the second election the Respondent sent three letters to its
employees. The third letter, dated February 16, 1951, urged them to vote for
"neither union."
After the last election the Respondent and the Union negotiated a new
collective bargaining agreement which included a "union shop." 1
Dorothy Z. McConville, the charging party herein, was employed by the Union
as an international representative. Since 1948 she met frequently with repre-
sentatives of the Respondent, including Don Moss, Respondent' s personnel
director, during contract negotiations and on grievance matters. She also con-
ducted several organizational drives to increase the union membership in the
plants.
On September 13, 1951, McConville appeared at the Respondent' s office and
applied for a job. Moss refused to employ her. Concerning her application for
employment, McConville testified, in substance, that after seeing a help wanted
advertisement of the Respondent she went to the office shortly before 8 a. in.; that
when she asked a guard if the Respondent was doing any hiring, he told her
that the Company had been "doing quite a bit" as it had "government work" ;
that she filled out an application blank and handed it to the guard ; that while
she was waiting in the office, two other women came in and got application
blanks ; that Foreman Bill Wrightsman entered the office and told Flo Johnson,
Moss' assistant, that lie needed two girls for the next morning ; that Wrightsman
then talked to the two other applicants in the office and told them to report for
work the following morning ; that Johnson then took the two women to her
office ; that thereafter Johnson told her, "Dorothy, you had better wait and see
Mr. Moss" ; and that at about 8: 45 a. in. she talked with Moss. With respect to
her conversation with Moss, McConville testified as follows :
... And about a quarter to nine Mr. Moss come in, and he went in his
office, and then he came back out with my application card in his hand. He
asked me if that was my application and I said that it was, and then he called
me into his office and he said to me, "What is the matter? Aren't you with
the union any more?" And then I said to him "no," and I explained to him
that I was looking for a job because my doctor had said, or had given me
instructions to get out of organizing work and to get into the type of work
where I could work regular hours and eat regular meals, and so forth,
and then he said something about "You have too many brains to work in
a factory, and why did you come to Leaf Brands?" So I explained to him
that I enjoyed factory work and that I had come there for other reasons-
first of all, that they had had an ad in the newspaper and that they were
hiring ; second, that I had experience in the candy business and knew that
1 The Respondent's answer alleges that the new contract was entered into on September
13, 1951.
The evidence indicates that the Respondent and the Union had a contractual relation-
ship since 1945, with a union-security clause since 1948.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I could handle the work at Leaf Brands, and then he asked me if I had tried
anywhere else, and I said that Mr. Anderson had tried to get me on at
Carr-Consolidated Company. . . . He is our president, but I said that at
that time they had 40 people laid off and that they could not hire me and
that I wanted to work steady, and that I would have to work at a big
plant, such as Carr and Leaf Brands, or big plants that were unionized in
their union, and then he asked me something about that-something to the
effect of "Did I want to be in the industry, or why didn't I try some place
else," and then I explained to him that working in non-union shops would
mean that I would have to falsify my union work record, and that they
wouldn't hire union organizers, or that they wouldn't hire union organizers
if I falsified my union work record, and naturally, I did not want to do that,
because when you do that, that is grounds for discharge, and then you have
that hanging over your head all of the time, and I didn't see any reason why
Leaf Brands should not hire me, because I could handle the job. Then he
said something to me about getting me a job-that he had had connections
with other plants, or words to that effect-that he had connections at other
plants, and then I said to him that I didn't want to do that, because I wanted
to stay in the industry, because I knew that I could do that type of work.
Then he said to me, "Well, Dorothy, I will have to check this with the
higher-ups, because of your past connections with the union." He said, "I
will let you know about it." .. .
McConville testified that she told Moss that she was on a 90-day leave of absence
from the Union but that she did not "expect" that she "could go back." She
further testified that she had a telephone conversation with Moss some few days
later ; that he told her that the Company could not use her ; that when she asked
him the reason, he said, "You know what the problem is, just everything in
general" ; that she told him that it was an unfair labor practice to refuse to hire
people because of their union connections ; that he then said, "Give me a couple
of days and then I will let you know next week" ; and that she did not hear from
Moss thereafter.
Concerning his conversation with McConville on September 13, Moss testified
as follows :
I asked her what she was doing there. . . . She said, "I am applying for
a factory job." I said, "Are you no longer with the union?" She said, "Well,
I am on a temporary leave of absence-90 days from the union, because of
doctor's orders . . ." I asked her if she was really interested in working at
the factory, and she said that she was, and I then told her that I did not
have a job for her, but if the picture changed, or if I heard of something with
some other company, that I would be glad to let her know.
Moss denied that he told McConville that it would be necessary for him "to
check this with the higher-ups," or that he told her he could not give her a job
because she had worked for the Union. He testified that she called him the next
day; that when she accused him of not hiring her because of her union activities,
he replied, "Dorothy, I did not say that" ; and that McConville then hung up and
nothing further was said.
Henry Anderson, president of the Union, testified that Moss called him shortly
after September 13; that Moss inquired about McConville's status with the Union ;
that he told Moss that she was on a "leave of absence" from the Union because
GLOBE WIRELESS , LTD. 1043
of a nervous condition ; and that when he asked Moss why McConville was not
hired, Moss "indicated that there were no Jobs available."'
Moss testified that he did not hire McConville mainly because he had heard
"a lot of conversations and rumors around the place" to the effect that McConville
had "Red tendencies ," and because it was "against the policy of the company"
to hire a person "on a leave of absence status , from another job."' It was
stipulated at the hearing "that during the months of August, September, and
October of 1951, a considerable number of new female employees were hired"
by the Respondent.
I find that the General Counsel has failed to sustain the burden of proving that
the Respondent's refusal to hire McConville was discriminatory. The under-
signed was impressed favorably with Moss as a witness. He appeared to be#
honest and reliable ; and, contrary to the contentions in the General Counsel's
brief, after a review of the record I do not find any serious conflicts in his testi-
mony which change my observations at the hearing. Accordingly, I credit Moss'
version of his conversations with McConville.
It is true that the Respondent sent letters to its employees urging them to vote
for "neither union ." If, as contended by the General Counsel, this conduct shows
an antiunion bias, it is my opinion that it was dissipated by reason of the fact
that the Respondent thereafter entered into a union-shop contract with the
Union. Further, the alleged antiunion conduct was remote from the date of the
refusal to hire. The last letter was dated February 16, 1951, or approximately
7 months before the incident involved herein.
From all the evidence I find that the Respondent did not commit an unfair
labor practice by refusing to hire Dorothy Z. McConville on September 13, 1951,
and thereafter 4
CONCLUSIONS OF LAW
By failing and refusing to hire Dorothy Z. McConville on September 13, 1951,
and thereafter , the Respondent has not engaged in any unfair labor practice.
[Recommendations omitted from publication in this volume.]
2 Moss testified that he called Anderson in order "to find out what the status of Dorothy
Zabin (McConville) was with her previous employer-with the Union."
7 Moss also testified that there were several minor reasons for the refusal to hire. He
testified that McConville "lived a considerable distance from work," and that she had
"no packing experience for a period of around five or six years, and only with an ex-
perience at that time for a period of approximately two months."
' Without passing upon the merits of Respondent 's proposed finding relating to "Back-
ground" on page 3 of its brief, it is rejected. Respondent 's second proposed finding re-
lating to the refusal to hire, on page 6 of its brief , is accepted.
GLOBE WIRELEss , LTD. and COMMUNICATION WORKERS OF AMERICA,
CIO, PETITIONER . Cake No. 2O-RC-1258. December 15, 1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Jerome H. Brooks, hearing
101 NLRB No. 176.
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