Shedd-Brown Mfg. Co.

National Labor Relations Board - Board Decisions

Mar 23, 1953

103 N.L.R.B. 905 (N.L.R.B. 1953)

SHEDD-BROWN MFG. CO. 905
presented by that case and are to the effect that absent "a general pattern and
plan of anti-union hostility" or promises of benefit or threats of reprisal , employer
interrogations of employees , under the circumstances of the Winer case , are not
violative of the Act . Although the matter is not free from doubt, the undersigned
is persuaded that the facts and circumstances of the Winer case are comparable
to those of the instant proceeding and make the conclusions reached in that case
controlling upon the issues herein involved . As found above , the complaint's
allegations as to the discharge of Stewart were wholly without merit . Moreover,
McFarlin 's interrogations of employees Smith and Stewart were not accompanied
by promises of benefit 10 or threats of reprisal and are , in themselves , insufficient
to establish a "general pattern and plan of anti-union hostility " on the part of the
Respondent . It is accordingly found that McFarlin 's statements and queries
addressed to employees Smith and Stewart were not violative of the Act. In
conclusion , the undersigned finds that the Respondent has not engaged in viola-
tions of Section 8 (a) (1) and ( 3) of the Act and will recommend that the com-
plaint be dismissed in its entirety.
On the basis of the foregoing and upon the entire record in the case, the under-
signed makes the following:
CONCLUSIONS OF LAW
1. Waffle Corporation of America is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. Bakery & Confectionery Workers International Union of America, Local
No. 173, AFL, is a labor organization within the meaning of Section 2 (5) of
the Act.
3. Waffle Corporation of America has not engaged in unfair labor practices
as alleged in the complaint within the meaning of Section 8 (a) (1) and (3) of
the Act.
[Recommendations omitted from publication in this volume.]
10 In reaching this conclusion , the undersigned has considered the fact that in March
1952 , McFarlin told Stewart that the latter would soon be receiving an automatic 5-cent
an hour increase . This statement was one of fact and cannot be construed to be a promise
of benefit , since under the Respondent 's wage policy , enunciated and explained to the
employees early in 1952, an employee automatically received an increase of 5 cents an hour
after being in the Respondent 's employ for 6 months . Stewart completed her first 6-
month period of employment by the Respondent on March 10, 1952.
SHEDD-BROWN MFO. CO. and UNITED PAPERWORKERS OF AMERICA,
C. I. O. and DULY AUTHORIZED COMMITTEE OF PRODUCTION EM-
PLOYEES OF SHEDD-BROWN MFG. CO., ALSO KNOWN AS SHEDD-BROWN
PLANT ASSOCIATION, PARTY TO THE CONTRACT. Case No. 18-CA-290.
March 03, 1953
Supplemental Decision and Order
On January 28, 1952, the Board issued its Decision and Order in
the above-entitled case.' Thereafter, Shedd-Brown Plant Associa-
tion, herein called the Association, and the Respondent, each filed a
1 102 NLRB 742.
103 NLRB No. 107.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition requesting the Board to modify or set aside its Decision and
Order in certain respects. The Respondent objects to paragraph 2 (a)
of the Board's Order which requires the Respondent to reinstate and
make whole the 2 employees named therein who the Board found
were discriminatorily discharged and the 14 employees named therein
whom, as found by the Board, the Respondent discriminatorily failed
and refused to recall to work following an economic layoff. The Re-
spondent also objects to the Order insofar as it directs the Respondent
to reimburse its employees for any association dues deducted from their
wages and paid to, or being retained for, the Association, by paying
to each of them a sum of money equal to the total of such dues deducted
from his or her wages.2 The Association objects to paragraph 2 (c)
of the Order which directs the Respondent to withdraw recognition
from the Association as bargaining representative of its employees,
and completely to disestablish the Association as such representative.
With respect to the first of its objections, the Respondent asserts,
in effect, that the 16 employees ordered reinstated were hired in 1950
for seasonal terms, and that these employees knew when they were
hired that their employment would terminate in that year. The Re-
spondent contends that because these employees had no right or
expectation of employment beyond the season for which they were
hired, the Board's order requiring the Respondent to reinstate them
and to make them whole for losses resulting from the Respondent's
discrimination, should have been limited to such employment or earn-
ings of which they were deprived during the 1950 season, and should
not have extended to any subsequent period ; that by so failing to limit
the order in this case the Board has overlooked the fact that the
employees involved were seasonal employees. The Respondent ap-
parently has misconstrued the Board's Decision and Order. The
Trial Examiner and the Board were clearly cognizant of the seasonal
character of the Respondent's operations, and the fact that the em-
ployment of the Respondent's employees was justifiably terminable at
the close of the 1950 season in December of that year. These circum-
stances, however, do not preclude a finding that the Respondent
violated Section 8 (a) (3) of the Act by refusing to recall employees
upon the resumption of operations in 1951 because of the past union
interests and activities of these employees. The record amply dem-
onstrates that the Respondent's practice was to recall its laid-off
employees upon resumption of operations following a seasonal or
economic shutdown. It did so near the end of the 1950 season, and
again in 1951 when its new season began. The Respondent's assertion,
2 Reimbursement for these deductions was recommended by the Trial Examiner in that
part of his Intermediate Report entitled , "The Remedy," which was adopted by the
Board and , therefore , constitutes part of the Board 's Order though not specifically enu-
merated therein , through inadvertence.
SHEDD-BROWN MFG. CO. 907
therefore, that the 14 laid-off employees and the 2 employees dis-
criminatorily discharged in November 1950 had no expectation of
employment beyond the 1950 season is contradicted by the record .s
The Trial Examiner concluded in effect, and we are satisfied that his
conclusion is supported by the record, that all these employees would
have been recalled, along with other laid-off employees who were
recalled, to employment during the 1951 season , absent the Respond-
ent's discriminatory reasons . A remedial requirement that the
Respondent immediately offer suitable employment to these employees,
with the further requirement that they be made whole for losses
incurred because of the Respondent's discrimination against them,
including back pay from such dates when they would have been
employed absent the Respondent's discrimination,4 is clearly consistent
with the nature and scope of the Respondent's unlawful conduct .-5 The
Respondent's objection to these requirements is without merit.
Regarding the objection to the Board's order that it reimburse the
employees for association dues which it deducted from their earnings,
the Respondent contends that it should be relieved of this require-
ment because the dues in question were deducted pursuant to signed
authorizations submitted by the employees to the Respondent without
compulsion. Contrary to this assertion, the record shows that the
authorizations were not voluntarily submitted by the employees, but
were coercively procured by the Respondent. As related by the Trial
Examiner in his Intermediate Report, the Association passed a
resolution on January 3, 1951,
to insert in [its] contract the following rider. "It is agreed by
a majority to make as a condition of employment membership
in the Shedd-Brown Plant Association. All persons affected are
to fill out application blanks and dues deduction blanks within
30 days of January 3, 1951, or 30 days after commencing work."
t When the Respondent laid off its employees in December 1950 it gave each of them
a card signed by 0. Bast, Respondent 's vice president , containing the following :
As you were informed when employed this calendar business is seasonal and we
find it necessary at this time to discontinue with your service. We appreciated your
cooperation.
We hope that when we find we are in need of your service we may have the pleasure
of calling you again. (Emphasis supplied.)
After the Respondent resumed its operations in 1951 , following the December 1950 layoffs,
the laid-off employees were contacted by Bast 's secretary to come back to work.
' As noted by the Trial Examiner in his Intermediate Report , the record does not permit
a determination of the date when the 2 employees discriminatorily discharged in November
1950 would have been laid off at the close of the 1950 season or the dates when they and
each of the 14 laid-off employees would have been recalled in 1951 absent the Respondent's
discrimination against them . Accordingly, in accordance with customary procedure in
such cases , these dates will be ascertained at the compliance stage.
6 Stokely Foods, Inc., 91 NLRB 1267 , enfd . 193 F. 2d 736 ( C. A. 5) ; International Shoe
Co., 87 NLRB 479.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record does not disclose that the Respondent agreed to attach a
"rider" incorporating such a union-security clause into the then
existing contract with the Association. The record, however, does
conclusively show that Foreman Gabriel, found to be a supervisor and
the leader in the formation and administration of the Association, had,
with the permission of Vice-President Bast, posted a notice of the
foregoing association resolution on the bulletin board above the em-
ployees' time clock where it remained continuously from January
1951, except for a brief period, until the hearing.6 Gabriel testified
that at the end of the 30-day period after employees were hired, a
notice was placed on their timecards directing them to see him or
certain other association officials. Gabriel further testified that "they'
all came" to him, and received from him association membership and
dues checkoff cards to sign. He turned over the signed checkoff cards
to the Respondent for deduction of association dues from their
earnings.
Gabriel also testified that he conducted "a pretty serious campaign"
early in January 1951 to get everybody into the Association and con-
tacted most of the employees around the plant. After a campaign
of a month to 2 months "to get them one hundred percent signed up"
he found a few employees "that were lagging back." He thereupon
intensified his solicitation of these employees with arguments contain-
ing the following coercive remarks :
... if I were in your position and another organization was
representing the employees and I refused to join up, well, wouldn't
be long, I just wouldn't be working here, maybe I'd quit, maybe
they would find fault with my work, but I told them I had seen
it happen before, and that I says, you take the chances.
Such incontestable proof of direct wide-scale solicitation of asso-
ciation membership and checkoff authorizations of Respondent's em-
ployees by its supervisor, Gabriel, and the resort by this supervisor
to plainly coercive tactics for the accomplishment of these objects,
negates the Respondent's assertion that it deducted association dues
pursuant to voluntary authorizations from its employees. As the
Respondent is chargeable with its supervisor's coercive conduct, we
find the Respondent's objection to the requirement that it refund
these dues to its employees to be without merit .7
As to the Association's objections to the requirements that the
Respondent cease recognizing the Association as bargaining repre-
sentative of its employees, and that it disestablish the Association as
8 Balow, president of the Association at the time of the hearing , testified that he had
seen the notice on the bulletin board on the Friday preceding the day of his testimony.
I Federal Stores Division of Spiegel, Inc., 91 NLRB 647; Precast Slab and Tile Co., 88
NLRB 1237 , enfd. 190 F. 2d 2.06 ( C. A. 8).
WHITLOCK CORPORATION 909
such representative, these issues were fully considered by the Board
when it issued its Decision and Order herein, and we are satisfied that
the arguments presented now by the Association to support its objec-
tions do not warrant modification or setting aside of the Decision
and Order.
Order
For the reasons stated above, it is ordered that the petitions filed
by the Respondent and by the Association to set aside or modify the
Board's Decision and Order in this proceeding be, and they hereby
are, denied.
IT IS FURTHER ORDERED that the Board 's Decision and Order in this
proceeding be, and it hereby is, clarified as follows :
1. By adding to section 2 of the Order the requirement that the
Respondent take the following affirmative action which the Board
finds will effectuate the policies of the Act :
Reimburse its employees for any association dues deducted from
their earnings and paid to, or being retained for, the Association, by
paying to each of them a sum of money equal to the total of such dues
deducted from his or her earnings.
2. By adding to the notice attached to the Intermediate Report,
marked "Appendix B," and ordered by the Board to be posted, the
following :
WE WILL reimburse our employees for any dues deducted from
their earnings and paid to, or being retained for, the Shedd-Brown
Plant Association, by paying to each of them a sum of money
equal to the total of such dues deducted from his or her earnings.
CHAIRMAN HERZOG AND MEMBER PETERSON took no part in the con-
sideration of the above Supplemental Decision and Order.
WHITLOCK CORPORATION and EDWARD H. BLAKE
DISTRICT 65, DISTRIBUTIVE, PROCESSING AND OFFICE WORKERS OF
AMERICA and EDWARD H. BLAKE . Cases Nos. 2-CA-2264 and
2-CB-700. March 24, 1953
Decision and Order
On January 28, 1953, Trial Examiner A. Bruce Hunt issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in unfair labor
practices in violation of the Act and recommending that they cease
and desist therefrom and take certain affirmative action, as set forth
103 NLRB No. 93.