Roscoe Skipper, Inc.

National Labor Relations Board - Board Decisions

Oct 5, 1953

106 N.L.R.B. 1238 (N.L.R.B. 1953)

1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
people in question and that enjoyed by the other nine leadmen,
whom the Regional Director found to have duties of a super-
visory nature , and to which finding no exceptions have been
filed. Under all the circumstances, therefore, we find that
Hattie Lairson, Joe Maierle, Milton O'Grady, Ray Paulus,
and Eddie Schrock are supervisors within the meaning of the
Act, and, contrary to the Regional Director ' s recommendation,
we shall sustain the challenges to their ballots.
[The Board directed that, the Regional Director for the
Twenty-first Region shall , pursuant to the Rules and Regula-
tions of the Board, within ten (10) days from the date of this
Direction, open and count, these ballots and serve upon the
parties a supplementary tally of ballots.]
Member Murdock took no part in the consideration of the
above Supplemental Decision and Direction.
ROSCOE SKIPPER, INC. and INTERNATIONAL UNION OF
UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND
DISTILLERY WORKERS OF AMERICA, LOCAL NO. 234,
CIO. Case No. 10-CA-1610. October 5, 1953
DECISION AND ORDER
On July 22 , 1953, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above - entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and de-
sist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. There-
after the Respondent filed exceptions to the Intermediate
Report.
The Board has reviewed the rulings made by the Trial Ex-
aminer at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions, and the en-
tire record in this case , and hereby adopts the findings, con-
clusions , and recommendations of the Trial Examiner.'
ORDER
Upon the entire record in this case and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
1 We find, in accord with the stipulation of the parties, that the Respondent, engaged in the
business of processing and distributing citrus fruit at Avon Park, Florida, annually sells
outside the State products valued in excess of $1,000,000. We find, therefore, as did the Trial
Examiner, that the Respondent is engaged in-commerce and that it will effectuate the policies
of the Act to assert jurisdiction in this case.
106 NLRB No. 209.
ROSCOE SKIPPER, INC. 1239
spondent , Roscoe Skipper , Inc., of Avon Park, Florida, its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Union
of United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, CIO, and International Union of United
Brewery, Flour, Cereal, Soft Drink and Distillery Workers of
America, Local No. 234, CIO, in the following appropriate
unit:
All production and maintenance employees of Respondent,
excluding office clerical employees, professional and admini-
strative employees , watchmen and guards , truckdrivers, grad-
ing and packing foremen , receiving clerk, and supervisors as
defined in the Act.
(b) In any manner interfering with the efforts of the aforesaid
labor organizations to bargain collectively with it on behalf of
the employees in the aforesaid appropriate unit.
2. Take the following affirmative action , which the Board
finds will effectuate the policies of the Act:
(a) Upon request , bargain collectively with International
Union of United Brewery, Flour, Cereal, Soft Drink and Dis-
tillery Workers of America, CIO, and International Union of
United Brewery, Flour, Cereal , Soft Drink and Distillery
Workers of America, Local No. 234, CIO, as the exclusive
representative of all employees in the appropriate unit de-
scribed above , and embody any understanding reached in a
signed agreement.
(b) Post at its place of business in Avon Park, Florida,
copies of the notice attached to the Intermediate Report as
Appendix A.2 Copies of said notice , to be furnished by the
Regional Director for the Tenth Region, after having been
duly signed by an authorized representative of the Respond-
ent, shall be posted by the Respondent immediately upon the
receipt thereof and maintained by it for sixty ( 60) consecu-
tive days thereafter in conspicuous places , including allplaces
where notices to employees are customarily posted . Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced , or covered by any other
material.
(c) Notify the Regional Director for the Tenth Region in
writing, within ten ( 10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
2 This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner " in the caption the words "A Decision and Order ." In the event that this
Order is enforced by decree of a United States Court of Appeals , there shall be substituted
for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed on October 20, 1952, and an amended charge duly filed on January
14, 1953, by International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, Local No. 234, CIO, herein called the Local, affiliated with Interna-
tional Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America,
CIO, herein called the International, the General Counsel for the National Labor Relations
Board, herein respectively called the General Counsel and the Board, by the Regional Director
of the Tenth Region of the Board (Atlanta, Georgia), issued his complaint dated January 15,
1953, against Roscoe Skipper, Inc., herein called Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act as
amended, 61 Stat. 136, herein called the Act. Copies of the charges, the complaint, and a
notice of hearing were duly served upon the parties.
With respect to the unfair labor practices, the complaint alleges that on or about October
13, 1953, and at all times thereafter Respondent refused to bargain collectively with the Local
and International as the exclusive representative of an appropriate unit of its employees.
Respondent filed an answer in which it denied the commission of the unfair labor practices
ascribed to it
Pursuant to notice a hearing was held at Sebring, Florida, on March 25, 1953, before
Stephen S Bean, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner.
All parties were represented and afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues. The General Counsel and
Respondent argued orally and Respondent submitted a brief on May 7, 1953
Upon the entire record in the case, and from my observation of the witnesses. I make the
following:
FINDINGS OF FACT
It is unquestioned than (1) Respondent is engaged in commerce within the meaning of the
Act, (2) the Local and International are labor organizations admitting into membership em-
ployees of Respondent; (3) on April 17, 1952, a majority of Respondent's employees in an
appropriate unit designated and selected the Union as their collective-bargaining representa-
tive and that the Board's certification of representatives i;sued on April 25, 1952; (4) there-
after the Local and the International requested Respondent to bargain collectively; and (5)
bargaining meetings were held on May 30, 1952, about September 5, 1952, and October 13,
1952
The only question in the case is whether or not Respondent's admitted refusal on October 13,
1952, and thereafter to carry on negotiations with a group of union representatives unless one
George Phillips was excluded therefrom was violative of Section 8 (a) (5) and (1) of the Act.
Phillips started working for Respondent in 1945 as a mechanics' helper. He later became a
truckdriver. He became a member of the Local in November 1951, was active in procuring
other memberships, and for almost a year attended monthly meetings of Respondent's produc-
tion workers and truckdrivers before two elections (one for each classification of employees)
which were held on April 17, 1952 He voted in the truckdrivers' election only. The majority
of ballots cast at the election among the truckdrivers was against the Union. Phillips was
elected secretary-treasurer of the Local at its charter meeting and a member of the negotiat-
ing committee between September 5 and October 13, 1952, at a time when he was no longer
employed by Respondent.
He presented himself at the October 13 meeting in response to notification by Karl Saier,
director of the International His presence was challenged and he was asked to retire but
declined to do so. Respondent stated it would not meet and bargain with the Union in Phillips'
presence This has continued to be Respondent's position.
Respondent's president, Roscoe Skipper, Sr., testified the objections to Phillips being
present were that: he had not been in Respondent's employ since the start of the 1952-1953
season; had not applied for reemployment; he did not think a nonemployee should have the right
to sit in on a contract negotiation and bargain; he felt a man not working for the Company had
no right to tell it what to do; and, that Phillips could convey secret information to other
packers and injure Respondent's business. Skipper further testified that: he could not see
why Phillips was on the committee if he were not working for the C.LO.; if he were working
ROSCOE SKIPPER, INC. 1241
for someone else his allegiance should be with that other person; he thought an employee
would give his employer information about wage rates, packing operators, and methods of
business, he assumed that if Phillips got a job with a competitor, the probabilities would be
that he might give away Respondent's secrets as to experimental packing although he could not
accuse Phillips of doing such a thing, and, that the only matter that was under discussion at
the October 13 meeting was wage rates which were not an item of secret information.
Conclusions
In arguing that its refusal to meet with a group or committee which included Phillips is not
a refusal to bargain in good faith , Respondent relies heavily on N. L R B. v. Kentucky
Utilities Company, 182 F. 2d 810 (C. A. 6), where the court held that tbie refusal of a company
to deal with a negotiator , who had expressed hostility to it and his purpose to destroy the
employer financially , who had not been personally chosen by the employees to represent them,
and who the union representatives had agreed was not a proper person to represent the em-
ployees , was not violative of Section 8 (a) (5) of the Act.
Far more applicable to the situation in the instant case than Kentucky Utilities is the same
court's reasoning in Deena Artware , 198 F. 2d 655 (C. A. 6) where it said:
The Respondent also refused to bargain with Grimes as a member of the Union's com-
mittee In N. L R B. v. Kentucky Utilities Co., 1$3 F. 2d 810 , C. A. 6th, we recognized
the right of management to refuse to bargain with a certain representative of the Union
under unusual facts clearly justifying such refusal . But the facts in this case fall far
short of the facts therein involved . The employees have the right to choose their own
bargaining representative . The evidence fails to sustain Respondent 's contention that
Grimes was not authorized to bargain for the Union . In N. L. R. B. v. Kentucky Utilities
Co., supra , we held that the Act does not require that the bargaining representative be
employ^y the Company with which the Union is bargaining . The Respondent ' s President
had invited Grimes to address the employees at a meeting the day before the election and
had introduced him as the Union 's representative. Grimes' authority to represent the
employees was not challenged at the first bargaining conference . Respondent 's actions in
this respect were a clear violation of the Act. N. L. R. B. v. Jones & Laughlin, 301 U. S.
1, 45. N. L. R B. v. New Era Die Co , 118 F 2d 500 (504, C. A. 3rd; N. L. R B. v.
Blanton Co ., 121 F 2d 564, 571, C A. 8th; N. L. R. B. v Sunbeam Electric an1^v ufacturing
Co., 133 F 2d 856, 860, C. A. 7th.
Section 7 of the Act provides --" Employees shall have the right to bargain collectively
through representatives of their own choosing " The employer has no voice in the selection of
such a representative . The American Laundry Machinery Company v N. L. R. B., 174 F
2d 124 (C. A. 6) enforcing 76 NLRB 981; The Oliver Corporation, 74 NLRB 483, 486;
N. L. R. B. v. Louisville Refining Company, 102 F. 2d 678, 681 , (C. A. 6), N. L. R. B. v.
New Era Die Co., 121 F. 2d 500, 504 , supra In N. L. R. B. v Jones and Laughlin , 301 U. S. 1,
supra , the court said (page 33)--" Employees have as clear a right to organize and select their
representatives for lawful purposes as the respondent has to organize its business and select
its own officers and agents " In N. L. R B. v. Sunbeam Electric Manufacturing Co., 133 F.
2d 856, supra the court said at page 860--"Who is to represent the employees as bargaining
agent and the manner of selection are matters which belong exclusively to the employees.
The statute has made it so, and it is the duty of the employer to keep hands off and main a
strictly neutral attitude." The Act does not require that the bargaining representative be a
union composed exclusively of the employees of an individual company nor even the members
of a particular union. Pueblo Gas and Fuel Company v N. L. R B., 118 F. 2d 304 (C. A. 10).
On the authority of these cases I hold without merit Respoiident ' s contention that it was
justified in refusing to bargain with the Union with Phillips present because he was not at the
time in its employ and not included in the unit.
As to Respondent ' s further contention that Phillips might harmfully disclose to competitors
information acquired at bargaining sessions , it is quite apparent that any genuine apprehension
it had on this score was based solely on conjecture . No one will deny that the principle of
collective bargaining tends to remove a shield of secretiveness from an employer 's business
operations . But even apart from this sometimes unwelcomed reality , no reason was advanced
to Impel the belief that Phillips would be any more likely to divulge Respondent 's pay structure
to employees working in rival plants than would any other of Respondent ' s 60-odd employees.
Moreover , it would be entirely unrealistic to assume that information concerning the wages
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid by the various businesses in the citrus packing and distributing industry in central Florida
would not promptly become generally known by all interested parties through the normal
channels of community conversation Nor can much weight be given the argument that the
mere participation of a nonemployee truckdriver in conferences concerning hours, wages, and
terms and conditions of employment might result in a disclosure of secret methods or
processes to competitors Assuming Respondent possesses any special expertise not shared
by others , far more informative access to its discovery than through Phillips exists.
Finally, here , unlike in the clearly distinguishable case of N. L. R. B. v Kentucky Utilities
Company, 182 F. 2d 810 , supra ( where , as above pointed out , the barred negotiator was intent
on destroying the business , not chosen by the employees , and admittedly an improper repre-
sentative), there is no evidence sufficient to warrant the conclusion that Phillips, a man I
listened to and observed, would not join in negotiations in good faith with an open mind and a
sincere desire to reach an agreement in a spirit of cooperation
Upon consideration of the entire record, I conclude and find then that on October 13, 1952,
and at all times since Respondent has refused to bargain collectively with the Union as the
exclusive representative of all employees in the appropriate unit , and that by such refusal
Respondent has interfered with , restrained , and coerced its employees in the exercise of
rights guaranteed by the Act
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth above, occurring in connection with the operations of
Respondent in interstate commerce 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 commerce and the free flow of commerce
THE REMEDY
It has been found that Respondent has engaged in the unfair labor practice of refusing to
bargain collectively with the chosen representatives of its employees . It will therefore be
recommended that it cease and desist therefrom . It will further be recommended that
Respondent bargain collectively , upon request , with the Union and its representatives as the
exclusive representative of its employees in the aforesaid appropriate unit.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, I
make the following.
CONCLUSIONS OF LAW
1. International Union of United Brewery , Flour, Cereal, SoftDrink and Distillery Workers
of America , CIO, and its affiliate International Union of United Brewery, Flour , Cereal,
Soft Drink and Distillery Workers of America, Local No. 234, CIO , constitute a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of Respondent excluding office clerical em-
ployees , professional and administrative employees , watchmen and guards , truckdrivers,
grading and packing foremen, receiving clerk , and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
3. At all times since April 17, 1952 , International Union of United Brewery , Flour, Cereal,
Soft Drink and Distillery Workers of America, CIO , and its affiliate International Union of
United Brewery , Flour , Cereal , Soft Drink and Distillery Workers of America, Local No.
234, CIO, has been the exclusive representative of all the employees in the aforesaid unit
for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act.
4 By refusing on and after October 13, 1952, to bargain collectively with the aforesaid
Union as the exclusive representative of the employees in the appropriate unit , Respondent
has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (a)
(5) of the Act.
5 By the aforesaid unfair labor practices , Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act , thereby
engaging in an unfair labor practice within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6)
and (7) of the Act
[Recommendations omitted from publication ]
MRS. TUCKERS' PRODUCTS 1243
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL bargain collectively upon request with International Union of United Brewery,
Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, and International
Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America,
Local No. 234, CIO, as the exclusive representative of all employees in the bargaining
unit described herein, with respect to grievances, labor disputes, wages, rates of pay,
hours of employment, and other conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement. The bargaining unit is:
All production and maintenance employees at our Avon Park, Florida, plant, exclud-
ing office clerical employees, professional and administrative employees, watchmen
and guards, truckdrivers, grading and packing foremen, receiving clerk, and super-
visors as defined in the Act.
WE WILL NOT in any manner interfere with the efforts of the above - named union or
any of its representatives , including George Phillips , to bargain collectively with us,
or refuse to bargain with said union, as the exclusive representative of all our employees
in the bargaining unit set forth above.
ROSCOE SKIPPER, INC.,
Employer.
Dated ................ By..............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
MRS. TUCKERS' PRODUCTS, DIVISION OF ANDERSON,
CLAYTON & COMPANY, INC. and OIL WORKERS INTER-
NATIONAL UNION, CIO, Petitioner. Case No. 13-RC-3308.
October 7, 1953
AMENDED DECISION, ORDER, AND SECOND DIRECTION OF
ELECTIONS
On July 31, 1953, the Board issued its Decision and Direction
of Election' in the above-entitled proceeding directing an
election at the Employer's Jacksonville, Illinois, plant, which
at that time was nearing completion, in a unit consisting of all
production and maintenance employees, including truckdrivers,
plant clericals, and supervisory trainees, but excluding office
clericals, professional and technical employees, guards, watch-
men, gatemen, and supervisors as defined in the Act. In view
of the fact that the record disclosed that the Employer did not
anticipate having a substantial and representative number of
1106 NLRB 533.
106 NLRB No. 212.