Waffle Corp. of America

National Labor Relations Board - Board Decisions

Mar 23, 1953

103 N.L.R.B. 895 (N.L.R.B. 1953)

WAFFLE CORPORATION OF AMERICA 895
All production and maintenance employees at our Denver plant, ex-
cluding office and clerical employees , salespeople , and supervisors as
defined in the National Labor Relations Act.
WE WILL make whole Ray Trujillo for any loss of pay he may have suf-
fered as a result of our discrimination against him.
All our employees are free to become or remain , or to refrain from becoming
or remaining , members in good standing of INTERNATIONAL BROTHERHOOD OP
TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL
No. 452, AFL, 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.
BURTON-DIxIE CORPORATION,
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.
WAFFLE CORPORATION OF AMERICA and BAKERY & CONFECTIONERY
WORKERS INTERNATIONAL UNION OF AMERICA , LOCAL No. 173, AFL.
Case No. 16-CA-515. March 23, 1953
Decision and Order
On January 13, 1953, Trial Examiner Frederic B. Parkes, 2nd,
issued his Intermediate Report in the above-entitled proceeding, a
copy of which is attached hereto, finding that the Respondent Waffle
Corporation of America has not engaged in and is not engaging in
unfair labor practices within the meaning of Section 8 (a) (1) and (3)
of the Act as alleged in the complaint, and recommending that the
complaint be dismissed in its entirety. Thereafter, the General Coun-
sel and the Union filed exceptions to the Intermediate Report and sup-
porting briefs and arguments.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Murdock and Peterson].
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 Interme-
diate Report, the exceptions, briefs and arguments, and the entire
record in the case, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations except insofar as they are incon-
sistent with our findings, conclusions, and order as herein set forth.
Unlike the Trial Examiner, we find that the incidents involving
Plant Manager McFarlin's statements and queries addressed to em-
103 NLRB No. 41.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees Smith and Stewart violated Section 8 (a) (1) of the Act1
However, we do not deem these two isolated incidents, standing alone,
enough to warrant the issuance of a remedial order.2 We will, there-
fore, as recommended by the Trial Examiner, dismiss the complaint
in its entirety.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein against
Waffle Corporation of America, Chickasha, Oklahoma, be, and it
hereby is, dismissed in its entirety.
' We do not agree with the Trial Examiner 's views ( IR p. 904 ) as to the general effect
of a denial of certiorari in the Winer case. Syracuse Color Press, Inc., 103 NLRB No. 20,
contains the most recent expression of the Board's views on interrogation as a violation
of the Act. See also Washington Mills, 100 NLRB 93.
'American Thread Company , 97 NLRB 810 ; Gazette Publishing Company, 101 NLRB
1694.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Bakery & Confectionery Workers International
Union of America, Local No. 173, AFL, herein called the Union, the General
Counsel of the National Labor Relations Board, by the Regional Director for the
Sixteenth Region (Fort Worth, Texas), issued a complaint dated August 13,
3952, against Waffle Corporation of America, herein called the Respondent, al-
leging that the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3)
of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the
Act. Copies of the charges, complaint, and notice of hearing were duly served
upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent (1) about May 13, 1952, discriminatorily discharged Ernes-
tine Stewart and thereafter refused or failed to reinstate her for the reason
that she joined or assisted the Union or engaged in other concerted activities
for the purposes of collective bargaining or other mutual aid or protection, and
(2) since about February 29, 1952, to date, has interrogated its employees con-
cerning their union affiliations; has threatened and warned its employees to
refrain from assisting, becoming members of, or remaining members of the Union ;
and has kept under surveillance the meeting places, meetings, and activities of
the Union or the concerted activities of its employees for the purpose of self-
organization or improvement of working conditions. The complaint further
alleged that by the foregoing conduct, the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the Act.
Thereafter, the Respondent duly filed an answer, admitting certain allegations
of the complaint but denying that it had engaged in the alleged unfair labor
practices and setting forth certain affirmative defenses.
Pursuant to notice, a hearing was held on November 3, 1952, at Chickasha,
Oklahoma, before Frederic B. Parkes, 2nd, the undersigned Trial Examiner duly
designated by the Chief Trial Examiner. On November 8, 1952, the record was
WAFFLE CORPORATION OF AMERICA 897
reopened for the purpose of taking further testimony at Minnekah, Oklahoma.
The General Counsel and the Respondent were represented by counsel and the
Union by an official representative. Full opportunity to be heard, to examine
and cross-examine the witnesses, and to introduce evidence bearing on the issues
was afforded all parties.
At the outset of the hearing, the complaint' s allegations regarding the volume
of the Respondent's operations were amended upon motion of the General Coun-
sel. Upon the conclusion of the hearing, the undersigned granted a motion by
the General Counsel to conform the pleadings to the proof as to dates, spelling,
and minor variances. Respondent's motion for the amendment of its answer to
conform to the proof was also granted. The undersigned advised the parties
that they might argue before and file briefs or proposed findings of fact and
conclusions of law, or both, with the Trial Examiner. The parties waived oral
argument . Thereafter, the Respondent filed a brief with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Waffle Corporation of America, a New York corporation with its principal'
office and place of business in New York, New York, and with plants in Phila-
delphia, Pennsylvania, and Chickasha, Oklahoma, is engaged in the manufacture,
sale, and distribution of frozen waffles. The Respondent is affiliated with the
Doughnut Corporation of America. The instant proceeding is concerned with its
operations in Chickasha, Oklahoma. In the course and conduct of its business
operations at its Chickasha plant during the 12-month period ending March 30,
1952, the Respondent purchased raw materials, consisting principally of pre-
pared flour mix and packing material, valued in excess of $135,000, of whichi
approximately 100 percent was shipped in interstate commerce to its Chickasha
plant from points outside the State of Oklahoma. During the same period, the
Respondent sold products, consisting principally of frozen waffles, valued in
excess of $240,000, of which approximately 100 percent was shipped in interstate
commerce from its Chickasha plant to points outside the State of Oklahoma. The
complaint alleged, the answer did not deny, and it is found that the Respondent
is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Bakery & Confectionery Workers International Union of America, Local No.
173, AFL, is a labor organization admitting employees of the Respondent to
membership.
III. THE UNFAIR LABOR PRACTICES
A. Advent of the Union; sequence of events from February through April 1952
The Union scheduled its first meeting of the Respondent's employees for the
evening of February 29, 1952. Employee Mary Nunn testified on direct examina-
tion that on the morning of February 29, 1952, at work, she had the following
conversation with Foreman Eddie Eslick in the presence of employees Don
Muchmore and Dorothy Gray :
[Foreman Eslick] asked, "Why I hadn't sent him a card to report at the
union meeting?" And I said, "I had nothing to do with that." I said, "Well,
you probably wouldn't have wanted any anyway." He said , "I sure would
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have." ... [Nunn countered], "Well , I want you to know right now that I
had nothing with sending the union cards out . I got one just like the other
people." He said, "Well , I hope we get the union ; we would do a little more
work around here, and less griping and fussing ;" that there would be more
work done.
On cross-examination , however , Nunn admitted that the conversation between
her and Eslick was initiated not by Eslick, but by Nunn, who asked Eslick "what
made him think that I was the one who sent the cards out and didn 't send him
one" and whether he had made such a statement . According to Nunn 's testi-
mony on cross-examination , Eslick denied making such a statement but in the
ensuing conversation said that he "hoped it would go union ; there would be
more work done and they would work harder , and there wouldn 't be so much of
that standing around and yapping."
Foreman Eslick testified that his only conversation with Nunn in which the
Union was mentioned occurred on the day when Nunn asked Eslick whether
he had said that Nunn had failed to send him a card announcing the union
meeting that evening. In reply to Nunn's question, Eslick denied having made
such a remark . Eslick testified that he made no further remarks about the
Union in the conversation . The decided contrast in Nunn's testimonial versions
of the conversation in question given on direct examination and cross-examina-
tion, gives the undersigned reason to doubt the reliability of Nunn's testimony.
In view of this consideration, as well as his impression of the witnesses, the
undersigned credits the testimony of Eslick as to his conversation with Nunn
.and rejects Nunn's testimony except to the extent that it was in accord with
the credible testimony of Eslick.
Nunn further testified that in the afternoon of February 29, 1952, she over-
heard a conversation between Foreman Eddie Eslick and a group of employees
and that the following occurred :
... Eddie was against the union then , so I asked him why he changed his
mind and he said that it was the way he felt about it. He said, a lot of
us would change our minds after we had a meeting that afternoon . That is
about all I heard him say that afternoon.
Q. [By Mr. Youngblood] Did he say anything about losing jobs?
A. He said, if we weren't careful, a lot of us would lose our jobs over there
over this union business before it was over.
Eslick specifically denied that he made the statements attributed to him by
Nunn and insisted that the conversation referred to by Nunn never occurred.
For the reasons previously mentioned, as well as the fact that Nunn's testimony
was not corroborated by other witnesses , the undersigned credits the testimony
and denials of Eslick and rejects the testimony of Nunn.
It was Nunn's testimony that later in the afternoon of February 29, 1952, Plant
Manager W . M. McFarlin assembled the employees and addressed them as
follows :
Well, he told us that he had been working for us, a raise, for six months,
and he had good news to tell us that day ; that he was all pepped up until he
heard about this union ; and he did his best to get us a raise, and finally got
us a five-cent raise that day, and that is all that the Wage Stabilization
Board would allow us; and he was doing all in his power to have one big
happy family to work there, and that is the way he wanted it to remain;
that there was no need of us going down there spending our money for a
union, and this and that ; under the conditions that it was, he thought we
WAFFLE CORPORATION OF AMERICA 899
was all getting along just fine, and that is the way he really believed it to be.
And he said, if we went union we wouldn't get any more money that we was
getting, because he had a letter stating how much that the Wage Stabiliza-
tion Board would allow us, and he would try, the way he was explaining it,
on the cost of living going up if it went up, why, we would get more, and if
it went down, we would get less money. So he tried to explain that to us.
Q. Did he say about what he told his boss?
A. Well, he promised, that if he came down to open a plant in Chickasha,
that he would try his best and that he would try his best that it would be
a nonunion plant.
In respect to the meeting of employees on February 29, 1952, McFarlin gave
the following testimony :
Q. [By Mr. Vaughn] I wish you would, if you could, please, sir, just tell
us why you called a meeting of the employees together at that time, and the
statements that you made to them, if you remember.
A. We had a statement of policy which had just come to me officially that
morning out of the New York office on which we had been working for some
time, concerning the wages, hours of work, conditions of work, and so forth.
We were awaiting our position in regard to a statement to the employees,
and this meeting was held to explain the complete text of this agreement.
I had also digressed from the body of the statement to explain about the
Wage Stabilization Board.
Q. Before we get to that, Mr. McFarlin, what statements did you make to
the employees explaining this wage policy and pay increases of your com-
pany that you had just gotten that day from the office?
A. Well, I took it paragraph by paragraph and went through it, and re-
lated the set up that we had for wage increases, including the cost of liv-
ing clause, which needed some explanation. It included our hours of work,
our regularly scheduled working day ; we referred in the agreement several
times to overtime pay, relating to regularly scheduled working days and
otherwise, and that needed to be explained.
* s * * * * s
Q. All right, what digression did you make in reference to any reference
to the Wage Stabilization Board at that time?
A. I merely wanted to explain the workings of the Wage Stabilization
under which we were working at that particular time insofar as the fact
that in order to get wages increased, that we had to begin with, we had to
file for approval with the Wage Stabilization Board when we first started,
and that any increases granted after that time had to be approved by the
Wage Stabilization Board ; that there was no way to get wages increased
without proper authority from the Wage Stabilization Board. In other
words, I just explained what the Wage Stabilization Board covered.
Q. Did you also advise the employees at that time that particular wage
increase had been approved by the Wage Stabilization Board?
A. That is correct.
Q. Was there anything said about that was all that could be allowed
under the formula that was approved by the Wage Stabilization Board?
A. No.
Q. Nothing said about that?
A. Nothing said about that.
Q. Was there anything said about the union?
A. We did not refer to the union in any way.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You didn 't even know that there was a union at that time?
A. No.
Q. You know there was any union activity in your plant?
A. No, I didn 't know there was union activity. I referred at that meet-
ing to the sort of disgruntled attitude that was had on the part of our em-
ployees , and made an effort to get to the core of it to get it cleared up.
Q. But at that time you didn't know what it was?
A. At that time I didn 't know what it was.
Q. Were you advised that day or informed to what it was?
A. No, I was not.
As mentioned above, Nunn did not impress the undersigned as a reliable wit-
ness. Her version on direct-examination of her conversation with Eslick differed
sharply from that given on cross-examination. As discussed below, a similar
variance in her testimony occurred in her versions of a conversation with
McFarlin in May 1952. Moreover, Nunn's testimony was not corroborated by any
of the other employee witnesses who were called by the General Counsel and who
were working for the Respondent in February 1952. On the other hand, Mc-
Farlin appeared to be a sincere and candid witness, not prone to the glib denial.
Accordingly, the undersigned credits the testimony of McFarlin in respect to his
address of the employees on February 29, 1952, and rejects the testimony of
Nunn except to the extent that it was in accord with that of McFarlin.
In the early spring of 1952, the Respondent encountered difficulty in its packing
department. A group of 8 or 10 employees packaged the frozen waffles, 6 to a
box, and inserted a card bearing instructions and recipes for the use of the
waffles. These cards were given to the packers in lots of 500 and the total number
of cards used individually and collectively by the packers was recorded each day.
Thereby, the Respondent ascertained the total number of packages issued each
day by the plant and by each packer. These were the sole records of the plant's
ultimate production kept at the time in question and the packers were on numer-
ous occasions warned to insert only 1 recipe card to each package, with the fur-
ther explanation of the importance of the cards as a record of production. Dur-
ing this period, however, it was discovered that many packages were being sent
out from the packing department with more than 1 card in them ; in some pack-
ages, as many as 8 cards were found.
Opal Smith, who was employed in the packing department, testified that about
'larch 14, 1952, she had the following conversation with Plant Manager W. M.
McFarlin in the latter's office ; McFarlin showed her a number of bags of waffles
packed with more than one card in them and inquired whether she had seen any
like them. Smith replied that she had and McFarlin asked whether she had any
suggestions to cure the problem of extra cards in the packaged waffles. Smith
stated that she was not in a position to tell him what to do. They discussed the
work performance of some employees. The conversation then turned to the
Union and McFarlin asked Smith why the employees wanted a union. Smith
replied, "Because of conditions that existed in the plant," and enumerated them.
McFarlin queried whether the employees "thought a union was going to do
anything for us that he couldn't do." He asked whether A. L. Hendricks, busi-
ness agent of the Union, had informed the employees of the wage rates paid by a
bakery in Oklahoma City. Smith replied that she could not remember whether
Hendricks had mentioned that matter. McFarlin also inquired whether "Mr.
Hendricks told us that some of the girls from the union had told the other girls
in the plant that it would cost them $30 if they didn't join then, if they waited,
and he asked me if Mr. Hendricks had told us that." McFarlin further interro-
WAFFLE CORPORATION OF AMERICA 901
gated Smith as to her previous union membership. Smith replied, "No, that I
hadn't, that while I was employed in California for Douglass Aircraft, that they
were voting for a union, but I left there." During the colloquy, McFarlin told
Smith "about some businessman in California" who "would throw a union repre-
sentative out of his office if one came in."
McFarlin admitted on cross-examination that he discussed the Union with
Smith at the plant but denied that he had ever " said anything derogatory to
Mrs. Smith" about the Union. He recalled "telling her that if she had been
told about the initiation fee being more for joining later or vice versa, that that
was a misrepresentation." Since Smith appeared to be a sincere and honest wit-
ness and since McFarlin failed to deny specifically the utterance of statements
attributed to him by Smith, the undersigned credits Smith's testimony and
finds that the conversation between her and McFarlin occurred as testified
to by Smith.
In March 1952, Ernestine Stewart, an employee of the packing department,
was summoned to Plant Manager McFarlin's office. The testimony of Stewart
and McFarlin was, in the main, mutually reconcilable, with but one serious con-
flict as to the statements made . Considering the testimony of both witnesses as
a whole, it is found that the following occurred : McFarlin initiated the con-
versation by showing Stewart a number of packages of frozen waffles packed
with more than one card and explained the difficulty in that regard which had
arisen in the packing department. Stewart denied that she was responsible
for the packing of such boxes with an excess number of cards and McFarlin
stated, according to his credited testimony, that he was not accusing "her
directly of putting more than one card in a package, but that somebody on
the table was doing it . . . and that we intended to find out who it was." In
the ensuing conversation, when McFarlin asked Stewart whether she had belonged
to a union in the past, she replied, "No, I never had." At that point, McFarlin
countered, "You do now?" and Stewart acknowledged that she did' McFarlin
also asked Stewart in their conversation as to the reason she "wanted to go
out and join the union and have somebody come in and take over." Stewart
replied, "We would get more pay out of it." At some point in the colloquy,
McFarlin referred to the records of her previous employment, remarked that
she had a good job and was presently earning more than she ever had, and in
reference to the wage policy of the Respondent enunciated earlier in the year,
commented that Stewart would soon be receiving an automatic 5-cent an hour
increase in pay upon the completion of her initial 6-month period of employ-
ment with the Respondent. During the conversation, McFarlin also stated
something to the effect, according to Stewart, that the Respondent "would never
sign a contract with a dishonest guy." This comment arose, according to the
credible testimony of McFarlin, as a result of their discussing the propriety of
the rumored increase in initiation fees for employees who did not join the Union
during the organizational campaign and McFarlin's assurance "that if they
had been told that, whoever told them that, had misrepresented the situation to
them."'
1 McFarlin denied somewhat hesitantly but without conviction that he ever interrogated
Stewart about the Union and testified that he never made any derogatory remarks about
the Union to Stewart. Based upon the undersigned's observation of the witnesses, as
well as McFarlin's failure to deny specifically many of the statements and queries attrib-
uted to him by Stewart and Smith, the undersigned rejects McFarlin's denials and accepts
Stewart's version of this portion of the conversation.
2 The quotation is from McFarlin's testimony, which appeared to the undersigned to be
more logical and credible on the point in question than that of Stewart . In this regard,
she testified on cross-examination that the remark in question, that the Respondent would
257965-54-vol. 103-58
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About April 28, 1952, pursuant to a consent-election agreement executed by the
Respondent and the Union, the Regional Director conducted an election among
the Respondent's employees to determine whether or not they desired to be rep-
resented by the Union for the purposes of collective bargaining. The Union lost
the election. Thereafter, the Regional Director sustained objections filed by the
Union to the conduct of the election and set the election aside.
B. The alleged discriminatory discharge of Ernestine Stewart
Ernestine Stewart entered the Respondent's employ on September 10, 1951, and
initially worked in the baking department. In January 1952, she was transferred
to the packing department. She joined the Union on February 29, 1952, and
attended all union meetings.
During the spring of 1952, the difficulty arising from the insertion of more
than 1 card in each package of waffles packed in the packing department con-
tinued. In April 1952, all employees of the department were assembled and the
importance of inserting only 1 card to a pack was explained to them by McFarlin,
who also explained that a time check would be conducted with each employee
on the basis o, marked cards to ascertain the length of time consumed by them
in packing 500 packages. When this test was run, no extra cards were found
in the packages of waffles. However, when packages with 2 or more cards again
appeared, the packing department employees including Ernestine Stewart, were
warned about the matter by Foreman Eslick.
In May 1952, the employees of the packing department were again checked in
their packing operations by giving each of them 50 marked cards but without
informing them of the test being run or of the fact that the cards were marked.
On May 13, Stewart and employees Merril Clark, Laureen Turpin, and Daisy
Russell were checked with marked cards ; a day or two previously the other em-
ployees in the department had been similarly tested but no boxes with an in-
ordinate number of cards were discovered. Following the test on May 13, how-
ever, it was discovered that 10 or 12 boxes containing the marked cards given
Stewart held from 2 to 4 cards per box. The packages filled by the other em-
ployees being tested did not contain more than 1 card each. Shortly thereafter,
Stewart was summoned to McFarlin's office and shown the boxes which she had
packed with more than 1 card in them. When she denied that she was responsible
for any boxes with more than 2 cards in them, McFarlin showed her that the
cards had been marked with an "E" and given to her that morning. McFarlin
informed her that she was discharged because of "her dishonest act, falsifying
our records."$
Although as a result of McFarlin's discussion with Stewart in March 1952, her
membership in the Union was known to the Respondent, the undersigned is not
not sign a contract wih a dishonest guy, arose as a result of McFarlin 's asking "what was
the union going to do for me, and I told him that I didn't know ; and he asked me if they
were selling me something that I didn't know what I was buying." This testimony is some.
what at variance with that given by Stewart on direct examination that when McFarlin
asked her for the reason she joined the Union, she replied, "We would get more pay out
of It."
a The findings in this and the preceding paragraph are a composite of the testimony of
Plant Manager McFarlin, Foreman Eslick, and employees Daisy Applegate and Otsie Romo,
who were witnesses called by the Respondent, and that of Stewart. The latter testified on
rebuttal that on May 13, 1952, she was shifted from her usual work station which was
assumed by a new employee. This circumstance does not, in the undersigned's opinion,
effectively refute the testimony of the Respondent 's witnesses that the marked cards in
question were given to Stewart. In any event, there is no showing that she brought this
matter to McFarlin's attention on May 13, when be discharged her, or gave him any reason
to doubt that the cards marked "E" were packed by Stewart.
WAFFLE CORPORATION OF AMERICA 903
persuaded that this factor or any statement uttered by McFarlin in his March
conversation with Stewart is sufficient to sustain the complaint's allegations that
Stewart was discriminatorily discharged. So far as the record shows, her union
advocacy was limited to joining the Union on February 29, 1952, and attendance
of union meetings. Inasmuch as the record clearly establishes that Stewart
violated the Respondent's rule that only one recipe card should be inserted in
each package of waffles, despite the fact that she had been warned on several
occasions about the matter, it is found that Stewart was discharged for cause
and that in effectuating her discharge, the Respondent has not discriminated
in regard to the hire and tenure of Stewart's employment within the meaning of
the Act.
O. Plant Manager McFarlin's conversation with employee Nunn in May 1952
In March 1952, employee Mary Nunn left the Respondent's employ on a leave
of absence because of illness. On May 2, 1952, when she believed that she was
able to return to work, she consulted with Plant Manager McFarlin and it was
agreed that she should resume work on May 5, 1952. It is found that the follow-
ing occurred in their colloquy on May 2, 1952, as revealed by the credible testimony
of Plant Manager McFarlin :
Q. [By Mr. Vaughn] Now, I wish you would tell us, if you please, sir,
about the conversation that you had with 1VIrs. Nunn there on May 2?
A. Well, she mentioned to me that she had heard that I had made some
pretty rough remarks about her to the employees, and I told her that I didn't
make any rough remarks about her, that I believed that anything I had to
say I would say to her directly. She asked me about coming back to work,
and I told her that I was happy to have her back, that we were going to put
her on her old job, and if it proved too much for her, we would swap her
over at the packing table.
Q. Now, of course, when she came back to you on May 2, you knew that she
was a member of the union at that time, did you or did you not?
A. She told me. . . . I believe she told me that they didn't want me to think
that she had started the union thing ; that she belonged to it, and that I
would be surprised if I knew who did, or words to that effect. I believe her
testimony about that is correct as far as I remember it. . . . I did not ask
her to whom she referred.
Q. You don't know yet?
A. No.
Q. And don't care?
A. No.
Q. Did you make any statement to her about the fact that she did or did
not belong to the union had anything to do with her employment in the plant?
A. I probably made the statement to her, I made it to some other people
that the union activities had nothing to do with their employment there ;
that this was a free choice, and we made no discrimination about it.
* * * *
Q. Did you ever interrogate her about her union activity or any of these
unions, anything about the union?
A. No, I did not interrogate her about the union.
Q. Now, she says that you made the statement to her that you were tired
of keeping your mouth shut and wanted to get this mess settled down, that
you called in everybody and told them the same thing . Did you make any
such statement?
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, essentially, that statement was made, but I think I can put it in
some other words.
Q. Well, you tell us what was said.
A. I believe I told her that I had been unable to talk to my people as
much as I wanted to. The mess to which I referred was not a union mess,
at least I didn't refer to it as that ; we had a terrific amount of discontent.
As you put it a while ago, yaking, with the result that our efficiency was
suffering in the plant. and I had talked to the people about that. I had
refrained all during the period from the time we were notified of the union
organization until after the election from making any sort of remarks about
the way our work was being conducted. I had been put through a rather
rough time to try to do a job when we had some people who obviously were
placing . . . obstacles in our path, so that was the thing to which I referred
when I told them-I wasn't referring to any union organization or activity
whatsoever. I had my own ideas about what was causing the trouble, but
I didn't put it in so many words to Mrs. Nunn or anybody else.`
D. Conclusions as to the complaint's allegations of interference, restraint, and
coercion
In the past, the Board has uniformly held employer interrogation of employees
concerning their union membership and activities to be violative of Section 8 (a)
(1) of the Act, under the rationale fully set forth in the Standard-Coosa-Thatcher
case.' If this principle were still controlling, it would follow that Plant Manager
McFarlin's interrogation of employees Smith and Stewart as to their union mem-
bership, sympathies, and activities would be considered violative of the Ad!
However, the tenet that an employer's interrogating his employees concerning
their union activities was per se violative of the Act has been modified by the
denial by the Supreme Court of the United States of a petition for writ of certio-
rari in the Winer case.' As a result of the denial, the views of the circuit court 8
are now controlling, as the Board has indicated,' upon the factual circumstances
* As previously mentioned, McFarlin appeared to be a more reliable witness than Nunn.
For this reason, as well as the fact that there was a disturbing variance in Nunn 's testi-
mony on direct and cross-examinations as to a portion of the conversation with McFarlin
on May 2, the undersigned is unable to accept her testimony as to her conference with
McFarlin except to the extent that her testimony was in accord with that of McFarlin.
Thus, on direct-examination, Nunn testified, "I asked him if it was true" that he had said
that "he had to work me three days and I would be laid off, that there was nothing he could
do about that. So I said that he could not lay me off and that he would have to have
a pretty good reason to lay me off. He said he did not and he wouldn't promise me noth-
ing on that. So I told him that I just wanted to know if it was true, and be-I asked
him if he remarked that he would fire me and Tyler at the beginning of the union business,
that it was being watched, and he said, yes, he did." Yet, on cross-examination, Nunn gave
the following testimony : ". . . when I asked him what he had said, he said, yes, that
he said a few things, and that I had too ; that he was very hurt at some of the things
that I had said . . . So he never did right out and tell me just exactly the words that
he had said, but we sat there and kind of bad a pretty nice conversation over a lot of
things that I had supposed to have said, and he supposed to have said, and we got that
thrashed out"
8 Standard-Coosa-Thatcher Company, 85 NLRB 1358.
6 Under the findings of fact made above, it is clear that the conversation between Fore-
man Eslick and employee Nunn in February 1952, Plant Manager McFarlin' s announce-
ment of the Respondent's new wage policy and address of employees in February 1952, and
the conversation between McFarlin and Nunn in May 1952, were not violative of the Act.
7N. L. R. B. v. Arthur Winer, Inc., 344 U. S. 819, October 13, 1952, Board's petition fol
certiorari denied.
8 N. L. R. B. v. Arthur Winer, Inc., 194 F. 2d 370 (C. A. 7).
9 Cf. S. D. Cahoon et al., 101 NLRB 966.
SHEDD-BROWN MFG. CO. 905
presented by that case and are to the effect that absent "a general pattern and
plan of anti-union hostility" or promises of benefit or threats of reprisal, employer
interrogations of employees, under the circumstances of the Winer case, are not
violative of the Act. Although the matter is not free from doubt, the undersigned
is persuaded that the facts and circumstances of the Winer case are comparable
to those of the instant proceeding and make the conclusions reached in that case
controlling upon the issues herein involved. As found above, the complaint's
allegations as to the discharge of Stewart were wholly without merit. Moreover,
McFarlin's interrogations of employees Smith and Stewart were not accompanied
by promises of benefit 10 or threats of reprisal and are, in themselves, insufficient
to establish a "general pattern and plan of anti-union hostility" on the part of the
Respondent. It is accordingly found that McFarlin's statements and queries
addressed to employees Smith and Stewart were not violative of the Act. In
conclusion, the undersigned finds that the Respondent has not engaged in viola-
tions of Section 8 (a) (1) and (3) of the Act and will recommend that the com-
plaint be dismissed in its entirety.
On the basis of the foregoing and upon the entire record in the case, the under-
signed makes the following:
CONCLusIONS'OF LAW
1. Waffle Corporation of America is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. Bakery & Confectionery Workers International Union of America, Local
No. 173, AFL, is a labor organization within the meaning of Section 2 (5) of
the Act.
3. Waffle Corporation of America has not engaged in unfair labor practices
as alleged in the complaint within the meaning of Section 8 (a) (1) and (3) of
the Act.
[Recommendations omitted from publication in this volume.]
10 In reaching this conclusion, the undersigned has considered the fact that in March
1952, McFarlin told Stewart that the latter would soon be receiving an automatic 5-cent
an hour increase . This statement was one of fact and cannot be construed to be a promise
of benefit, since under the Respondent's wage policy, enunciated and explained to the
employees early in 1952, an employee automatically received an increase of 5 cents an hour
after being in the Respondent 's employ for 6 months. Stewart completed her first 6-
month period of employment by the Respondent on March 10, 1952.
SHEDD-BROWN MFG. Co. and UNITED PAPERWORKERS OF AMERICA,
C. I. O. and DULY AUTHORIZED COMMITTEE OF PRODUCTION EM-
PLOYEES OF SHEDD-BROWN MFG. CO., ALSO KNOWN AS SHEDD-BROWN
PLANT ASSOCIATION, PARTY TO THE CONTRACT. Case No. 18-CA-9290.
March,23,1953
Supplemental Decision and Order
On January 28, 1952, the Board issued its Decision and Order in
the above-entitled case.' Thereafter, Shedd-Brown Plant Associa-
tion, herein called the Association, and the Respondent, each filed a
1 102 NLRB 742.
103 NLRB No. 107.