United Biscuit Co. of America

National Labor Relations Board - Board Decisions

Dec 30, 1952

101 N.L.R.B. 1552 (N.L.R.B. 1952)

1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain , or to refrain from becoming
or remaining , members in good standing of the above-named union or any other
labor organization except to the extent that this right may be affected by an
agreement in conformity with Section 8 (a) (3) of the National Labor Relations
Act.
PRECISION FABRICATORS, 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.
UNITED BISCUIT COMPANY OF AMERICA, UNION BISCUIT DIVISION and
LOCAL UNION No . 611, AFFILIATED WITH INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, A. F. L. Case No. 14-CA-668. December 30, 1952
Decision and Order
On July 8, 1952, Trial Examiner Herman Marx issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 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 In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.2
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, United Biscuit
Company of America, Union Biscuit Division, St. Louis, Missouri, its
officers, agents, successors, and assigns, shall :
3 Pursuant to the provisions of Secti-n 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Chairman Herzog and
Members Murdock and Peterson].
' As no exception has been filed to the Trial Examiner ' s finding that the Respondent did
not threaten employees to close its plant in reprisal for union activity, we shall adopt
this finding.
101 NLRB No. 239.
UNITED BISCUIT COMPANY OF AMERICA 1553
1. Cease and desist from :
(a) Interrogating its employees concerning their membership or ac-
tivities in any labor organization, or whether they have been asked
to join, assist, or participate in any labor organization, or concerning
their attitude toward authorization of a labor organization to repre-
sent them or toward organization of employees for the purposes of
collective bargaining or mutual aid or protection.
(b) Soliciting, requesting, or assisting any of their employees to
abandon or withdraw any authorization given to a labor organization
to represent them, or to abandon or withdraw from any membership in
or activities in or on behalf of any labor organization, or to state their
attitude toward representation by, or membership or activities in,
any labor organization.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist Local Union No. 611, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, A. F. L., or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in St. Louis, Missouri, copies of the notice
attached to the Intermediate Report marked "Appendix A." a Copies
of such notice, to be furnished by the Regional Director for the Four-
teenth Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt
thereof and be maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees 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.
(b) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, as to what
steps the Respondent has taken to comply herewith.
' This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" in the caption thereof the words "A Decision and Order ." In the event
this Order is enforced by a 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."
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
On August 9, 1951, Local Union No. 611, affiliated with International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , A. F. L.
(also referred to herein as the Union ), filed a charge with the National Labor
Relations Board against the Respondent, United Biscuit Company of America,
Union Biscuit Division. Based upon the charge, the General Counsel of the
National Labor Relations Board (also designated below as the Board ), on April
8, 1952, issued a complaint alleging that the Respondent had engaged , and was
engaging in unfair labor practices within the meaning of the National Labor
Relations Act, as amended (61 Stat. 136-163), referred to herein as the Act.
Copies of the complaint and the charge have been duly served upon the
Respondent.
In material substance , the complaint alleges that the Respondent , in violation
of section 8 (a) (1) of the Act, in July 1951, interrogated its employees con-
cerning their membership in, and activities on behalf of, the Union and "made
intimidatory and coercive statements in order to discourage union membership
and activity and in order to discourage on the part of its employees activities
for the purpose of collective bargaining and other mutual aid and protection."
The Respondent filed an answer which , in essence, denies the commission of any
unfair labor practices and states that whatever statements were made to em-
ployees were made without threat of reprisal or force or promise of benefit,
and therefore "amounted to . . . the exercise of free speech . . . guaranteed
by the Constitution of the United States and by section 8 (c) of the National
Labor Relations Act."
Pursuant to notice duly served upon all parties, a hearing was held on April
21 and 22, 1952, at St. Louis, Missouri, before me as duly designated Trial Ex-
aminer. The General Counsel and the Respondent were represented by counsel,
participated in the hearing, and were offered a full opportunity to be heard,
adduce evidence, examine and cross-examine witnesses, submit oral argument,
and file briefs. The Union moved to withdraw the charge. The motion was
denied.' At the inception of the hearing, the Respondent moved for a continuance
of a week or 10 days. The application was denied. Upon the Respondent's
motion, the General Counsel was directed to furnish the Respondent with a bill
of particulars, with respect to section IV of the complaint, setting forth the
identity of the Respondent's representatives who allegedly made the statements
and engaged in the acts of interrogation described in the complaint, and the
approximate dates and substance of the intimidatory and coercive statements
attributed to the Respondent' Thereupon, the General Counsel furnished an oral
bill of particulars on the record to the effect that the claimed unfair labor prac-
tices were committed by one Charles E. Kennedy and that the alleged intimidatory
remarks consisted of statements that the Respondent's plant would be closed
and that employees joining the Union would not be promoted to supervisory posi-
tions, and of solicitation of employees to withdraw their applications for
membership in the Union. At the close of the General Counsel's case-in-chief,
the Respondent moved to dismiss the complaint. The motion was denied. The
1 After disposition of the motion, the Union's representative, who is not an attorney,
stated that he did not wish to participate in the hearing further. He was informed that
he had a right to participate or to secure counsel for that purpose if he wished to do so.
2 The Respondent' s motion sought more information than the General Counsel was
directed to furnish . The motion was granted to the extent indicated above and denied
in all other respects.
UNITED BISCUIT COMPANY OF AMERICA 1555
Respondent also moved to dismiss the complaint at the close of all the evidence.
Decision on that motion was reserved for disposition in the Intermediate Report.
The findings and conclusions set forth below dispose of the motion . The General
Counsel and the Respondent waived oral argument on the evidence. The Re-
spondent filed a brief which has been read and considered . No brief has been
filed by the General Counsel.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is engaged in the manufacture , sale , and distribution of
bakery products . It is a Delaware corporation , is authorized to transact business
in the State of Missouri, and maintains an office, plant, and distribution facilities
in the City of St. Louis. During the year preceding the hearing, the Respondent
made purchases of raw materials , supplies , or other commodities at a value in
excess of $500 ,000. More than 40 percent of the goods so purchased was shipped
in interstate commerce to the Respondent's St. Louis plant from places outside
the State of Missouri. During the same period, the Respondent produced bakery
products at a total value in excess of $500,000. The goods so produced were sold
and distributed by the Respondent in Missouri and adjacent and neighboring
States. Approximately 40 percent of such bakery products was shipped by the
Respondent in interstate commerce from its said plant to points in other States.
I find that at all times material to this proceeding, the Respondent was engaged
in interstate commerce within the meaning of the Act.
U. THE LABOR ORGANIZATION INVOLVED
Local Union No. 611, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. L., admits persons
employed by the Respondent to membership and is a labor organization within
the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The Respondent's facilities in St. Louis are conducted under the name of Union
Biscuit Division (referred to below as the Division). The Division also operates
some branch establishments of unspecified size and functions outside the St. Louis
area. An official bearing the title of president manages and directs the affairs
of the Division from the St. Louis office. The president's name is Charles E.
Kennedy. Of its total employment roster of approximately 500 persons, the
Division normally employs about 355 production and shipping employees, 12
drivers, and 20 route salesmen in its St. Louis facilities. During the period of
the alleged unfair labor practices, because of a vacancy, there were 19 salesmen
in the Division's employ in St. Louis.'
As Kennedy put it, there are two unions "in the St. Louis operation." He did
not specifically state that the Division has collective bargaining agreements
with these organizations, but the sense of his undisputed testimony is that it
All references to salesmen herein involve the route salesmen employed at the Division's
St. Louis establishment.
242305-53-99
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has collective bargaining relations affecting the production and shipping employees
with a local affiliated with the same International as the Union, and that with
respect to the drivers, the Division has had collective bargaining relations with
the Union for over 20 years. Kennedy also asserted that the Division has col-
lective bargaining agreements with eight other unions affecting various groups
of employees in the branch establishment. With respect to the drivers, Kennedy
stated, "We have never had one grievance that has been filed," and he described
the relationship with the Union as "fine." He also testified that there have
been "no filed grievances" at the branch establishments. He did not state
whether there have been any grievances from the production and shipping employ-
ees at the St. Louis plant.
The salesmen are not represented as a unit by a collective bargaining repre-
sentative, and there is no history of collective bargaining among them. On July
20, 1951, the Union filed a representation petition with the National Labor Rela-
tions Board, seeking certification as the salesmen's collective bargaining repre-
sentative. Prior to the filing of the petition the Union had conducted organiza-
tional activity among the group. The Board, in a Decision and Direction of
Election dated January 10, 1952, directed an election to determine the question
of representation. An election was held on March 10, 1952. A majority of those
voting voted against the designation of the Union as bargaining representative
of the salesmen.'
B. The alleged acts of interference, restraint, and coercion
In or about the middle of July 1951, according to Kennedy, he learned that
the Union was endeavoring to organize the salesmen. These employees cus-
tomarily meet as a group with Kennedy each week for the purpose of discussing
sales problems and related matters. At such a meeting held in the third or
fourth week of July, shortly after the representation petition was filed, Kennedy
delivered a talk to the salesmen, expressing certain views, to be described below,
on the question of the Union's efforts to organize the salesmen.
The principal description of the meeting was given by Kennedy who was
(ailed by the General Counsel as a witness under rule 43 (b) of the Federal
Rules of Civil Procedure. In sum, according to Kennedy's account, he told the
salesmen that he had heard of the Union's organizational efforts from several
of the men who had come to him for guidance; that he was placing the matter
"on the table for a straightforward discussion" ; that he wanted it "clearly
understood" that the men had a right to join or refrain from joining the Union;
that he was aware of the Act's prohibitions against coercion, intimidation,
threats, and promises of benefit, but that he had a right to describe the benefits
the Respondent extended to its employees and to question promises made by-
the Union; that he had heard that the Union had promised to secure for the
salesmen increased wages and allowances if they would organize ; that a com-
parison of the Respondent's wages with those of two major competitors es-
tablishes that in some respects the Respondent pays better wages ; s that the
Respondent provides medical facilities and a cafeteria for its employees ; that
4 The statement that there is no history of collective bargaining among the salesmen is
based upon the Board's relevant finding in its Decision and Direction of Election. Findings
relating to the representation proceeding and the election are based upon the Board's
official records. For the purpose of making the indicated findings, judicial notice has been
taken of such records. See United Biscuit Company of America, Union Biscuit Division,
Case No. 14-RC-1502, for the relevant data pertaining to the representation proceeding.
B According to Kennedy, he had available a table of wage rates paid by the competitors-
and he read the rates to the salesmen.
UNITED BISCUIT COMPANY OF AMERICA 1557
the company maintains, and pays all the premiums for, a life and health and
accident insurance program covering the salesmen , whereas one competitor had
no such program and the other did not provide any at its St. Louis branch;
that the salesmen "needed no organization to get better treatment and working
conditions" ; that the "Union may promise certain things, but ... it says Union
Biscuit on the front door and . . . we are going to have a voice in this thing,
we are not just going to turn it over to 611 or any other union . . . the com-
pany still reserves the right to manage the business" ; that he was "not threat-
ening," but there "might be some shut-downs . . . because we couldn't get to-
gether with the union on some understanding"; that a competitor (whom we
named ) "sometimes has strikes , they have closed plants" ;' that a year earlier
the Respondent's Toledo plant went "out of business just because it turned out
unprofitable"; and that the assembled employees should "be sure (to) .. .
weigh those things very carefully."
The only other testimony purporting to quote Kennedy's remarks at the meet-
ing was given by two of the salesmen , Dominic Kusanelli and Otis M. Berry,
both called by the General Counsel! Both witnesses were asked what Kennedy
had said with respect to "closing the St. Louis plant." According to Kusanelli,
Kennedy said that he "was authorized to close the plant if he saw fit" and that
"he was big enough to do it in case he had to." Kusanelli denied that the,
reference to "closing the plant" had any "connection with the labor discussion,"
and at another point in his testimony, he expressed the thought that Kennedy
made his remarks concerning the St Louis plant when he referred to the closing
of the one in Toledo. Kusanelli also stated that Kennedy gave no reason "why
he would close" the St. Louis establishment. Like Kusanelli, Berry quoted
Kennedy as saying that he "had the authority to close the plant if he saw fit."
Berry also asserted that Kennedy made the statement in connection with a
reference "to another place that was losing money," although he could not recall
the location of the establishment.
While the meeting was in progress , according to Kennedy , four of the employees
voiced opposition to organization of the salesmen. So far as the evidence
indicates , the rest remained silent on the subject during the meeting.
In the course of the following week, Kennedy separately interviewed between
12 and 15 of the salesmen in his office concerning their respective attitudes toward
unionization of the group. With the possible exception of Russel Ferguson and
Dominic Kusanelli, all of those interviewed were called to the office from their
respective sales routes at Kennedy's direction.' Kennedy made substantially
' At a later point, Kennedy denied that he had previously "referred to strikes having
closed plants." His denial is inaccurate, since the sense of his reference to the com-
petitor is that it had closed plants because of strikes.
'Anther salesman , Russel Ferguson , referred to the meeting in his testimony, but he
was not interrogated with respect to details of Kennedy's remarks.
$ According to Kennedy, Ferguson and Kusanelli took the initiative In coming to his
office. After the close of the sales meeting, Ferguson had requested an opportunity to
talk to Kennedy and the latter had trld him to defer the conversation until the following
week. Thus, in effect Ferguson's interview was arranged at his own request, although,
like the others , according to his testimony , he was actually called to the office at Ken-
nedy's direction. Contrary to Kennedy's claim that Kusanelli took the initiative in
coming to the office, the latter testified that Kennedy's secretary requested him to come
there. Kennedy estimated that he summoned "about nine, ten, up to eleven," for inter-
views, but he could identify only Ferguson and Kusanelii as employees who came to the
office upon their own initiative. As it is the sense of Kennedy's testimony that a sub-
stantial number cf the salesmen came to the office at his direction and upon his initiative,
it is unnecessary to determine the precise number who did so, and in the final result, if
Kennedy unlawfully interrogated Ferguson and Kusanelli concerning their attitudes
toward unionization, it is immaterial whether they came to the office of their own volition.
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
similar statements to each of the men. He described what he said to the men
at several places in his testimony. His descriptions do not vary materially,
but as it is contended in the Respondent's brief "that the evidence does not
substantiate" that Kennedy "interrogated the employees on union activity,"
and as his phrasing of what he said may seem obscure at a number of places,
it will aid a resolution of the issues to note several of his versions and some
other testimony related thereto.
Initially, Kennedy described what he said to each employee in the following
terms : "I said that they were at the meeting last week and that you heard the
discussion, heard what I said, and the general discussion and I said, `You have
probably talked this over and you have talked to the other men.' I said, `How
do you feel about it?' " (Emphasis supplied.) As Kennedy had touched on a
number of matters at the sales meeting, the meaning of the word "it" was not
wholly clear at that stage of his evidence, and he was therefore asked at a sub-
sequent point whether he had used other terms during the conversations to express
its meaning. He replied, "Only in this way. I said that each one of them, that
you were at the meeting last week, that you heard the discussion, if you want
to be organized or not, in the sales force, and I simply said, `What do you think
about it?"' (Emphasis supplied.) Replying to a question at that point whether
the term "it" referred to the sales meeting, he stated, "No. I implied what is
your position or your attitude, but I did not ask them right out. I said, `What do
you think about it?"' At another point, the witness was asked to what he referred
in using the word "it." He responded, "I can tell you, Mr. Trial Examiner, but
if I explain myself, but I did not explain to the salesmen when I interviewed
them, then I commit myself on the record. I didn't explain it to them. If I
explained it now, I commit myself on the record as to what I was thinking,
but I didn't explain it to them. I said, `What do you think about it?"'
Kusanelli and Berry also testified to Kennedy's interrogation. As Kusanelli
put it, Kennedy said, "... the reason I am calling you in here is to ask you
bow you feel about the meeting we had, general sales meeting and of the things
we discussed, and about the union and so forth and everything that was discussed
in general." Berry testified: "I presume like Mr. Kennedy said this morning,
that be asked what we thought about the meeting, and what I thought about
the union coming in, if I had talked to any of the organizers or anything like
that, and I told him I had." According to Berry, he also told Kennedy that
he had signed an application for union membership, and Kennedy "wanted to
know how I felt about the application at the time."
Summarizing the responses of the employees to his interrogation, Kennedy
testified: "They felt it (unionization) wasn't needed, they didn't believe in it
and they all assured me that I had nothing to worry about if I was worried,
that they didn't want it and when it came up to a vote and so forth they would
show us."' At another point, Kennedy stated that almost all of those inter-
viewed "told me right out and looked me in the eye and said how they would
vote." According to Kennedy, after the employees had expressed their views, he
"asked them if they would care to put that in writing on their own free will
without any promises, or urging them or anything," and he showed an unspecified
number of the employees a draft form of statement (also referred to as a letter
9 Kennedy described his conversation with Kusanelli in somewhat greater detail than
his general description of his talks with the others. Kusanelli's version of what he told
Kennedy concerning his attitude toward unionization is substantially similar to Kennedy's
account. It is unnecessary to set out the version of either witness because it is not sig-
nificantly different from Kennedy's account of hat the other employees told him concern-
ing their attitude toward organization of the salesmen.
UNITED BISCUIT COMPANY OF AMERICA 1559
in the testimony ) which he had prepared prior to the interviews?0 The reason
why he exhibited the draft , Kennedy asserted , was "because I thought that some
of them would not know what to write or couldn 't express themselves as they
would want to." The witness stated that before he exhibited the draft, "they
asked me what to say," that he replied, "You write what you want to and (use)
your own phraseology ," that the employees offered to sign what he would write
for them, that he refused to follow such a course, and that he produced the sample
after "they still said , `Suppose you give me a lead."' When asked at the hearing
to name the employees who asked Kennedy to write their statements , he replied,
"I forget, I don't remember ." Terming himself "reluctant" to produce the sample,
he stated that he wanted the employees to "express themselves ( of) their own
free will ." According to Kennedy , when he produced the sample, he told the
employees , "That is something I prepared , I don't know if you like it or not,"
and he testified that "before they could study it too long I took it back and in no
instance did they have it in front of them when they wrote their letter." The
reason he withdrew the draft, Kennedy stated, was because "I felt I was within
my rights in showing it to them and I didn't want to be incriminated by letting
them have it to digest and so forth."
Kennedy asserted that of the 12 to 15 salesmen he interviewed , "nine to ten,
at least," gave him written statements or letters. For reasons which will appear,
those furnished by Berry and Ferguson fall in a different category . They are
in evidence and will be discussed separately below. With respect to the others,
according to Kennedy's testimony, they substantially embodied the sentiments
concerning unionization and the voting intentions of the signatories which the
employees expressed to Kennedy in response to his interrogation. At another
point, describing the statements, Kennedy testified : "The letters would read
something like this, that they had not been approached, some of them said they
had not been approached, by the union; others said they had been approached
by the union ; and that they did not want Local 611 , might not have named the
local, to represent them . Some of them said that they were satisfied with work-
ing conditions and others didn't state." Although, as noted above, Kennedy
testified that employees "looked me in the eye and said how they would vote,"
and the sense of his testimony at another point is that they embodied their voting
intentions in their statements, he later denied that either the discussions or the
documents contained statements that the employees "would vote against the
union if the election was held."
Kennedy was asked at the hearing to explain his purpose in requesting
employees to sign the statements. Stating that he did so for "self-protection,"
he asserted that he asked for them "because I thought I might be called down
here and I wanted something on my side," and he explained that what he meant
was that he wanted "something in my defense if you should call me down here."
According to Kennedy, he placed the draft and the statements, except those
furnished by Berry and Ferguson , in his desk where he retained them for a week
or two and then destroyed them. His reason for destroying them, he stated,
was that he reached the conclusion , after some reflection , "that maybe ... I
shouldn 't even have them."
Prior to the interviews, Ferguson and Berry had authorized the Union in
writing to represent them . The statement each prepared in Kennedy's office
was in the form of a letter addressed to the Union and purported to withdraw
the authorization previously given to the organization . As the letters are in a
10 Kennedy stated that he did not exhibit the draft "in all cases " and that he was unable
to remember to how many of the employees he had shown it.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
somewhat different category from the other statements , they may appropriately
be given separate consideration.
At the conclusion of the sales meeting, Ferguson had told Kennedy that he
did not favor unionization and requested an opportunity to talk to the Division
president 11 Kennedy replied that he would discuss the matter during the follow-
ing week and would notify Ferguson when to come in to see him. Ferguson
testified that he received such a notification . Like the other salesmen whom
Kennedy interviewed , Ferguson came to Kennedy's office during the week follow-
ing the sales meeting. The versions of their discussion are in substantial agree-
ment that Ferguson informed Kennedy that he had signed an authorization and
wished to withdraw it; and that Kennedy stated that Ferguson could do as he
saw fit and that it was his privilege to write a letter to the Union withdrawing
his authorization . There is, however , a discrepancy of some significance between
the accounts the two witnesses gave. The Division president pictured himself
as "reluctant" to show the employees the sample draft , and he stated that he
did not exhibit it to "a single one until they asked me what to say." Ferguson,
on the other hand, asserted that Kennedy showed him the draft of a prepared
letter or statement before he asked for assistance in the preparation of his
letter . Ferguson described the draft as a "sheet of paper " without elaborating
on its contents , but that it was the one shown to the others is apparent from
Kennedy's testimony ." According to Ferguson , he handed the draft back to
Kennedy who put it in his desk . Ferguson stated that he then began to write
his statement and requested Kennedy to help him phrase it. "There may have
been a suggestion about phrasing . . .," Ferguson testified , after I asked him
how to say it, or how to put it in writing." Ferguson also expressed the thought
that he asked Kennedy if certain phrasing used to withdraw the authorization
"would be all right," and Kennedy replied that it was.
Ferguson 's testimony does not mention the fact that Kennedy interrogated
him about his attitude toward unionization , nor did he state at what point in the
conversation Kennedy showed him the draft. Ferguson stated that "when I
first came into the office , I told him I wanted to withdraw my authorization,"
but Kennedy 's account indicates that he interrogated Ferguson concerning his
attitude toward unionization before the employee told him that "he had signed
something with the union ." " Moreover, the sense of Kennedy 's general descrip-
tion of his discussions with the salesmen indicates that he interrogated them,
including Ferguson , before they described their attitude toward unionization.
Bearing in mind that Ferguson omitted any reference to the interrogation from
"At another point, Kennedy also testified that Ferguson told him at the time of the
meeting that he had signed an authorization. However, elsewhere in his testimony,
Kennedy indicated that Ferguson did not tell him about the authorization until the sales-
man came to his office. Ferguson stated that he could not recall whether he said anything
about the authorization in the first conversation. In view of the indicated discrepancy
in Kennedy's testimony, I shall make no finding that Ferguson told Kennedy about the
authorization on the evening of the sales meeting.
" Significantly, the sense of Ferguson's letter is the same as that written by Berry who
Is the only other person the record identifies as having given the Union an authorization.
Even much of the wording of both letters is the same. It is also noteworthy that, accord-
ing to Kennedy, whatever substantial difference there was between the Ferguson and
Berry letters and the statements furnished by the others was caused by the fact that
Ferguson and Berry told Kennedy that they had given the Union authorization, whereas
the others informed him that they had not signed anything for the Union.
1a According to Kennedy, Ferguson "did not know exactly" what he had signed for
the Union. Ferguson, on the other hand, testified that he told Kennedy that he "had
signed an authorization for the union to represent me." Moreover , at one point in his
testimony, Kennedy stated that "Ferguson and Berry told me voluntarily that they had
signed cards , representation cards, or something, .. .
UNITED BISCUIT COMPANY OF AMERICA 1561
his testimony, although Kennedy admittedly questioned him about his attitude,
I find that Kennedy interrogated Ferguson with respect to his feeling about union
organization before the Division president showed Ferguson the draft.
Berry testified that Kennedy asked him what he thought about the sales
meeting and "the union coming in," and whether he "had talked to any of the
organizers or anything like that." According to Berry, he replied that he had
spoken to the organizers and that he had signed an application for membership
in the Union. Then, Berry testified, Kennedy "wanted to know how I felt
about that application at the time" ; that he replied that be had signed the
authorization to help other signatories whose identity was not revealed to him ;
that Kennedy inquired whether he felt "the same way now" ; that he responded
that he had changed his mind and did not "feel that I need anybody to argue
my points for me"; that Kennedy asked him whether he would write a state-
ment to that effect ; that he replied that he "would be glad to" and asked Kennedy
what be should say ; that Kennedy answered, "I can't tell you what to say
but I have a statement here that one of the other boys wrote if you want to
glance at it for an idea" ; that Kennedy then produced a document, covering the
signature with a blotter ; that he (Berry) read the document ; and that he then
wrote the letter.
With their letters, Ferguson and Berry prepared envelopes addressed to the
Union. Each of them gave his letter and envelope to Kennedy's secretary for
mailing , providing or paying for the necessary postage, and the letters were sent
to the Union by registered mail with a request for a return receipt noted on each
envelope."
The substance of Berry's letter, according to Kennedy, although "shorter"
than the draft statement, was the same as that of the sample. Since the contents
of Ferguson's letter are substantially the same as those of Berry's, both letters
even containing many identical words, it necessarily follows from Kennedy's
testimony that the contents of Ferguson's letter, like Berry's, were substantially
the same as those of the draft.
0. Concluding Findings
The General Counsel's position apparently is that Kennedy (and therefore
the Respondent) violated the Act by (1) voicing a threat at the sales meeting
to close the plant in order to discourage the employees from engaging in con-
certed activities, (2) interrogating the salesmen individually in his office con-
cerning their attitude toward union organization, (3) questioning Berry with
respect to whether he had been approached by union organizers, and how be
felt about his "application (authorization) now," and (4) soliciting employees
"to withdraw their application blanks" from the Union1b
The sum of the Respondent's contentions, as reflected in its brief, is that
Kennedy's "reference to closing plants" was not a threat ; that the "interviews
initially were asked for by the employees" ; that there is no evidence of coercion
of the employees or hostility by the Respondent to unionization, as attested by
its collective bargaining relations affecting various other groups of employees ;
that in the absence of such evidence, whatever interrogation occurred is lawful ;
that such interrogation is protected both by section 8 (c) and the Constitution;
1' Although there is no direct testimony that the letters were mailed, the postmarks on
the envelopes bear witness that such was the case.
15 In the bill of particulars, the General Counsel also alleged that Kennedy told em-
ployees that those "Joining the union would not be promoted to supervisory positions." No
evidence was adduced to support the allegation.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that Kennedy did not solicit any salesmen to withdraw from the Union,
"but rather the salesmen came to (Kennedy) on the subject of withdrawal."
On the question of Kennedy's remarks at the sales meeting, the Respondent,
citing Kennedy's account, asserts that Kennedy's "only reference to closing
plants came about" when he stated that the Respondent's Toledo establishment
and some plants belonging to competitors were closed "because of lack of profits
caused by various factors." The claim has a nebulous aspect, for it does not
quite state what Kennedy said but only how the relevant remarks "came about."
It may be noted at this point that I am unable to attach any weight to Kusanelli's
agreement, under cross-examination, with a suggestion put in the form of a
leading (although proper) question that the statement "about closing the
plant . . . had no connection with the labor discussion." At another point,
he did not "know how they got into the discussion (about closing the plant),"
and he gave no details of other phases of Kennedy's remarks. Similarly, in
the light of Kennedy's testimony, I am unable to give controlling weight to
Berry's testimony that Kennedy made the statement that he could "close the
plant if he saw fit" in connection with a reference "to another place that was
losing money," the location of which he could not recall. Berry said that he
was unable to state during which portion of the meeting Kennedy made his
relevant remarks, and, like Kusanelli, he gave no details of other statements
Kennedy admittedly made at the meeting. Be that as it may, the Respondent's
description of Kennedy's "only reference to closing plants," overlooks the full
context of his own account of what he said at the meeting. Without further
elaboration at this point, it is enough to note that Kennedy's version of vXhat
he said amply supports the conclusion that his remarks about closing plants
were directly related to "the labor discussion."
The real question is whether Kennedy violated the Act by stating that there
might be shutdowns because of inability of the Union and the Respondent to
reach "some understanding" ; that a certain named competitor "sometimes has
strikes" and has "closed plants" ; and that the Respondent had closed its Toledo
establishment "because it turned out unprofitable." The versions given by
Kusanelli and Berry suggest that Kennedy made a more positive assertion of
his power to shut the St. Louis plant than would appear from his account.
However, as indicated above, the relevant testimony of Kusanelli and Berry
sounded a vague and inconclusive note. Kennedy's version is the only available
substantially detailed account of what he said. Hence, although he was plainly
guarded in both his demeanor and phrasing in describing what he said at the
meeting, whatever findings are to be made on the subject must be based, in the
main, on his testimony. While his remarks have an inhibitory flavor and come
close to the point of statutory violation, the evidence does not inevitably establish
that they contained "a threat of reprisal or force." His statement that there
might be shutdowns because of a deadlock with the Union in negotiations is
susceptible to the construction that what he meant was that inability to agree
with the Union might lead to strikes resulting in shutdowns. His assertion that
a competitor "sometimes has strikes" and has "closed plants" may suggest to
some a veiled intimation, whether or not coupled with the reference to the
Toledo plant, that the St. Louis establishment would be closed as a reprisal for
a strike. However, the reference to "closed plants" appears in substantially the
same context as the statement concerning "shutdowns" as a consequence of
deadlocked negotiations and is susceptible to the inference that Kennedy's
purpose in citing what a competitor had done was to illustrate the possible
economic consequences of an employer's inability to agree with a union. In
UNITED BISCUIT COMPANY OF AMERICA 1563
short, the evidence does not preponderantly establish that the intent and
meaning of Kennedy 's statements constituted a threat of reprisal for union
activity.
Turning to the interrogation of the employees in Kennedy 's office, some pref-
atory findings and comments are in order before a conclusion on the relevant
legal issues is set down . First, the Respondent asserts that the "interviews
initially were asked for by the employees ." The evidence establishes that only
Ferguson and possibly Kusanelli took the initiative in seeking the interviews
with Kennedy. Moreover, the mere fact that an employee seeks an interview
with an employer on the subject of unionization does not of itself confer upon
the employer the right to engage in unlawful interrogation of the employee.
Be that as it may , the sense of Kennedy 's own testimony is that he took the
initiative in arranging all of the interviews , except those of Ferguson and
Kusanelli . I have no doubt that Ferguson sought an interview after he heard
Kennedy at the sales meeting. In the light of Kusanelli's description of the
circumstances of the request that he came to Kennedy 's office, I have some
reservation that Kusanelli sought the interview. Whether he did so is of no
consequence , for the fact is, and I find , that with the exception of Ferguson,
the other employees did not request the interviews . Moreover , I find that all
of those interviewed, including Ferguson and Kusanelli , were summoned to
Kennedy's office at the Division president 's direction. Second, there can be
no doubt what Kennedy meant by the question , "What do you think about it?"
which he put to employees he interviewed. He was quite guarded in declining
to "commit" himself with respect to his meaning , but viewing the record as a
whole, the meaning of his question is plain , even if one ignores the versions
of Kusanelli and Berry . Obviously , Kennedy's inquiry did not relate to what-
ever sales and kindred problems were discussed at the sales meeting , for if it
did, it is singular that in no instance does he quote any employee as touching
on any other subject but his attitude toward unionization , his voting inten-
tions , approaches by union organizers , execution of authorizations for the Union,
and other matters related to the question of organization of the salesmen. In
fact , what the employees told him in response to his inquiry is revealing evi-
dence of how they construed his question , if their responses do not indeed
suggest that his interrogation was more extensive than the phrasing he attributes
to himself. In any event, the basic subject of his discussion at the sales meet-
ing was the Union 's attempt to organize the salesmen and, without passing at
the moment on Berry's testimony , I find that in sum and substance Kennedy
during the interviews in his office separately questioned between 12 and 15 of
the 19 salesmen then employed by the Respondent concerning their attitude
toward union organization of the group . Third , there is conflict between
Kennedy's testimony and the respective accounts given by Ferguson and Berry,
and this is an appropriate point to resolve it. As noted above, Kennedy claims
that he showed Ferguson the draft statement after the latter asked for assistance
in preparing his letter , while Ferguson asserts that he asked Kennedy for
assistance in phrasing the letter after Kennedy exhibited the draft. According
to Berry , Kennedy inquired of him what he thought about "the union coming
in," whether he "had talked to any of the organizers ," and how he "felt about"
the "application" he had signed for the Union . Without specifically referring
to Berry, Kennedy denied that he had "asked the salesmen if they had been
approached by the union ." With respect to that denial, it may be noted that
by his own account , some of the statements signed at his request set forth that
the employees concerned had been approached by organizers , while others stated
i
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they had not been, thus suggesting that such approaches had been the
subject of discussion between Kennedy and at least some of the salesmen. At
a number of points, Kennedy was evasive both in demeanor and in the text of
his testimony. He was also given to over-emphasis in portions of his testi-
mony as, for example, in his assertion that "all of the others told me right out
and looked me in the eye and said how they would vote," and my net impression
of the witness was that he was more concerned with advocacy than with factual,
objective descriptions of events. Moreover, his testimony contained significant
self-contradictions, some of which have been set out above. At the indicated
points where his testimony is in conflict with that of Ferguson and Berry,
I do not credit Kennedy, and I find that he showed Ferguson the draft before
the latter asked him for assistance in phrasing his letter, and that Kennedy
asked Berry what he thought about "the union coming in," whether he had
"talked to any of the organizers," and how he "felt about" the "application"
he had signed.
The Respondent argues that Kennedy's interrogation of the employees was
protected free speech and not unlawful in the absence of evidence of coercion
of the employees or an attitude of hostility toward unionization. To support its
contention, the Respondent cites Sao v. N. L. R. B., 171 F 2d 769 (C. A. 7) ;
N. L. R. B. v. Tennessee Coach Co., 191 F. 2d 546 (C. A. 6), and John L. Barnes
Corporation v. N. L. R. B., 190 F 2d 127 (C. A. 7). With every respect for the
courts which decided these cases, it may be noted that the Board has held in
many cases that interrogation by an employer of an employee concerning the
latter's union activities or his attitude toward unionization is per se violative
of the Act," irrespective of the existence of other evidence of coercion. As
the Board has put it, "Our experience demonstrates that the fear of subsequent
discrimination which interrogation instills in the minds of employees is reason-
able and well-founded. The cases in which interrogated employees have been
discharged or otherwise discriminated against on the basis of information
obtained through interrogation are numerous. These cases demonstrate con-
clusively that by and large, employers who engage in this practice are not
motivated by idle curiosity, but rather by a desire to rid themselves of union
adherents.s 17 The rationale of the Board's doctrine was quoted with apparent
approval in Joy Silk Mills v. N. L. R. B., 185 F. 2d 732 (C. A. D. C.). The Board
has also held that interrogation is not an expression of "views, argument or
opinion" and is thus beyond the scope of Section 8 (c),' and the Court of Appeals
for the Eighth Circuit reached substantially the same result in N. L. R. B. v.
Minnesota Mining & Manufacturing Co., 179 F. 2d 323.
However, it is unnecessary to attempt a reconciliation of the authorities,
nor is one driven to a choice between decisions that are apparently beyond
reconciliation. Without elaborating on the specific facts of the cases the Re-
spondent cites, it is clear that they are distinguishable. This proceeding does
not involve "mere words of interrogation or perfunctory remarks not threatening
or intimidating in themselves," 10 nor did the interviews consist of "isolated
remarks or questions." 20 The heart of the matter is that the whole setting was
1E Among other cases, see Standard-Coosa-Thatcher Co., 85 NLRB 1358; Linde Air
Products Co., Inc., 86 NLRB 1333; Interchemical Corporation, 83 NLRB 641 ; and Jack-
sonville Motors, Inc., 88 NLRB 181.
1* Standard-Coosa-Thatcher Co , supra.
1s Quarles Manufacturing Company, 83 NLRB 697, footnote 8 (also holding that such
interrogation is not immunized by the Constitution ); and Standard-Coosa-Thatcher Co.,
supra.
19 Sax v. N. L. R. B., supra.
20 John S. Barnes Corporation v. N. L. R. B., supra.
0
UNITED BISCUIT COMPANY OF AMERICA 1565
an inhibitory weapon interposed between the employees and their right to
self-organization. Kennedy is the top management official of an organization
which employs approximately 500 persons and is engaged in widespread opera-
tions. He was the voice of authority and corporate policy for the salesmen, and
it requires no speculation to assume that what he had to say, particularly in
a private interview with an employee would carry the weight of his status.
His were no casual or isolated inquiries ; on the contrary they were admittedly
separately directed to from three-fifths to three-fourths of the total number of
salesmen on the staff. It requires no speculation to assume that an employee,
separately summoned to the office of the Division's president for the purpose
of interrogation concerning his attitude toward unionization, would feel him-
self a special focus of his employer's interest in his attitude and activities. The
bold and the foolhardy might feel unconstrained by interrogation in such a
setting, but not the average man. The interrogation carried with it, in Judge
Washington's apt phrase, "at least the aroma of coercion" (Joy Silk Mills v.
N. L. R. B., supra). In any event, as the court observed in the Joy Silk Mills
case, "it has been consistently held that the question is not whether an employee
actually felt intimidated but whether the employer engaged in conduct which
may reasonably be said to tend to interfere with the free exercise of employee
rights under the Act."
Viewing the setting as a whole and the purpose for which Kennedy used it,
the state of the Respondent's relations with groups of unionized employees is
beside the point. One can think of many situations where an employer may
have good collective bargaining relations with some groups of employees but be
hostile to, or at least oppose, the unionization of others. Collective bargaining
relationships are moulded by varying factors, and not the least of these may be
the number of employees involved, the extent and strength of organization among
them, traditions of bargaining among employees performing the type of work
involved, the relative extent to which a strike among a given group may affect
the employer's operations, the relative economic power of the employer and
the union involved, and the availability of a given labor supply. It is thus
unrealistic to conclude that because an employer has good collective bargaining
relations with one group of employees, it inevitably follows that he will not
commit unfair labor practices with respect to another group, particularly one
that has no history of collective bargaining. In any event, the important ques-
tion is whether Kennedy violated the Act with respect to the salesmen and not
the state of the Respondent's relations with groups of employees already
organized.
There is no sanction either in Section 8 (c) of the Act or in the constitutional
guarantee of free speech for interrogation which interferes with or inhibits the
right of self-organization. On the contrary, the law forbids it.
The abridgement of the employees' rights was not confined to interrogation,
but was implemented by Kennedy's solicitation of the statements. Under all
of the circumstances, I cannot accord any operative weight to Kennedy's testi-
mony that in soliciting the statements, he "asked them twice, was it of their
own free will and accord and without coercion and so forth." 21 Men do not
communicate by words alone ; an atmosphere, a setting, and a relationship often
convey meaning at least as effectively as language. The guarantees of Section 7
could become a sterile abstraction if one were to hold that Kennedy immunized
himself from the statutory prohibition against interference by "asking" the
21 It may be noted that of the three employees who testified , neither Kusanelli nor
Kerry quotes Kennedy to that effect. The third , Ferguson , stated that when he told
Kennedy that he wished to withdraw his authorization , the Division president stated
he couldn 't "advise" Ferguson and that whatever the latter did was of his "own free will."
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees if the statements were given of their "own free will," while at the
same time using an inhibiting setting and a preface of coercive interrogation
to secure them.'
Kennedy's claim that he solicited the statements for "self-protection" in
the event that he was "called down here" (presumably meaning the Board's
Regional Office) sounds a peculiar note. He did not explain what he wanted
to protect himself against. There were no charges then pending against either
him or the Respondent and, if what Kennedy had in mind was the possibility
that such charges might be filed, it seems a curious fact that the statements
do not negate any claim of unlawful conduct, but in the case of Ferguson and
Berry, served to withdraw their authorizations, while the others dealt with
such matters as approaches by the Union to employees, the salesmen's voting
intentions, their disavowal that they wished to be represented, and satisfaction
with working conditions. There was a representation petition on file at the
time, but basically that could result only in a dismissal of the petition or
in an impartially conducted election to determine a claim of representation,
and one is unaware of any lawful purpose that statements procured under the
circumstances involved could have served in the representation proceeding.
Whatever Kennedy's purpose was, it is plain that the "self-protection" the
statements gave the Respondent was to furnish it with information, at Ken-
nedy's solicitation, concerning the signatories' relations with the Union and
their voting intentions and what was in effect a written commitment that
they did not wish to be organized. The solicitation of the statements was,
like the interrogation, in effect an inquiry into the employees' organizational
sympathies and activities. Its interfering character and inhibiting force are
quite obvious 38
The precise wording of the sample draft cannot be known because Kennedy
claims he destroyed it, nor do I deem its exact wording important. Kennedy's
testimony establishes that, whatever the wording, its essence was a disavowal
by the employees of a desire for organization, and judging by Kennedy's
description of the statements he received and the evidence provided by the
letters Ferguson and Berry wrote, that was a theme common to all the state-
ments or letters prepared in Kennedy's office. One need not pause to reconcile
Kennedy's claim that he was "reluctant" to show the employees the draft
with the fact that he prepared it in advance of the interviews. Significantly,
no evidence of such reluctance appears in the testimony of any of the other
witnesses who saw it. Nor is it necessary to shoulder the burden of pursuing
the somewhat abstruse distinction to be found in Kennedy's testimony between
letting an employee read the sample and permitting him to copy it. Similarly,
I deem it of no significance that some or all of those who read the sample
22 Similarly , I do not deem controlling testimony given by Berry that he wrote his
letter "very wilfully" and his agreement that Kennedy did not make "any intimidatory and
coercive statements or any threats ." The gravamen of the relevant allegation in the bill
of particulars is that Kennedy solicited the employees ; it is not that they furnished the
statements , whether freely or otherwise . Berry's assertion that he wrote the letter "very"
willingly and his conclusional agreement with a suggestion in question form that Kennedy
made no intimidating or coercive statements have no material bearing on the relevant
issue.
b My finding that Kennedy solicited the statements or letters from employees does not
apply to his interview with Ferguson . While some aspects of Kennedy's general description
of his interviews would warrant a finding that be solicited all employees , including Fer-
guson , who signed statements or letters, the specific descriptions by both Kennedy and
Ferguson of their conversation in the office do not establish that Kennedy solicited Fer-
guson 's letter , even though it was Kennedy who first advanced the notion that it "was
(Ferguson 's) privilege to write the union."
UNITED BISCUIT COMPANY OF AMERICA 1567
asked for "an idea" to help them prepare their statements before Kennedy
produced the draft' The facts to be borne in mind are that those of the
employees who asked for "an idea" did so after coercive interrogation and
in an inhibiting setting and that the sample draft was used as an instrument
of assistance in the preparation of statements which Kennedy had solicited in
the first place. And on the question whether Kennedy's use of the sample
draft constituted unlawful assistance to the two employees who withdrew their
authorizations, I do not deem it controlling that they executed their with-
drawal letters, as Berry put it, "very" willingly or that they now assert
that they had changed their opinions about the desirability of union representa-
tion prior to the interviews. The decisive facts with respect to the prepara-
tion of the two letters are that Berry did not disclose the existence of his
authorization until after Kennedy's interrogation ; that, according to one portion
of Kennedy's testimony, Ferguson similarly did not reveal that he had signed
an authorization until he came to Kennedy's office; that both employees were
interrogated there concerning their attitude toward unionization; that, in
addition, Berry was asked how he felt about his "application now" ; that
the notion of preparing the letters, even in Ferguson's case, originated with
Kennedy ; that he gave both employees a sample draft upon which they based
almost identical letters of withdrawal ; that the letters were then given to
Kennedy's secretary for mailing ; and that they were mailed by someone, pre-
sumably the secretary, who took the time to register them and assure evidence
of their receipt by the Union. In that setting, I find that Kennedy initiated,
and actively participated in, the preparation of the letters of withdrawal, and
facilitated their mailing.i6
In passing, one may note again Kennedy's testimony that he permitted only
a reading of the sample draft and did not allow employees to copy it because
he did not want to be "incriminated"; and that he destroyed the sample and
all of the statements, except Ferguson's and Berry's, because of his conclusion
"that maybe . . . I shouldn't even have them.s40 This testimony suggests that
Kennedy himself was aware of the impropriety of his use of the sample and
the solicitation of the statements. Whatever his conceptions were, it is clear
that, against the background of the interrogation of the employees and solicita-
tion of the statements and letters, as well as the setting as a whole, Kennedy's
use of the sample draft in assisting and facilitating the preparation of the state-
ments, including those written by Ferguson and Berry, and the mailing of the
withdrawal letters, constituted interference with the rights accorded employees
by section 7 of the Act.
In sum , I find that Kennedy interrogated employees concerning their attitude
toward unionization of the salesmen ; that he questioned Berry whether he had
24 As found above, Ferguson was shown the sample before he asked for some additional
assistance in phrasing when he got down to writing his letter. That negates Kennedy's
intimation that "in every instance" the employees who gave statements asked for "an idea"
before the sample was produced.
2e See American Bottling Company, 99 NLRB 345, distinguishing Hazen and Jaeger
Funeral Home, 95 NLRB 1034.
2a It seems a strange coincidence that the withdrawal letters were mailed to the Union,
while the statements of those who disclosed no authorizations were destroyed. Whether
the statements were in fact destroyed does not materially affect the results in this pro-
ceeding, but the difference in treatment of the documents , against the background of the
whole setting of the interrogation, raises a question, on which no finding need be made,
whether one of the purposes, if not the major one, of the interviews was to ascertain
which employees had given authorizations to the Union and to solicit letters canceling
such authorizations. In that regard, it is noteworthy that Kennedy's previously prepared
draft of a statement or letter was a model for two almost identical letters of withdrawal.
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been approached by organizers for the Union and how he felt about the applica-
tion (meaning the authorization) he had given to it; that he solicited written
statements from employees setting forth their attitude toward union organiza-
tion, their voting intentions, and whether they wished to be represented by
the Union ; that he assisted and participated in the preparation of the statements
by showing employees a sample draft of a statement as a model upon which to
base those they prepared; that he solicited Berry to write his withdrawal letter;
that he suggested to Ferguson a means of effecting his withdrawal ; that by
showing Berry and Ferguson a previously prepared draft of a letter as a sample
of a statement of cancellation of the Union's authority to represent an em-
ployee, and by facilitating the mailing of the letters, Kennedy assisted and
participated in the withdrawal of the authorizations ; and that by reason of all
such conduct the Respondent violated Section 8 (a) (1) of the Act24
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
As it has been found that the Respondent has engaged in unfair labor practices
violative of section 8 (a) (1) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact and of the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. Local Union No. 611, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. L., is a labor organiza-
tion within the meaning of section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in section 7 of the Act, the Respondent has engaged in
unfair labor practices within the meaning of Section 8 (a) (1).
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of sections 2 (6) and 2 (7) of the Act.
[Recommendations omitted from publication in this volume.]
27 The bill of particulars states that Kennedy solicited the withdrawal of "application
blanks" ( for membership ) from the Union. It does nut in terms allege that Kennedy
solicited the other statements or that he assisted the employees in preparing them. I
construe the term "application blanks" to be broad enough to include authorizations,
particularly as it is well established that an application for membership carries with it
an authorization to represent the signatory. Food Machinery Corporation, 41 NLRB 1428;
N. L. R. B. V. Sunshine Mining Co., 110 F. 2d 780 (C. A. 9) ; N. L. R. B. v Chicago
Apparatus Co., 116 F. 2d 753 (C. A. 7) ; N. L. R. B. v. Somerset Shoe Co., 111 F. 2d 681
(C. A. 1). Moreover, the solicitation of the statements and of Berry 's letter , the suggestion
that Ferguson write a letter, and the role Kennedy played in the preparation of the state-
ments and letters, were all fully litigated and may appropriately be made the subject of
findings. Olin Industries , Inc., 86 NLRB 203, enforced 191 F. 2d 613 ( C. A. 5) ; American
Newspaper Publishers v. N. L. R. B., 193 F. 2d 782 (C. A. 7).
STANOLIND OIL AND GAS COMPANY 1569
Appendix A
NovIcE 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 NOT interrogate our employees concerning their membership or
activities in any labor organization , or whether they have been asked to
join , assist , or participate in any labor organization, or their attitude toward
authorization of a labor organization to represent them or toward organiza-
tion of employees for the purposes of collective bargaining or mutual aid
or protection.
WE WILL NOT solicit, request, or assist any of our employees to abandon or
withdraw any authorization given to a labor organization to represent them,
or to abandon or withdraw from any membership in or activities in or on
behalf of any labor organization, or to state their attitude toward repre-
sentation by, or membership or activities in, any labor organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right of self-organization; to form, join,
or assist labor organizations ; to join or assist LOCAL UNION No. 611, affili-
ated with INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, A. F. L.; to bargain collectively through
representatives of their own choosing ; to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protection ;
and to refrain from any or all of such activities ; except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
All our employees are free to become or remain , or to refrain from becoming
or remaining, members of any labor organization, except to the extent that such
right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3) of the Act.
UNITED BISCUIT COMPANY OF AMERICA,
UNION BISCUIT DIVISION,
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.
STANOLIND OIL AND GAS COMPANY and OIL WORKERS INTERNATIONAL
UNION, CIO. Case No. 30-CA-d51. December 30, 1952
Decision and Order
On September 4, 1952, Trial Examiner Howard Myers 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 desist therefrom
101 NLRB No. 246.