Walter Pape, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1970

181 N.L.R.B. 810 (N.L.R.B. 1970)

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walter Pape , Inc. and Local 719, Production,
Distribution and Maintenance Employees Union.
Case 29-CA-1636
representation.
Upon the entire record and my observation of the
witnesses, I make the following
March 26, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On December 2, 1969, Trial Examiner Owsley
Vose issued his Decision in the above-entitled
proceeding, finding that Respondent 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 attached Trial Examiner's Decision
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
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 Trial
Examiner's Decision, the exceptions and brief,' and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Walter Pape, Inc.,
Brooklyn, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
'Respondent excepts to the Trial Examiner 's credibility findings It is the
Board's established policy, however , not to overrule a Trial Examiner's
credibility findings unless, as is not the case here, a clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We find no
basis for disturbing the Trial Examiner 's credibility findings in this case
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VosE, Trial Examiner This case, heard at
Brooklyn , New York, on August 27, 1969, pursuant to a
charge filed April 17, 1969, and a complaint issued on
July 23, 1969, presents the question whether Respondent,
in violation of Section 8 (a)(1) of the Act, promised and
granted wage increases and threatened the loss of benefits
in order to induce employees to reject union
FINDINGS AND CONCLUSIONS
I THE NATURE OF THE RESPONDENT'S BUSINESS
The Respondent , a New York corporation, is engaged
at its place of business in New York City in the sale and
distribution of milk and dairy products . During the year
preceding the issuance of the complaint the Respondent
purchased and had delivered to its New York City facility
from out-of-State sources over $50,000 worth of milk and
dairy products . Upon these facts I find, as the Respondent
admits, that it is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein
iI THE LABOR ORGANIZATIONS INVOLVED
Local 719, Production, Distribution and Maintenance
Employees Union ( herein called Local 719) and Local
338, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (herein called
Local 338) are labor organizations within the meaning of
Section 2(5) of the Act
Ili THE UNFAIR LABOR PRACTICES
The Respondent ' s acts of interference , restraint and
coercion in violation of Section 8 (a)(1) of the Act
A. The Facts
1. Background
In October 1968, Daniel Sullivan, Secretary-Treasurer
of Local 719, presented Walter Pape, the President of the
Respondent, with cards signed by a majority of the
Respondent's employees, excluding supervisors and office
clerical employees, authorizing Local 719 to act as their
exclusive collective-bargaining representative, and
requested that the Respondent recognize Local 719. After
examining the cards, President Pape signed a recognition
agreement with Local 719
Thereafter Local 438, without submitting any cards,
sent the Respondent a telegram demanding that it
recognize Local 438. On November 29, 1968, Local 438
filed with the Board's Regional Director a petition under
Section 9 of the Act requesting that it be certified as the
exclusive collective-bargaining representative of the
Respondent's employees The hearing in the representation
case was postponed several times and was not held until
April 18, 1969
2 The Respondent 's promise of a benefit to Francis
McMullan
On April 10, 1969, about a week before the hearing was
scheduled to be held in the representation case, President
Pape approached Francis McMullan, one of the
Respondent's route salesmen, in the garage, as he was
returning with his truck and asked him, specifically
referring to Local 719, "if [he] received a raise would [he]
disassociate [himself] with the union " McMullan refused,
181 NLRB No. 123
WALTER PAPE, INC. 811
saying "that the raise would be fine for now, what about
next year, or the year after "i
3 The Respondent ' s grant of a wage increase
When the route salesmen returned to the garage on
Monday, April 14, 1969, after completing their day's
work , Pape stopped the trucks on the way in and
informed the drivers individually that he had given them a
pay raise , that their guarantee was being raised from $120
to $140 a week . At the end of the week the men received
their increased paychecks for the first time A few weeks
later , the Respondent granted wage increases to its
warehousemen and mechanics In the 9-year period, the
Respondent had been in business it had granted at most
three general wage increases . Pape testified that it was
"probably" in 1966 that the route salesmen's wage
guarantee was last increased.
4 The Respondent's letters of May 7 and 14, 1969
On May 7, 1969, after the hearing in the representation
case and before the issuance of the Regional Director's
decision, the Respondent sent a letter to all of its
employees dealing with the subject of union
representation. Quoted below is the letter sent to Francis
McMullan.
Dear Frank,
During the past seven months all of us have been
under considerable strain, resulting from the union
activities which have been taking place These have
been difficult times, and all of us have been adversely
affected At this time I would like to bring you up to
date on what is happening with your company's labor
situation and my feelings regarding it
At the present time two unions are fighting over you.
One union has indicated that it has a majority of the
employees signed up claiming that it is the bargaining
agent for you men. The other union claims you men
want it to represent you and wants to have an election.
Why are two unions so interested in us - a small
company with twenty-five potential members?
I would like to state that the company would prefer
to continue non-union
For many years we have operated successfully
without unions We have endeavored to keep pace with
industry in wages, fringe benefits and working
conditions, and we will continue to do so in the future.
Through extended illness of a number of you men we
have continued, uninterrupted, to pay sick benefits.
Should either union win an election, I would definitely
stop this benefit
We have substantially increased wages to provide
you with additional income These increases were
recently given to you by the company without your
having to pay initiation fees or dues to any union.
We are investing in you and your ability and we now
need your added cooperation and effort to provide
additional sales which are vital to the company.
Our track record is good and I would prefer all of
you to tell both of these unions that they are not
wanted or needed and to go back where they came
from and stop annoying us, but of course this I am not
supposed to suggest We are dealing with a situation
where the employer is not supposed to say anything
I wish to repeat, we will continue to give you
increases in wages and benefits in the future We ask in
return from each and every employee, cooperation,
effort and loyalty. Sales are the backbone of this
company. Increased sales mean increased income to
you, and growth of the company I would like to put
this company in a more profitable situation, and I need
your cooperation. Cooperation is mutual, you cooperate
with me and I will cooperate with you and continue to
do so.
Very truly yours,
Walter F Pape
On May 14, 1969, the Respondent sent a second letter
to the employees urging the rejection of the both unions.
The text of this letter is as follows:
Dear Frank,
I would like to thank those of you who have
responded to my last letter and let me know that you
are supporting your Company 100% in its efforts to
keep it non-union
My door is always open affording you the
opportunity to make known your intent, progress is a
must and it can best be attained by joining with me and
moving forward together
This was a fine company to work for before the
unions began upsetting you men and disrupting our
business You and I are going to make it a fine
company again by knocking these unions right out of
here
This company has given to its employees a list of
fringe benefits as long as your arm without a union and
will continue to do so in the future providing we still
have no union
Our sales and customer service has suffered greatly
within the past seven months, and as you know, these
are the most important elements of our business. Let us
tend to our business and let the unions tend to theirs.
How many sales have the unions contributed to our
company? How much have they put in your pocket?
The answer is nothing in each case, in fact they have
done nothing but cause dissension.
Look around and see what they have done to
business - to small companies as well as large ones.
Read a newspaper and see how many companies have
been put out of business by unions Read a newspaper'
Not long ago there were a choice of at least seven
newspapers, now your choice is down to a few; the
others had to go out of business, why9 One word,
UNION!
They won't build our business only we can do that,
but they can destroy it
You know my feelings, and I look to each of you to
support me now as you have in the past
' This finding is based on the credited testimony of McMullan Pape
denied having any conversation with McMullan or any other employees
about granting pay raises if they would disassociate themselves from Local
719 The making of such an offer is consistent with Pape 's other conduct
discussed below, including the granting of wage increases and the sending
of letters to the employees containing both promises of benefits and threats
or reprisals depending on their decision with respect to union
representation Under all the circumstances , I do not credit Pape's denial
B. The Illegality of the Respondent's Conduct
1. The Respondent ' s implied promise of a benefit to
McMullan
In my opinion , Pape's asking McMullan whether he
would disassociate himself from Local 719 if he were
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given a raise constituted an implied promise of a benefit if
he withdrew from the union . Such promises are well
recognized forms of interference, restraint and coercion in
violation of Section 8(a)(1) of the Act. N.L R B v
Flomatic Corporation, 347 F.2d 74, 76-77 (C A. 2);
NLRB. v. Pyne Molding Corp, 226 F.2d 818, 820
(C. A. 2).
2. The promise of benefits and threat of reprisals in
the Respondent's letters of May 7 and 14
In his letter of May 7, to the employees, Pape
suggested that the employees "tell both of these unions
that they are not wanted or needed," reminded them of
the past benefits accorded the employees without the
intervention of any unions, and intimated that further
increases in wages and benefits would be forthcoming if
the employees renounced both unions. In addition, Pape
bluntly threatened to stop paying sick benefits "should
either union win an election." Pape's threat and thinly
veiled promise of further benefits clearly constituted
unlawful interference, restraint and coercion in violation
of Section 8(a)(l) of the Act.
The Respondent exceeded permissible bounds in its
letter of May 14 also. As found above, the Respondent
included in this letter the following statement:
This company has given to its employees a list of fringe
benefits as long as your arm without a union and will
continue to do in the future providing we still have no
union
The tone of the Respondent's letter as a whole was
strongly antiunion. Thus, the Respondent made a frank
appeal to the employees to "knock . . these unions right
out of here " It pointed out that the unions had
contributed nothing to the employees' pocketbooks and
implied that only the Respondent could do that. In the
letter the Respondent also attributed the closing of many
businesses, both large and small, to the activities of
unions.
In my opinion, viewing the Respondent's statement
above quoted in the context in which it appeared, it could
reasonably be construed by the employees as a threat to
discontinue fringe benefits if the employees chose union
representation and therefore was violative of Section
8(a)(1) of the Act. Cf. N L.R B v Exchange Parts Co ,
375 U S 405, 407-410.
3. The Respondent's grant of a plant-wide wage
increase
As found above, on April 14, 1969, dust a few days
before the hearing was scheduled to begin in the
representation case, the Respondent announced to the
route salesmen that it was granting what was in effect a
substantial increase in their weekly guaranteed wage
Thereafter, wage increases were granted to the remaining
employees which the unions were seeking to represent.
These increases were not granted as part of any regular
program for raising the employees' compensation. As
found above, the last general increase in compensation
was given in about 1966.
The timing of the granting of the wage increases, a few
days before the hearing in the representation proceeding,
which Pape might reasonably anticipate would culminate
in a direction of election, suggests that this action was
taken by the Respondent with a view to influencing the
employees' vote in the election. Further support for this
conclusion is found in Pape's query of McMullan a few
days earlier whether he would disassociate himself from
Local 719 if he were granted a raise Further light on
Pape's motives is cast by Pape's reminder in his letter to
the employees dated May 7 that they had recently been
given wage increases without their "having to pay
initiation fees or dues to any union " By this statement, in
my opinion , Pape made explicit what he had hoped would
be implicit in granting the wage increases a month earlier.
Pape's letters of May 7 and 14, containing as they do
threats of reprisals and promises of benefits depending
upon the employees ' decision regarding union
representation , reflect what in my opinion has been Pape's
attitude since the outset of the organizing activities,
namely, one of uncompromising opposition to having any
union in the plant Under all the circumstances I conclude
Pape granted the wage increases when he did for the
purpose of inducing the employees to vote against any
union in the election which he believed would be scheduled
in the near future . By such conduct the Respondent
interfered with , restrained and coerced its employees in
violation of Section 8(a)(1) of the Act. See N L R B v.
Exchange Parts Co , 375 U S 405, 409-4 10 ; N L R B v.
Pyne Molding Corp , 226 F. 2d 818, 820-821 (C.A. 2);
N L.R B v Flomatic Corporation , 347 F.2d 74, 76-77
(C. A. 2).
CONCLUSIONS OF LAW
1. By making veiled promises of benefits and by
granting wage increases to employees as an inducement to
them to reject union representation, and by threatening
employees that they would suffer the loss of benefits if
they continued their union affiliation and activities, the
Respondent has interfered with, restrained and coerced
employees in the exercise of their rights under Section 7
of the Act, thereby engaging in unfair labor practices in
violation of Section 8(a)(1) of the Act
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of the
Act, my recommended order will provide that the
Respondent cease and desist from such conduct and that it
take certain affirmative action found necessary to
effectuate the policies of the Act
Upon the foregoing findings and conclusions and the
entire record , and pursuant to Section 10(c) of the Act,
there is hereby issued the following:
RECOMMENDED ORDER
The Respondent, Walter Pape, Inc., New York, New
York, its officers, agents, successors, and assigns, shall
I Cease and desist from:
(a) Making promises of benefits and threats of reprisals
against employees to induce them to reject union
representation.
(b) Granting wage increases to employees for the
purpose of inducing them to reject union representation;
provided however that the Respondent is not required to
revoke any wage increase which it has granted.
(c) In any other manner interfering with, restraining or
coercing its employees in the exercise of the rights
WALTER PAPE, INC.
guaranteed in Section 7 of the Act.
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Post at its New York, New York, plant copies of
the attached notice marked "Appendix."2 Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by an authorized
representative, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 29, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
'In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board ' s Order is enforced by a judgment of a United States Court
of Appeals , the words in the notice reading "Posted by order of the
National Labor Relations Board " shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
813
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT make promises of benefits or threaten
our employees with loss of benefits or other harm in
order to induce them to reject union representation.
WE WILL NOT grant wage increases or other benefits
to employees in order to persuade them to reject union
representation . However, we are not required to revoke
any wage increases or benefits previously granted
WE WILL NOT in any manner interfere with , restrain
or coerce our employees in the exercise of their rights
to join or not to join any labor union , or to participate
in union activities.
Dated By
WALTER PAPE, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliaiice
with its provisions, may be directed to the Board's Office,
16 Court Street, Fourth Floor, Brooklyn, New York
11201, Telephone 212-597-3535