Lo-K Foods, Inc.

956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pompura's concerted activity and interest in union activity generally , there is no direct evidence that Respondent was aware of John's activity on behalf of the Team- sters. Nevertheless, in the light of the record as a whole , such knowledge may be, and is, inferred. Several factors warrant such a finding and two are especially sig- nificant : ( 1) the timing of the discharge and (2 ) the abruptness thereof. As noted above, the discharge took place on the date the organizational meeting on behalf of the Teamsters was to take place and while John , the employee who had made the initial contact with the Teamsters 3 days earlier , was informing employees of the interest of the Teamsters in representing them and of the change in plans for holding the organizational meeting. In addition , John was summarily dismissed at the end of the first day of a pay period-dismissed without warning or explanation on Monday night, April 10, 1961-and the only activity by John Pompura at or about the time of his discharge varying from his normal activity was his activity on behalf of the Teamsters . These facts plus the small number of employees at the plant (40 to 45 of whom 35 were women ) and the small size of the community where John 's activity on behalf of the Teamsters took place warrant not only a finding and conclusion that Respondent was aware of John's Teamsters' activity, but, in the light of the other facts noted in this report, a finding and conclusion that Respondent was motivated by this activity in discharging John Pompura. In the light of the fact that John Pompura was the kingpin for the Teamsters' organizational activities, the sequence of events-especially the timing of the dis- charge in relation to the organizational efforts, the failure of Respondent 's conten- tions to stand up under close examination , and Respondent's resentment of concerted and/or union activity, I am not convinced that Respondent's contentions are anything more than pretexts to conceal the real reason-antiunion motivation. CONCLUSIONS OF LAw In summary, I find and conclude: 1. The evidence adduced in this proceeding satisfies the Board 's requirements for the assertion of jurisdiction herein. 2: Teamsters, Chauffeurs and Helpers Local Union, No. 491, and United Mine Workers of America, District 50, are labor organizations within the meaning of Section 2 (5) of the Act. 3. The evidence adduced establishes that Respondent discriminatorily discharged and/or laid off John Jerome Pompura and thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. [Recommendations omitted from publication.] Lo-K Foods, Inc. and Dairy Employees Union, Local 754, Inter- national Brotherhood of Teamsters, Chauffeurs , Warehouse- men and Helpers of America . Case No. 13-CA-4199. Decem- ber 5, 1961 DECISION AND ORDER On August 31, 1961, Trial Examiner C. W. Whittemore issued his Intermediate Report herein, finding that the Respondent had not en- gaged in the unfair labor practices alleged in the complaint and recom- mending that the complaint herein be dismissed, as set forth in the In- termediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. 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 [Members Leedom, Fanning, and Brown]. 134 NLRB No. 107. LO-K FOODS, INC. 957 The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. While adopting the Intermediate Report, we note that circumstances attending the Respondent's termination of the alleged discriminatees give rise to a suspicion of discriminatory motivation therefor. How- ever, suspicion is not sufficient basis on which to predicate an unfair labor practice finding. As found by the Trial Examiner, the record evidence does not preponderate in favor of such a finding and we must therefore dismiss the complaint in its entirety. [The Board dismissed the complaint.] INTERMEDIATE REPORT STATEMENT OF THE CASE Charges in the above-entitled case having been issued and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named Respondent , a hearing involving allegations of unfair labor practices in violation of Section 8(a)(1) and ( 3) of the National Labor Relations Act, as amended, was held in Sterling, Illinois, on July 25 and 26, 1961 , before the duly designated Trial Examiner. General Counsel and the Respondent were represented at the hearing, and were afforded full opportunity to present evidence pertinent to the issues , to argue orally, and to file briets . Briets have been received from both parties. Disposition of the Respondent 's motion to dismiss the complaint, upon which ruling was reserved at the hearing , is made by the following findings, conclusions, and recommendations. Upon the record thus made, and from his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Lo-K Foods , Inc., is an Illinois corporation , with principal office in Chicago, Illinois, and place of business in Sterling, Illinois, at which latter place it is engaged in the manufacture and processing of butter and other dairy products. From November 1960 to July 1961 , the Respondent purchased and had shipped to its Sterling plant from points outside the State of Illinois materials valued at more than $50,000. The Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Union is a labor organization admitting to membership employees of the Respondent. 111. THE ALLEGED UNFAIR LABOR PRACTICES ° A. Setting and major issues In September 1960, the Respondent leased a Sterling plant previously operated by another milk-processing concern but which had been closed and idle for more than 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 years. Ray Lokay, an officer and apparent manager, described the condition of the plant and its equipment at the time of lease as "just a general mess." During the month of leasing four employees were hired, and by early 1961 eight em- ployees were on the payroll. During the first few months the work of such employees was varied, consisting chiefly of cleaning up, repairing, moving, and getting new and old machinery in shape for operation. All such employees hired were informed by Lokay that their employment would be temporary or on a part-time basis. In February and March 1961, about a dozen more employees were hired and production was begun. Two major products are processed and derived at this plant from milk and cream: abutter and dried milk. Sometime in early February a representative of the Charging Union visited the plant, a fact coming to the attention of Lokay through Foreman Kraft, who told Lokay he himself had been approached by the representative. On February 16 Lokay called together the employees then on the payroll and informed them, in substance, that he opposed their joining a "Chicago" union, and suggested that they consider a "Dixon" local. (The issue as to whether on this occasion Lokay also made unlawful threats is discussed in the following section.) There is no evidence of union activity after early February until April 10, when a meeting was held at an employee's home. The chief issues are whether or not on February 17 the Respondent unlawfully discharged employee Harry Riddle and on April 12 terminated the employment of 13 other employees.' B. Lokay's speech of February 16 There is no dispute in the record that on this date Lokay told his assembled employees that if they wanted to join a union he preferred to deal with a nearby local instead of a "Chicago" union. (The Charging Union, whose representative had visited the plant a few days before this, has its office in Chicago.) Two of General Counsel's witnesses, Hurd and Richmond, quoted Lokay as having made this threat? Two other employees testifying about the speech, Riddle and Yeoward, did not refer to any threat of this nature. And General Counsel himself, on cross-examination, elicited a flat denial from Lokay that he made "any comment . about closing the plant." In the opinion of the Trial Examiner the present state of the record fails to sus- tain, with a preponderance of evidence, General Counsel's allegation that Lokay did, in fact, threaten to close the plant. C. The discharge of Riddle Harold Riddle was one of the first employees hired by Lokay after the plant was taken over. He was employed as a fireman and maintenance man, but a good part of his time was spent doing other tasks required to put the plant in operating order. He was discharged on February 17, the day after Lokay's speech. General Counsel claims that the discharge was unlawfully motivated and for the purpose of discouraging union membership. The record discloses no union activity on Riddle's part. Nor is there any evidence that any other employee was engaging in union activity at this time. The one item of evidence tending to support an inference that Lokay had reason to believe that Riddle would support a union, if and when organization began, is found in the employee's undisputed testimony that during the discussion of unions the day before his discharge he had told Lokay: "We would like to have a union in here so we can get higher wages." According to his testimony, also, Lokay's reply was: "He said he didn't want anything to do with the Chicago union whatever, in; his plant. That he had trouble with them and he didn't want any more to do with them. We could try the other union if we wanted to." 1 These 13 are: Leo Harrington, Jane Richmond (Fisher), Donald Hurd, Wayne Bollman, Bonnie Weeks, Ely Miner, Jack Hippen, John Clary, David IIippen, Ted Penhollow, Charles Koehler, Frank Yeoward, and Joyce Knelsen. 2 Hurd testified: "(Lokay) said if we would go for a union, the Chicago union . . he would close the doors." Richmond claimed that Lokay said: "He would close the doors before he would allow them in " LO-K FOODS, INC. 959 Also according to Riddle's testimony Lokay discharged him after criticizing him for the way he had run a wiring conduit from one room to another. He quoted Lokay as saying: "Harry . with this and other things . . I guess I'll have to let you go." He replied: ". . . if you feel that way, well, I guess that's all right with me." Thus there is in Riddle's own account no direct evidence that Lokay discharged him for expressing himself as in favor of a union, or that Lokay said anything when firing him to create that impression. On the other hand, reasonable factual support for Lokay's contention that Riddle was discharged because of "improper firing, taking care of our boiler and not per- forming his job as he was expected to," is found not only in the employee's testi- mony but also in that of Norval Mitchell, manager of a local machine shop, who- so far as the record reveals-was a disinterested witness. Riddle admitted that on one occasion he permitted the water to get low in the boiler , causing a safety-plug to melt. He admitted that "maybe (on) one or two occasions" water pipes had to be replaced because of the "manner" in which he controlled the flow of hot water to butter-making units. And Mitchell told credibly of replacing space bars and grates because of the improper firing of the boiler, as well as replacing a "plug" shortly before the employee's discharge. The reasons advanced by Lokay for his action, having ample foundation in fact, are not so unreasonable as to occasion disbelief. In short, the Trial Examiner is of the opinion that General Counsel has failed to sustain his burden of proof regarding his allegation that Riddle was unlawfully discharged to discourage union activity. D. The dismissals of April 12 On Monday night, April 10, 9 or 10 employees met at the home of Donald Hurd. A representative of the Charging Union was present. Some of the employees signed union cards. Credible testimony establishes, and the Trial Examiner finds, that all but 2 of the 13 employees listed in footnote 1, above, signed cards that night or before April 12. The two exceptions are John Clary and Ely Miner, neither of whom was called as a witness at the hearing. In the early afternoon of April 12 Supervisor Kraft told employees that "due to financial conditions" there would be a general layoff at the close of the shift. Ten of the employees listed in the footnote cited were in fact dismissed later that day and either were not recalled until later or not at all. The exceptions were Yeoward, Knelsen, and Penhollow, each of whom testified that his or her layoff was rescinded before it became effective. It is General Counsel's contention that this general layoff, affecting more than half of the number of employees then on the payroll, was to discourage union mem- bership and activity. The Trial Examiner is unable to find in the record any substantial evidence tending to support a finding, essential if General Counsel's position is to be sus- tained, that before the layoff action was announced either Lokay or Kraft had any knowledge or suspicion that a union meeting had been held or that any such ac- tivity was being engaged in. Many of the employees testified that they had not made known any such activity on their part. Thus General Counsel's case must fall for lack of this necessary element of foundation. On the other hand, Lokay's credible testimony, unchallenged on cross-examination on this point, is to the effect that his sudden decision to reduce his working force was prompted by the fact that that morning, April 12, he received notification that his application for a financial loan had been turned down. He further testified, credibly, that because of this he decided to make immediately effective certain recommendations for reduction previously submitted to him by John Ernster, a dairy manufacturing specialist, who for some weeks had been making studies of the operations at the new plant. Lokay's testimony on this point was corroborated by Ernster. In short, the Trial Examiner concludes and finds that the preponderance of evidence in the record fails to sustain the allegations of the complaint as to the layoffs of April 12. [Recommendations omitted from publication.]