The Borden Co.

National Labor Relations Board - Board Decisions

Apr 29, 1963

142 N.L.R.B. 364 (N.L.R.B. 1963)

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL bargain collectively, upon request, with the Federation of Union
Representatives, as the exclusive bargaining representative of all our employees
in the appropriate unit described below with respect to rates of pay, wages,
hours of employment, and other terms and conditions, of employment, and,
if an agreement is reached, embody such agreement in a signed contract. The
appropriate unit is:
All individuals on the payroll of International Ladies' Garment Workers'
Union (as distinguished from its locals) who serve as business agents,
organizers, educational directors, and who do union label and political
work, excluding office clericals, supervisors, professionals, watchmen, and
guards as defined in the Act.
WE WILL, upon request, furnish the Federation of Union Representatives, with
data relating to wages, expenses, and fringe benefits schedules of the employees
in the aforesaid appropriate unit for the purpose of negotiating a collective-
bargaining agreement covering such employees.
WE WILL NOT refuse to furnish the bargaining data as aforesaid or otherwise
refuse to bargain collectively with the Federation of Union Representatives,
nor will we in any like or related manner interfere with the efforts of the Fed-
eration of Union Representatives to bargain collectively and to secure the
aforesaid bargaining data.
INTERNATIONAL LADIES' GARMENT WORKERS'
UNION, AFL-CIO,
Employer.
Dated------------------- By-------------------------------------------
(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.
Employees may communicate directly with the Board 's Second Regional Office,
745 Fifth Avenue, New York, New York, 10022, Telephone No. Plaza 1-5500,
if they have any questions concerning this notice or compliance with its provisions.
The Borden Company and Agricultural and Allied Workers
Union No. 300 , Amalgamated Meat Cutters and Butcher Work-
men of North America , AFL-CIO. Case No. 15-CA-92076.
April 29, 1963
DECISION AND ORDER
On December 6, 1962, Trial Examiner George J. Bott issued his
Intermediate Report in the above-entitled proceeding, finding that
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 attached Intermediate Report.
Thereafter, the Respondent, the General Counsel, and the Charging
Party filed exceptions to the Intermediate Report with supporting
briefs.
142 NLRB No. 45.
THE BORDEN COMPANY 365
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 Rodgers, Fanning, and Brown].
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
Intermediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board dismissed the complaint.]
The Charging Party has filed a motion to consolidate the instant case with Case No.
15-RC-2520 (not published in NLRB volumes), a representation proceeding in which the
Charging Party Is the Petitioner. Opposition to the motion has been filed by Respondent.
Because of the different nature of the two proceedings, and because issues in the two cases
are not the same, the motion is denied.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges filed on April 27 and May 4, 21, and 23,
1962, against The Borden Company, herein called Respondent or Company, the
General Counsel of the National Labor Relations Board issued a complaint and
notice of hearing dated July 24, 1962, alleging that Respondent had engaged in
unfair labor practices in violation of Section 8(a) (1) of the National Labor Relations
Act, herein called the Act. Respondent's answer admitted certain allegations of
the complaint but denied the commission of any unfair labor practices. Pursuant
to notice a hearing was held before Trial Examiner George J. Bott at Lake Charles,
Louisiana, on October 16 and 17, 1962. All parties were represented at the hearing.
Subsequent to the hearing, General Counsel and Respondent filed briefs which I
have considered.'
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent, a New Jersey corporation, is engaged in the processing, distribution,
and sale of fluid milk, milk products, and other food products. Respondent's plant
at Lake Charles, Louisiana, is the only plant involved in this proceeding.
During the 12 months prior to the issuance of the complaint, which period is
representative of all times material herein, Respondent, in the course and conduct
of its business operations at its Lake Charles plant, purchased products valued in
excess of $100,000 which were shipped directly to it in the State of Louisiana from
points outside the State of Louisiana.
Respondent concedes and I find, that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Agricultural and Allied Workers Union No. 300, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO, herein called the Union, is
a labor organization within the meaning of Section 2(5) of the Act.
'Respondent 's motion to correct the record is granted with two exceptions . It is my
recollection that Tr. 30, line 1, should have read ". . . did he use the words . . ." rather
than ". . . he used the words . . . ," and the word "lacing" on line 10, Tr. 83, should be
"lurking." Neither of these exceptions, however, change the sense of Respondent's pro-
posed changes.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The setting and issues
During the Union's organizational campaign at Respondent an antiunion
petition was circulated in the plant during working hours. General Counsel con-
tends that although Respondent had a valid rule prohibiting its employees front
soliciting for a union during working hours it discriminatorily enforced the rule.
His complaint, as particularized prior to the hearing, allleged in substance that
Respondent discriminatorily enforced the rule by the conduct of its agent, one
Richard Prather, in circulating the antiunion petition while Respondent was at the
same time threatening employees with discharge if they discussed the Union on the
job. Respondent is also charged with telling an employee that his union activities
would prevent his advancement with the Company and indicating its displeasure with
his action in filing unfair labor practice charges against it. The principal issue, how-
ever, is Respondent's role in the circulation of the petition against the Union in the
light of its alleged interdiction of prounion activity.
B. The no-solicitation rule
Respondent has no written rule regarding solicitation during work hours and,
indeed, has never, formally at least, announced a general rule on the subject. The
promulgation of the rule and its enforcement may be found, according to General
Counsel, in two conversations between employee Ralph Salmons and his foreman,
Whitney Hebert.
Salmons, a shipping clerk, was chairman of the Union's organizing committee.
Apparently some emotional heat was generated during the campaign which is of
no great significance here except to explain how Hebert happened to talk to Salmons
about his union activity. It appears that the wife of one of the employees was
offended by a union letter to all employees and had Salmons called away from his
job at the plant to talk with her. According to Salmons, the lady threatened to
sue him and the encounter embarrassed him. Salmons then saw Hebert and asked
him to keep the wife of the employee away from him. Salmons testified that Hebert
agreed to attend to the matter but in return asked Salmons as union chairman to
talk with some of the employees about talking union on the job which Salmons
promised to do.
The first conversation between Hebert and Salmons took place some time during
the middle of April 1962, according to Salmons, and about a month later Hebert
called the employee into his office and reminded him that they had an understanding
about talking about the Union while at work. Salmons testified that Hebert told
him that he had had complaints about Salmons' activities, that the employee could
be fired for talking about the Union on the job and not to let it happen again.
Whitney Hebert's recall of the conversations differed in some respects from Sal-
mons'. He remembered that Salmons spoke to him about being called away from
work by an employee's wife and that Salmons said that the incident embarrassed him.
According to him he agreed to stop such occurrences and did. He testified, however,
contrary to Salmons, that nothing else was said in that covnersation about the Union
or soliciting on the job. His second conversation with Salmons, so he testified, was
caused by complaints he had received from milk route drivers and Respondent's sales
manager that truck loading was being impeded by Salmons' stopping a conveyor
loader to talk about the Union. He called Salmons to his office, told him about the
complaints and warned him that he would not tolerate Salmons slowing down to talk
union. Hebert denied that he had told anyone not to talk about the Union on the
job but stated that he told employees not to "slow down" to talk for or against the
Union. Herbert also stated that it was his "policy" that employees were not to "slow
down on work" to talk for or against the Union.
Although I am satisfied that both Salmons and Hebert honestly attempted to recall
the substance of their conversations, I am unable to credit either completely in this
instance. Hebert was very uncertain of the time of the first conversation with Salmons
and, moreover, his reconstruction of so much of the conversation as he recalled
portrayed him as more laconic and abrupt in his dealings with employees than I
believe he actually was. I find that there was more to the first conversation with
Salmons and that Hebert did ask the employees not to talk about the Union on
the job and to advise other employees not to do so. On the other hand, I find that
in the second conversation with Salmons, Hebert warned him not to "slow down"
his work to talk about the Union and that this warning was occasioned by complaints
Hebert had received about Salmons' activities.
THE BORDEN COMPANY 367
Since Hebert supervised only about 15 employees out of a claimed bargaining unit
of approximately 50, his discussion with Salmons alone about talking union on the
job is hardly the classic rule against solicitation found in the cases. However, he
asked Salmons to carry his message to other employees and knew that he would
be an effective conduit for he was aware that Salmons was chairman of the Union's
organizing committee. I find that Respondent by Hebert's discussions with Salmons
effectively promulgated a rule against talking about the Union while working which
was tantamount to a valid no-solicitation rule whether it was couched in terms of
"no slow down" or merely "no talking." 2 In any even I will treat Hebert's advice
as such for the purpose of this case.
C. The facts with respect to the alleged discriminatory enforcement of the rule
1. The circulation of the antiunion petition
The rule was announced on or about April 15 and implemented in May by Hebert's
warning to Salmons, at least by implication, that discharge was the penalty for its
violation. On May 8, however, an antiunion petition was circulated in the plant
during working hours and discussed with employees while they were working. The
petition was circulated by employees Richard Prather, William Blanchard, Gene
Guillory, and Walter Collins 3 and the facts about its origin, circulation, and utiliza-
tion are set forth in the testimony of Prather who I credit.
It appears that in May 1962 the Regional Director of the Board had under con-
sideration the Union's petition for certification of representatives.4 Prather thought
that a petition of some sort signed by employees of the Company would cause the
Board to institute an investigation with respect to "the feelings of the employees "
On the morning of May 7, Prather talked with employee Guillory about circulating
a petition and sometime later in the day sought advice from Plant Superintendent
Shelby O'Quinn. Prather asked O'Quinn if there was anything illegal about a peti-
tion and O'Quinn told him he did not know and would not give any advice. Prather
did not tell O'Quinn when and where he intended to circulate the petition.
During the day Prather and Guillory made a pencil draft of a document which
when typed in final form read as follows:
To Whom It May Concern.
MAY 7, 1962.
The undersigned employees of The Borden Co., Lake Charles, Louisiana, not
being against organized labor, however, feel that we do not need representation
by the Amalgamated Meat Cutters Union at this time.
Further, we would like a halt to the disturbance in our work area and of
our selves at home by Union agitation at the earliest possible moment.
Sometime around 5 p.m. on May 7, Prather and Guillory went to George Miner,
Respondent's plant manager and told him that they wanted to pass a petition for
employee signatures and send it to the Board. Miner told the employees that he
could not give them any advice. Miner was not told where or when the petition
would be circulated. Prather and Guillory left Miner's office and sought out Re-
spondent's office manager, Sunnier. Sonnier refused to type the petition or permit
the employees to type it in the office. That evening Prather's wife typed the petition
at home.
Prather brought the petition to work with him on May 8 and discussed it with em-
ployee Blanchard who agreed to work with Prather and employees Collins and
Guillory to obtain signatures. Prather, Guillory, and Blanchard signed the petition
about 11 a.m. and began circulating it in the plant among employees. After a tour
through the plant Prather circulated the petition on the loading dock after first
ascertaining that the foreman was not present. From the dock the petition traveled
7 Whether Hebert told Salmons not to stop work or "slow down" to talk about the Union
or merely not to talk about it while working is a fine distinction which is really not im-
portant in the disposition of this case, for the circulation of the petition, which is the
foundation of the theory of discriminatory application of the rule, required the absence
of its principal circulator from his work for hours and "slowed down" the work of many
other employees.
3 As already indicated, Prather is alleged to be an agent of Respondent and his status
is discussed in section III, C, 2, infra. Blanchard , Guillory, and Collins are concededly
rank-and-file employees and there is no contention that Respondent is chargeable with
their acts because of any position they occupy with Respondent.
Case No 15-RC-2520.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the committee through the milk vault and then to the street in front of the
plant a little after 12 noon . All the circulating prior to noon was in the plant
during working hours.
The committee remained on the street for more than an hour and secured a sub-
stantial number of signatures from employees on their way to lunch. Near 2 p.m.,
while Prather and Guillory were on the street in front of the plant, they were ap-
proached by Superintendent O'Quinn who told them that he understood they were
circulating a petition on company time and to halt it. Guillory, who was not work-
ing that day, asked O'Quinn if he meant on his time and O'Quinn replied that he
meant on anybody's time. Prather returned to work and put the petition away under
lock and key where it remained until about 3:30 p.m. when he took it out and
brought it out on the street again to secure the signatures of employees leaving
work. That night Prather took the signed petition home and nothing was done with
it until the following morning.
On May 9 Prather reported for work an hour early and secured more signatures
outside the plant before 8 a m , his starting time. By that time he had signatures of
about all employees. During Prather's morning rest break he had photostats made
of the petition in a shop close to the plant , and at lunch time he, Guillory , Collins,
and Blanchard took the petition to a lawyer's office where it was notarized and sent
to the Board.
Certain employee witnesses called by General Counsel testified about the circula-
tion of the petition but there is essentially no conflict in their testimony and Prather's.
Nelson Chevis , for example , said he was asked twice by Prather to sign the petition
during working time and that he left his work to sign the document . He added that
Prather told him that the Company did not know about the petition. Employee
Edwards' testimony was substantially in accord with Chevis'. He was contacted by
Prather and three other employees during working hours and refused to sign but
did sign when solicited again . Employees Verrit and Espree were also solicited by
Prather and his committee during working hours. In Verrit's case one of the solici-
tations took place during his coffee break, and Espree contributed the fact that
Prather told him he was speaking for himself and not the Company.
Plant Manager Miner corroborated Prather's account of Prather's and Guillory's
meeting with him. He testified that the employees came into his office about 5 p.m.
with a penciled petition which they let him read. He was asked whether it was
"legal" to utilize the petition and told the employees he did not know and could not
have anything to do with it. The employees left after indicating that they were
going to see the Company's office manager. Miner followed them but when he
overheard the office manager refuse to type the petition he left the room. Miner
testified that the employees did not inform him when or where they were going to
obtain signatures to the petition and that, although he was told that the men were
considering sending the signed document to the Board and to the Union, he offered
them no advice. He stated that he knew nothing more about the petition until the
next day.
On Tuesday, May 8, Miner returned from lunch before 1 p.m. and parked his car
in front of the plant. An employee who worked in the milk vault ran to him and
told him that Prather had stirred up a "fuss" with a petition . Miner asked where
this was going on and was told that it had occurred in the vault on working time.
Miner immediately sought out Superintendent O'Quinn but was unable to find him.
He then tried to find Prather whom he also could not locate and left word with the
telephone operator to have O'Qumn or Prather see him as soon as they came back.
Shortly after 1 p.m. O'Quinn returned and Miner told him to reach Prather and
stop him from circulating the petition on company time. Later O'Quinn reported
that he had stopped the circulation of the petition.
2. Prather's status
The complaint alleged that certain individuals employed by Respondent are super-
visors within the meaning of the Act but Prather is not included. The complaint
does allege , however, that Prather is an agent of Respondent and that ". . . Respond-
ent allowed its agent Prather, and others, to circulate the petition . with knowl-
edge of Plant Manager Miner, Plant Superintendent O'Quinn and shipping depart-
ment supervisor Hebert ." If Prather is a supervisor, Respondent would normally
be accountable for his acts in the labor field but Respondent's responsibility for his
acts as an "agent" requires an application of standards which may be like those used
in determining supervisory status but do not necessarily include or exclude the
criteria set forth in Section 2(11) of the Act.
THE BORDEN COMPANY 369
In all probability General Counsel's selection of the agency theory in this case
was motivated, in some part at least, by the Regional Director's Decision and Direc-
tion of Election in the Union's representation case. There, after testimony taken
about various classifications of employees, including "relief men" of which Prather
is one, the Regional Director found that "relief men" should be included in the
bargaining unit although, as usual, supervisors were excluded.
The record in the representation case which is part of the record in this case
shows the following with respect to Prather, and I find in accord with the testimony
there. Prather is one of five relief men whose principal functions are to relieve the
men they work with for rest periods, coffee breaks, or other reasons. Superintendent
O'Quinn has 28 employees under his supervision including 4 relief men, and Hebert,
supervisor of the dock, has about 14 including I relief man. Prather works for
O'Quinn in the bottling department. Relief men do the same kind of physical labor
as the other employees and spend between 80 to 100 percent of their time at it.
Instructions from O'Quinn to employees are passed through the relief men but
this appears to be a routine function for the processes in the plant are routine con-
sisting in Prather's case of filling milk containers with milk as scheduled and deter-
mined by Prather's superiors.
Relief men are paid on an hourly basis, receive overtime for hours in excess of 40,
and get the same benefits as other employees. They wear a company uniform as do
others and share the same restrooms.
Relief men have no authority to hire or fire, or to transfer, suspend, lay off, or
recall employees, nor are they authorized to promote, assign, reward, or discipline
employees. Although relief men may suggest hiring, discharging, or transferring
employees, O'Quinn makes a final and independent decision based upon his own
investigation.
It would appear from the above findings based on the testimony in the representa-
tion case that Prather and the other relief men not only fail to fit the definition of
supervisor under the Act but do not occupy a position of such importance vis-a-vis
employees that management may be charged with their acts. General Counsel,
however, offered other evidence going to show that regardless of Prather's technical
or literal supervisory status he did in fact have certain supervisory or management
attributes .5
Employee Edwards testified that Prather was his "boss" who gives him time off
when he wants it. Espree said Prather was his foreman and his boss who gives him
directions and has transferred him from job to job. Employee Chevis also described
Prather as a foreman who gives him his orders, tells him what time to come to
work and when to leave. Prather also permits him to take time off he said .6
In addition to the employee testimony about employee direction and control of
worktime there is some evidence that at sometime in the past Prather was instru-
mental in effecting the hire of Edwards, Espree, and Chevis. Espree testified that
5 years ago a friend told him that Prather had asked if the friend knew of a man
who could stack cases in the case room. Espree went to see Wayne Irwin who was
superintendent at the time but who has since been replaced by O'Quinn. Irwin
sent Espree to Prather who showed Espree the operations in the department and then
took him back to Irwin. Irwin took Espree's application and hired him subject to
a physical examination. The record is silent about any conversations between Irwin
and Prather respecting Espree. Employee Edwards testified that 3 years ago he
i Although General Counsel states in his brief that he does not question the Regional
Director's finding that Prather is a relief man, he offered essentially the same kind of
evidence about Prather's duties as is used to establish supervisory status, and this was
done under his theory that the duties and responsibilities of Prather are such that Re-
spondent's employees looked to him as a representative of management and that Prather
was in a strategic position to translate to subordinate employees the policies and desires
of management. International Association of Machinists, etc. (Serrsck Corp ) v. N.L.R B ,
311 U.S. 72. Thus, although apparently there is a concession that Prather is not a super-
visor because the Director included him in the unit, in actuality there is not, and this
explains my extensive treatment of Prather qua supervisor for if he has none of the
attributes in the detailed definition of supervisor in Section 2(11) of the Act the weakness
in the "representative of management" theory based on employee opinion is exposed
Whether he is still an "agent" regardless of his normal plant functions will be governed
by common-law rules of agency.
9 The employee subjective evaluation of status, such as "foreman" or "boss" is of little
value without facts. Chevis, for example, said he also works under Cronin in the vault
But Cronin is a relief man too.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
heard that the Company needed help and he went to see Prather. After a discussion
with Edwards, Prather took him to Irwin's office where there was a discussion between
Prather and Irwin. According to Edwards, Irwin told Prather that Edwards' hiring
was up to him. Edwards was hired by Irwin. Employee Chevis related a similar
story about his employment with Respondent 4 years ago. He first saw Prather who
took him to Irwin. After a conversation between Prather and Irwin in which Irwin
said Edwards' employment was up to Prather, Edwards was hired by Irwin.
Prather did not deny the substance of the testimony of employees Edwards, Espree,
and Chevis about their hirings, and although the events described took place 3 or
4 years prior to the hearing and the witnesses were somewhat shaky about detail,
I see no reason to reject the essence of their testimony which is that Prather made an
effective recommendation to hire them I so find.
I also find that Prather directs the employees and lets them leave early as testified.
I also find, however, on the basis of Prather's testimony and the testimony in the
representation case that Prather's activities are routine because of the nature of the
work in the department and do not include the exercise of independent judgment.
I find that although Prather is not a supervisor under the Act he does occupy a posi-
tion somewhat the rank-and-file employees. Whether this makes management
responsible for his actions, in the circumstances of this case, in circulating the petition
during working time will be discussed below.
3. Supervisor Hebert's comments about an antiunion letter
The complaint as particularized alleged that Respondent discriminatorily enforced
its no-solicitation rule not only in the circulation of the antiunion petition but also in
that ". . . Respondent's supervisor and agent, Hebert, advised an employee that the
sentiments expressed in an antiunion letter represented a good point of view." It
appears that Hebert did express a view about a letter and these are the facts.
On May 17, 1962, an employee's wife wrote an uncomplimentary letter to the
Union's international representative and sent copies to Respondent's Plant Manager
Miner; Supervisor Hebert, and employee Salmons, the chairman of the organizing
committee. Salmons' letter was addressed to him at the plant and he was handed it
by Hebert. According to Salmons, when he had opened and read the letter Hebert
asked him for his opinion of the contents and Salmons said he thought the writer
was a fanatic. Hebert commented that he thought the letter expressed ". . . a very
good point of view." It was developed in cross-examination, however, that at least
one other employee, and possibly more, were present when the letter was discussed
and that Hebert may have only agreed with an employee's expression of opinion
that the letter expressed a good point of view. I find that there was an open discus-
sion of the letter and that Hebert expressed a personal opinion about the letter.
D. Analysis and conclusions regarding the rule and its enforcement
Even if Prather were an agent of Respondent in circulating the petition as
General Counsel contends his actions would not appear to require a finding that the
rule was unfairly applied especially in the absence of evidence that the employees
requested the employer to make an exception to the rule for prounion solicitation
and a showing that the rule is an "unreasonable impediment" to organization .7 In
7 N L.R B v. United Steelworkers of America (Nutone, Inc.), 357 U S. 357; Walton
Manufacturing Company, 126 NLRB 697. General Counsel offered in evidence three letters
to Respondent written by Harry Mitchell, the Union's international representative, in
which he requested that Respondent grant the Union "equal time" to reply to speeches
apparently made by company officials to meetings of plant employees. On objection I re-
jected the exhibits principally on the ground that the letters were not on their face re-
ferring or related to the Company's no-solicitation rule which was being litigated in this
case but related to a theory of discrimination in denying "equal time" to a union to
address assemblies of employees in the plant and answer propaganda or appeals against
the Union delivered by the Company to similar assemblies . My ruling was without preju-
dice to General Counsel showing through Mitchell that he at any time made a request for
an exception to the no-solicitation rule based on the acts alleged in General Counsel's
complaint as discriminatory applications of the rule. No such testimony was offered. The
"equal time" theory was, in my view, not encompassed in General Counsel's complaint or
theory of the case but would involve a different lawsuit. For some illustrations and dis-
cussion of the complexities of the problem of "equal time," see Bonwit Teller, Inc. v.
THE BORDEN COMPANY 371
any event I find that Respondent is not responsible for Prather's actions based on
his position as such with Respondent and that Respondent did not authorize, ratify,
and/or condone his conduct as alleged in the complaint.
I have found earlier that although Prather is not a supervisor within the meaning
of the Act he does occupy a position somewhat above the rank-and-file employees.
Despite these relatively minor attributes of management, however, I do not think
that in the circumstances of this case his conduct is to be imputed to Respondent as
were the actions of the individuals in International Association of Machinists, etc.
(Serrick Corp.) v. N.L.R.B., 311 U.S. 72. There the men involved had all been
active in the Company Union and were emulating the example of management of
opposition to the Charging Union. In that case, not only were there four men of
higher rank than ordinary employees involved in the solicitation as compared to one
here, but one of the four was in charge in the absence of the foreman and two were
in charge of the second and third shifts, respectively. In addition, the conduct
of the individuals involved in International Association of Machinists was only one
factor considered by the Court in reaching its ultimate conclusion that the incum-
bent union had been illegally assisted by the Company. Here the issue is whether
Prather's status and conduct was such that considered alone employees would have
just cause to believe that he was acting for Respondent. I do not think they
could. Prather is at most a strawboss who voted in the election. He is one of
five relief men and it is of some significance that other relief men signed the petition
and Respondent is not charged with responsibility for their conduct .8 Finally, I
do not think that Prather's role 3 or 4 years ago in the hiring of employees changes
this view because of the remoteness of the incidents and the absence of any evidence
that since the appointment of O'Quinn, Prather has made any effective recommenda-
tions in hiring and firing.
Concerning authorization, sponsorship, condonation, and ratification of Prather's
action the record shows no evidence of any kind of authorization. Although Prather
told Miner and O'Quinn that he was going to circulate a petition, he did not tell them
where or when, and although one may suspect that Miner or O'Quinn may have
surmised that company time would be used for antiunion activity, there is no evi-
dence that any supervisor actually saw the activity and the only positive testimony
is that Miner stopped the activity on company time when he discovered it. I con-
clude that the evidence does not establish by a fair preponderance that Respondent
authorized, sponsored, ratified or condoned the circulation of the petition.
Hebert's remark about the antiunion letter as an indication of a discriminatory
enforcement of the rule, may be quickly dismissed as a casual expression of opinion;
inconsequential, innocuous , and insignificant.
I find and conclude, therefore, that Respondent did not discriminatorily enforce
the no-solicitation rule in violation of Section 8(a)(1) of the Act as alleged.
E. Other alleged acts of interference, restraint, and coercion
The complaint alleged that Fred Stewart, Respondent' s sales manager, told
an employee that advancement would be withheld because of his union activities.
An amendment at the hearing added the allegation that Supervisor Hebert told an
employee that Hebert had moved other employees ahead of the employee because
the employee had embarrassed Hebert by filing charges against him. Ralph Salmons
is the employee involved in both incidents.
Salmons testified that sometime around the beginning of May he went to Stewart's
office and asked Stewart to assign him to a sales route. Stewart, according to Sal-
mons, said that he could not discuss the matter "at this time." When Salmons asked
Stewart what he meant, Stewart replied that Salmons had been considered the top
"prospect for a wholesale route up to the time [he] got mixed up in this mess."
The conversation lasted for about 2 hours and "different aspects of the union and
strategy that had been used" by the Union were discussed. Salmons also said
Stewart told him that other employees were eligible for promotion to the route
and that he could not promise Salmons anything until Salmons had talked with
Plant Manager Miner. Many other things were discussed in the 2-hour meeting,
said Salmons, most of which he said he could not recall.
N.L.R.B., 197 F. 2d 640 (C.A. 2) ; N.L R.B. V. American Tube Bending Co., 205 F. 2d 45
(CA. 2) ; Metropolitan Auto Parts, Incorporated, 102 NLRB 1634; Livingston Shirt Cor-
poration, et at, 107 NLRB 400; The May Department Stores Company, 136 NLRB 797.
8 DeRouen, Lawrence, Corbello, and Cronin, all named as relief men in the R case.
712-548-64-vol. 142-25
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Salmons immediately saw Miner and told him that he had decided that "most
of the employees ... in the bargaining unit ... didn't have guts enough to stand up
for their rights and [Salmons] had stuck his neck out about as far as [he] wanted
to .. ." and therefore Salmons wanted to get into another department where he
could make more money. He added that Miner told him that he would be con-
sidered on the same basis as all other employees.
The above is the substance of the conversations with Stewart and Miner, according
to Salmons' testimony on direct examination. Under cross-examination certain de-
tails were added and other areas of conversation opened up as distinct possibilities.
Salmons, for example, admitted that he told Stewart that he realized that certain
route men would be given first consideration by the Company and that there was
some discussion of the line of progression to route jobs. He admitted discussing a
representative of another union and the role he might play in Respondent's labor
relations but did not recall asking if he could get a route "if the Union pulled out"
or saying that he did not start the Union. He agreed that it was possible that he
might have discussed the pending unfair labor practice charges but did not remember
saying he "could break up this union thing." Salmons also revealed that he had
been studying labor relations problems but that he got the impression in his meeting
with Stewart that Stewart did not understand what Salmons was telling him.
Stewart's account of his talk with Salmons was more detailed. He testified that
Salmons asked to see him and he was "curious" about the request since he worked
for someone else and that he told Salmons so. Salmons replied that he wanted to
talk to someone who would not preach to him because he had been getting plenty
of that at home. He added that he had been unable to sleep because of concern
about his union activities and that he was now convinced that his "primary concern
should be his family instead of the employees." He told Stewart that he did not
start the Union but was helping employees who were less informed in these matters
than he, and that he was going to tell the Union's representative that he was now
on the other side of the fence. Salmons then asked Stewart if the Company held
his past activity against him and was told that it did not.
The conversation turned to other jobs with the Company, according to Stewart,
after Salmons asked him what he thought about Salmons' chances for advancement.
A long and detailed discussion then occurred about how one progressed to a route
salesman's job and about Salmons' potential to which Salmons responded by asking
Stewart whether Salmons would get a route if the Union pulled out of Respondent.
Stewart's reply was, "What kind of a damn fool do you think I am that I would
agree to a deal like that."
Again the procedure for promotion was discussed at length with Stewart indicating
that an employee must progress gradually and that Salmons was not ready. At or
about this time Salmons made a remark about being able to play some part in
impeding "this union thing" and recounted some tale about union dissension. Stewart
appeared incredulous and told Salmons that he did not know what he was talking
about. More conversation about promotion procedure, union strategy, and union
tactics ensued during which Salmons volunteered that he had been studying "union
law" and was well informed. Stewart suggested that the employee knew more about
the subject than he did.
Stewart denied that he told Salmons that they could not discuss Salmons' request
for a route "at this time" or that he said Salmons was considered a prime candidate
for the wholesale route until the union situation came up. He denied that he used
the phrase "union mess" in the conversation or the word "mess" in referring to a
situation.
George Miner, the general manager, testified that he had a "fairly lengthy" con-
versation with Salmons after Salmons had talked with Stewart . In substance, he
stated that the employee told him he was concerned about his future with the
Company and discussed union strategy and tactics , especially a possible boycott.
The employee also mentioned the Union 's petition for an election and unfair labor
practice charges. He said that he could get the charges dismissed and that the charge
involving Supervisor Hebert would not "stand up." Finally Salmons told Miner that
he had asked Stewart for a route and that he was aware that Miner could not
promise the employee a route or tell him he could not have it since he had read the
National Labor Relations Act and was aware of Respondent's rights as well as his
own. When Salmons asked Miner if his union activities would have a bearing on
his chances for promotion, Miner told him he would be considered like any other
employee. Other remarks similar to those recounted by Stewart were made by the
employee in his meeting with Miner , so Miner testified.
THE BORDEN COMPANY 373
I credit the testimony of Respondent's witnesses Stewart and Miner. Their accounts
of Salmons' statements corroborate one another and are plausible separately, particu-
larly in view of Salmons' admissions that certain topics might have been discussed
and his poor memory about others. In addition, Salmons, chairman of the Union's
organizing committee, asked for the meetings and volunteered the information about
his personal problems, the Union's plans and the employee's key place in the picture.
Stewart was understandably incredulous, even as Salmons implied in his testimony,
and, I believe, too wary in the circumstances, even assuming that such was his view,
to tell Salmons that he was the Company's top candidate for a lucrative sales route
until he involved himself with the Union. It is also significant that although Salmons
said Stewart said he could not discuss Salmons' request "at this time" it is clear that
they discussed it at length. I find that Stewart did not tell Salmons that his union
activity had affected his opportunity for advancement and that, therefore, Respondent
did not violate the Act as alleged.
With respect to the implied admission of a reprisal by Hebert because of Salmons'
union activity, the evidence is as follows: Salmons was working on Respondent's
dock as a shipping clerk on August 3, 1962, and because of the absence of a route
man, Supervisor Hebert relieved Salmons as checker and Salmons loaded the route
man's truck. When the truck was loaded Salmons got in and prepared to move the
vehicle but Hebert told him to get out. Salmons testified that he told Hebert that
Hebert embarrassed him by "moving people ahead of him" and that Hebert stated
that Salmons embarrassed him too by filing charges against him. Salmons admitted
that Hebert did not specifically state that he "moved people ahead" of Salmons
because Salmons filed charges or in fact admit that he actually moved people ahead
of Salmons. The essence of Salmons' testimony is that he told Hebert he em-
barrassed him by "moving people ahead" of him and that Hebert replied that
Salmons embarrassed him also by filing charges. Whether this bare statement by
one supervisor in such a context is a violation of the Act is certainly debatable, but
in any event Salmons' more detailed account under cross-examination and Hebert's
more logical explanation of his action washes the incident out as a possible viola-
tion. Salmons admitted that the truck incident was insignificant and unimportant
but implied that Hebert did it only to embarrass him. It also appears, however,
that the man used to move the truck involved in the incident was a route man and
that Salmons was irritated that this individual, who he ". . . taught everything there
was to know about his job . ," in Salmons' words, got more overtime than he.
He also commented about this to Hebert and Hebert told him about certain mistakes
he had been making. In addition, there was no promotion, additional monetary com-
pensation, or employee advantage of any kind involved in the moving of a truck in
the circumstances. It seems to me that even if Hebert used the words "embarrass"
and "charge" Salmons read into his remarks an implication which was not there.
Moreover Hebert's explanation was plausible and I credit it as well as his denial
that he mentioned unfair labor practice charges. Hebert's story was that Salmons
is not qualified to drive a company truck and would not be until the Company's
driver-trainer said so, but that the other employee was qualified. In addition, loaded
trucks are refrigerated by attachment to an electrical device, an operation with which
Salmons has no familiarity. Hebert admitted that Salmons said Hebert's action
embarrassed him but said he replied that he was sorry but it was a company rule.
As indicated, I credit his testimony and find no violation of the Act in his remarks.
CONCLUSIONS OF LAW
1. The Borden Company, Lake Charles, Louisiana, is engaged in and during all
times material herein was engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent did not violate the Act as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I recommend that the complaint be dismissed in its entirety.