Arkansas Grain Corp.

ARKANSAS GRAIN CORPORATION 111 Arkansas Grain Corporation and International Union of United Brewery, Flour , Cereal, Soft Drink and Distillery Workers of America, AFL-CIO. Cases 26-CA-2518 and 26-CA- 2596 June 28,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On April 21, 1967, Trial Examiner John H. Eadie issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial-Examiner's Decision. The Trial Ex- aminer also found that the Respondent had not en- gaged in other unfair labor practices alleged in the complaint. Thereafter, the General Counsel filed exceptions to the Decision together with a support- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent con- sistent herewith. The complaint alleged that Respondent indepen- dently violated Section 8(a)(1) by committing vari- ous acts of interference, restraint, and coercion, and that it violated Section 8(a)(3) and (1) by dis- criminatorily harassing an employee because of his union activities. The Trial Examiner found a single independent 8(a)(1) violation, based upon Respond- ent's having threatened employees with discharge because of their union activities. We agree with and adopt this finding, to which no exception is taken. However, the Trial Examiner found that the allega- tions that Respondent violated the Act in other respects were not substantiated by the record. Con- trary to the Trial Examiner, and in accordance with the exceptions of the General Counsel, we find that Respondent engaged in additional unfair labor prac- tices as set forth below: 1. Interference, restraint, and coercion a. The August 121 conversation between Respond- ent Manager Higginbotham and employee Irwin On August 12, 1966, shortly after Higginbotham had learned that employee Irwin had solicited a fel- low employee to sign a union card, Higginbotham told Irwin, "Now, Thomas, don't get yourself in trouble by passing out cards out there." The Trial Examiner found that, in effect, Higginbotham had merely warned Irwin that the distribution of cards in the plant during working time was against Respondent's policy. We find nothing in the record, however, which supports the Trial Examiner's con- clusion that the prohibition against solicitation was limited to working time. Accordingly, since Higgin- botham's warning, reasonably construed, would restrain solicitation by employees on nonworking time as well as on working time, we find that Respondent thereby violated Section 8(a)(1) of the Act.2 b. The August 12 conversation between Higgin- botham and employee Bunker Shortly after having spoken with Irwin, Higgin- botham had a conversation with Bunker. During this conversation Higginbotham asked Bunker why he was dissatisfied and what he was trying to ac- complish by engaging in union activities. Higgin- botham also warned Bunker, "Billy, if we get a union in here we'll have a set of rules to go by and I'll guarantee you we'll go by them. If it say two ten-minute breaks, that's what you'll get, and what- ever else the rules are." The Trial Examiner, rely- ing on Bunker's admission that the policy on breaks had been changed before the employees had en- gaged in any union activity, found that this state- ment did not constitute an unlawful threat of reprisal. However, since it is apparent that Higgin- botham's statement was not limited merely to the Company's policy on breaks and would ordinarily be understood as a threat of imposition of generally more stringent working conditions, we find that Respondent, in this regard, violated Section 8(a)(1) of the Act. In addition we find that Respondent further violated Section 8(a)(1) by the interrogation of Bunker concerning his union activities. c. The August 13 conversation between Plant Su- perintendent McDonald and employee Bunker During the August 13 conversation between Mc- Donald and Bunker, McDonald made threats of discharge which the Trial Examiner found to have violated Section 8(a)(1). During this same conver- sation, McDonald stated, "[W]e aren't going to sign a contract. There's a million ways we can get around signing a contract, being as small organiza- I All dates refer to 1966 unless otherwise indicated. ' See Finesilver Manufacturing Company, 160 NLRB 1400, 1403. 166 NLRB No. 18 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion as it is." In accordance with settled Board pol- icy, we find this statement to have been an advance announcement that Respondent had no intention of negotiating in good faith or entering into a collective-bargaining agreement even if the Union were to be designated by a majority, and, as such, was violative of Section 8(a)(1).3 2. Discrimination The complaint alleges that Respondent violated Section 8(a)(3) and (1) by discriminatorily harassing employee Edwards with reprimands because of his union activity. The record shows that Edwards and Bunker were the two principal union organizers. McDonald's knowledge of and opposition to Edwards' union ac- tivities were demonstrated during the August 13 conversation between McDonald and Bunker, when McDonald took a union card from his pocket and said, "[Edwards has] lost his job and this could very well lose a lot of other people's jobs.... I don't see what's the reason you boys want a union in here." Although Edwards had not, in fact, been discharged, he received two warnings, which are the subject of the instant allegation, during a con- versation with McDonald on November 13. This conversation arose out of an incident involving a strainer, an item important for the plant's operation, which had been left out of place by one of Edwards' fellow employees. Because Edwards had worked the last shift before the strainer was discovered to have been left out of place, McDonald suspected that Edwards was responsible. McDonald at- tempted to verify his suspicion by asKing Edwards' foreman whether Edwards had left the strainer out. The foreman indicated that he did not know who had left it out, but despite their uncertainty, Mc- Donald noted in the logbook, "Nathan Edwards left a strainer out of the miscella line and there is no ex- cuse for this." Edwards, understandably annoyed, told his foreman that he had not left the strainer out, made a request that the logbook notation be cor- rected, and, when said request had gone unheeded, made his own notation in the logbook, "Investiga- tion before accusation, please." Rather than cor- recting his mistaken accusation of Edwards, Mc- Donald instead reprimanded Edwards for showing a lack of respect for management, indicating that this was his second warning. Edwards, never having received an earlier warning, sought explanation as to the first. McDonald responded by referring to an incident which had occurred 3 months earlier, rebuking Edwards for having taken a day off prior to ' his vacation without permission from the office. What had occurred, in actuality, was that Edwards had obtained permission to find a replacement to work the second half of his shift, and that his foreman had told him that he could take personal time off as long as he found someone to work his shift for him. Later that day Edwards decided to ob- tain a replacement for the first half of his shift as well, and he did so. Although Edwards did not seek management approval, his replacement, before Ed- wards' shift was to begin, did notify his foreman who agreed to the arrangement. The foregoing amply establishes that the warnings given Edwards were thinly premised and were issued under conditions suggesting Respond- ent's disposition to retaliate against a known union protagonist. Thus, it does not appear that either warning was preceded by effective investigation of the misconduct imputed to Edwards. Concerning the earlier warning, such investigation would have disclosed that Edwards or his substitute had received advance permission from the foreman be- fore Edwards was scheduled to work on August 12. Also significant is the absence of any reference to this incident by any management official until 3 months later. Concerning the strainer incident, reasonable investigation would have disclosed that Edwards was not responsible and that the notation in the logbook was false. Indeed, when Edwards called this fact to the attention of management, no correction was made, thereby provoking Edwards to make the above-described notation on the log- book himself. In our opinion the dubious nature of the warnings and the questionable circumstances under which they were issued, when considered in the light of Respondent's opposition to employee organization and its knowledge of Edwards' role as a union adherent, adequately establish that the warnings were issued as part of a campaign of harassment against Edwards because of his union activities. For these reasons, we find, contrary to the Trial Examiner, that Respondent violated Sec- tion 8(a)(3) and (1) of the Act by issuing warnings to Edwards which could be used to support a future discharge. THE REMEDY Having found that Respondent engaged in unfair labor practices in addition to those found by the Trial Examiner, we shall order Respondent to cease and desist therefrom. We shall also remedy the dis- criminatory harassment of employee Edwards by ordering the Respondent to remove or strike any notation of the warnings found to have been dis- criminatorily given to Edwards, so that such warnings may not be considered as factors giving rise to future disciplinary action against him. 3 See, e g., Whitfield Pickle Co., 151 NLRB 430,436. ARKANSAS GRAIN CORPORATION 113 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respon- dent, Arkansas Grain Corporation, Helena, Arkan- sas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge because of their membership in or activities on be- half of the Union. (b) Threatening employees with the implementa- tion of more stringent working conditions in the event that they choose to be represented by a labor organization. (c) Declaring the futility of collective bargaining. (d) Interrogating employees concerning their union activities, in a manner constituting inter- ference, restraint, or coercion, within the meaning of Section 8(a)(1). (e) Threatening employees with discipline in the event that they engage in union solicitation, without specifying that such solicitation is forbidden only during working hours. (f) Discouraging union activity by discrimina- torily harassing employees with reprimands and warnings which could lead to their discharge. (g) In any like or related manner interfering with, restraining, or coercing its employees in the exer- cise of their right to self-organization, to form labor organizations, to join or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which we find will effectuate the policies of the Act: (a) Remove or strike any notation of the warnings found to have been discriminatorily given to employee Edwards, so that such warnings may not be considered as factors giving rise to any future disciplinary action against Edwards. (b) Post at its plant in Helena, Arkansas, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by the Respondent or its authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. 4 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT threaten our employees with discharge because of their membership in or activities on behalf of International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO. WE WILL NOT threaten imposition of more stringent working conditions in the event that our employees choose to be represented by a labor organization. WE WILL NOT oppose collective bargaining by announcing that we will refuse to sign a con- tract with a labor organization chosen by our employees to represent them for purposes of collective bargaining. WE WILL NOT interrogate our employees concerning their union activity. WE WILL NOT prohibit solicitation during nonworking hours. WE WILL NOT harass our employees by dis- criminatorily giving them warnings and repri- mands. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-or- ganization, to form labor organizations, to join or assist any labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization. ARKANSAS GRAIN COR- PORATION (Employer) Dated By - (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN H. EADIE, Trial Examiner: This proceeding was held before me in Helena, Arkansas, on December 8, 1966, on the consolidated complaint of the General Counsel and the answer of Arkansas Grain Corporation, herein called the Respondent.' The issue litigated was whether the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. After the conclusion of the hearing, the Respondent filed a brief with the Trial Examiner. Upon the entire record in the case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is an Arkansas corporation with a place of business located at Helena, Arkansas, where it is engaged in the processing and sale of grain. During the period of 12 months preceding the date of the complaint herein the Respondent purchased and received at its Helena plant, directly from points outside the State of Arkansas, goods and products valued in ex- cess of $50,000. During the same period of time the Respondent processed, sold, and shipped goods and products valued in excess of $50,000 from its Helena plant directly to points outside the State of Arkansas. The consolidated complaint alleges, the Respondent's answer admits, and the Trial Examiner finds that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, herein called the Union, is a labor organiza- tion which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES Shortly after August 1, 1966, employees Billy Bunker and Nathan Edwards met with a representative of the Union. Thereafter, Bunker distributed union cards to em- ployees. Employee Thomas Irwin solicited employee Robert Raymond to sign one of these cards in the plant during working hours. Raymond reported the incident to his foreman, Charles Warhurst, and gave him the card. Warhurst, in turn, gave the union card to Frank Mc- Donald, the plant superintendent. On August 12, Irwin had a conversation with William Higginbotham, the Respondent's manager, when he went ' The charge in Case 26-CA-2518 was filed on August 16, 1966. Charges in Case 26-CA-2596 were filed on November 7 and 14 and December 1, 1966 The consolidated complaint issued on December 1, 1966. to the office in order to get his check. Higginbotham told him, "Now, Thomas, don't get yourself in trouble by passing out cards out there." Irwin replied, "Mr. Higgin- botham, somebody just gave me a card to give to [Raymond], and I did."2 Shortly after this conversation, Higginbotham spoke to Bunker when the latter went to the office to get his check. He told Bunker that he was "disappointed" in him. When Bunker asked him what he meant, Higginbotham replied, "you know what I mean. Just don't get yourself in trouble about passing union cards on the job." Bunker denied that he had distributed cards "on the job." Higginbotham then asked him why he was dissatisfied and what he was trying to accomplish. Bunker complained that he was not making as much money as some other employees. Higginbotham said, "Billy, if we get a union in here we'll have a set of rules to go by and I'll guarantee you will go by them. If it says two ten-minute breaks, that's what you'll get, and whatever else the rules are." He then directed Bunker to return to work as he already had had his break for that morning. Both Higginbotham and Bunker gave substantially the same testimony concerning their conversation. Bunker admitted that Higginbotham specified' distribution of cards in the plant during working hours. Bunker also ad- mitted that in early August, and before he had engaged in any union activity, his foreman, George Wheatly, had told him that he was being restricted to two 10-minute breaks a day, and that this was the reason why he became active on behalf of the Union. Higginbotham testified that he made the same state- ment to Irwin as he made to Bunker concerning distribu- tion of cards, but that he did not recall if he specified "work time." He testified, in substance, that he "as- sumed" that Bunker was the one who gave the card to Irwin because he believed Bunker had supported another union during 1965. Higginbotham admitted that the Respondent did not have any written rule covering so- licitation or distribution of cards. He testified, "We just never have allowed it." I do not believe or find that Higginbotham's statements to Irwin and Bunker were violative of the Act. Higgin- botham had reliable information that Irwin had dis- tributed a union card in the plant during working time. After his conversation with Irwin, he suspected that Bunker also was involved. In effect he warned both Irwin and Bunker that distribution of cards in the plant during working time was against the Respondent's policy. Under the circumstances I do not find that he was attempting to create the impression of surveillance of their union activi- ties as charged in the complaint. The General Counsel also contends that Higginbotham's statement concerning breaks constituted an illegal threat of reprisal. In view of Bunker's admission that the policy on breaks had been changed before the employees had engaged in any union activity, I do not so find. Edwards was scheduled to work on August 12 from 3 to 11 p.m. He received permission from his foreman, Bob Wendisch, to have employee Edward Morrow substitute for him for the last 4 hours of the shift. About 2:30 p.m. on August 12 Edwards called Bunker and asked him to take the first part of the shift. Bunker agreed. About 2:45 p.m. Bunker told Wendisch that Edwards had called and asked him to substitute for him for the first 4 hours, Wen- disch agreed to the arrangement. About 3:30 p.m., while 2 Higginbotham testified to the above conversation. Irwin did not ap- pear as a witness at the hearing. ARKANSAS GRAIN CORPORATION 115 Bunker was working, McDonald called over the intercom and asked for Edwards. Bunker told him that Edwards had asked him to substitute for him, and that he had agreed. McDonald stated that Edwards had not "got it okayed through the office" and that that was the way that the employees were supposed to get permission to make substitutions.3 Bunker replied that he had notified Wen- disch before 3 p.m. of the change and that Wendisch had told him that it was "all right." About an hour later Mc- Donald went to Bunker's place of work. He told Bunker that he and Edwards might lose their jobs for not getting permission for the substitution through the office. McDonald again came to Bunker's place of work dur- ing the morning of August 13. He stated that Edwards had "lost his job"4 and that it was "sort of pending" that he (Bunker) might also lose his. Bunker replied that he did not understand why he should be discharged "for working over for the boy," and stated, "I wasn't allowed to leave the job -until I was satisfactorily relieved, in the first place." McDonald then took a union card from his pocket and said, "Anyway, he's lost his job and this could very well lose a lot of other people's jobs .... I don't see what's the reason you boys want a union in here, and we aren't going to sign a contract. There's a million ways we can get around signing a contract, being as small organiza- tion as it is .... I think that you boys have a good situa- tion here now. "5 It is clear from McDonald's remarks that he was threatening Bunker and other employees with discharge because of their union activities. Such conduct is found to be violative of Section 8(a)(1) of the Act. Edward Cain, a new employee, was being trained as an extractor operator by Jerry Greene. They worked together on the same shift. On or about November 10 during the first shift, Foreman Stephen Ragsdale had trouble with the strainer on the "miscella line." In order to correct the condition, Ragsdale told Cain to remove the strainer. He neglected to tell Cain to replace it before their shift changed. Morrow was the extractor operator on the next shift and he was followed by Edwards. The following morning it was discovered that the strainer was missing from the line. Since Edwards had been the last operator before the discovery, McDonald presumed that he was responsible and made a notation to this effect in the logbook. When Edwards relieved Morrow that day, Morrow told him that Ragsdale had directed Cain to remove the strainer. Edwards told Wendisch that he had not left out the strainer and that the notation in the log- book should be corrected. Wendisch said that McDonald had spoken to him about the strainer and that he had told McDonald that he (Wendisch) did not know whether or not he (Edwards) was the one who had removed it. Ed- wards then wrote in the logbook above McDonald's nota- tion, "Investigation before accusation, please." On November 13 Edwards was called to McDonald's office. Wendisch was present. Concerning his converses tion with McDonald, Edwards testified without con- tradiction as follows: Mr. McDonald said that what I had wrote on the chart showed disrespect to management. I told him I didn't mean it for disrespect. I merely meant for him to investigate before accusing me of doing something. Of course, we disagreed on it. He said it showed disrespect. . He said this was my second warning and I asked him what the first was, and he said it was for taking a day off prior to vacation without permission from the office. I told him I had permission for the last half of the shift, and he said, "Well, for half a day, then. . One more [warning] and you're gone." Edwards also testified that McDonald asked him whether or not he had checked the strainer when he first came on the shift. McDonald testified to the effect that he gave Edwards a warning because of the strainer, telling him that he knew that he had not left it out but that it still was his job to see that there was one in the line. He also testified to the ef- fect that during the conversation he warned Edwards for the first time about his arranging for a substitute on Au- gust 12. I do not find that the above conduct of McDonald was violative of the Act. McDonald testified that about February 1966 he had posted a notice on the bulletin board in which he stated that "strainers were to be kept in that line all the time," and that after the incident on November 11 he also warned both Ragsdale and Mor- row 6 It appears from the testimony of Edwards himself that he was called to the office because of his note on the logbook, and that the warning about checking the strainer was incidental thereto. It follows that Edwards was not singled out in a special manner for a warning about checking the strainer. Accordingly, I do not believe or find that the Respondent was harassing Edwards by issu- ing reprimands to him because of his union activity, as al- leged in the complaint. 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 Respon- dent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, it will be recommended that it S The undisputed evidence shows that it had been the Respondent's pol- icy for its supervisors, and not the employees involved, to make arrange- ments for substitutes when they wanted time off from work. Higgin- botham testified to the effect that the Respondent had this policy in order to avoid overtime work. 4 The evidence discloses that Edwards was off on vacation at the time of the above conversation and that he was not discharged when he returned to work 5 Bunker testified to the above conversations. McDonald denied saying that Edwards had lost his job and showing a union card to Bunker. He testified that he told Bunker that Edwards could lose his job, and admitted that, at the time of the conversation , he had in his possession the union card which he had obtained from Warhurst. He testified that he discussed the Union with Bunker , telling him that he did not have "any faith" in union negotiators , and that the Respondent had done more for him (Bunker) "than any Union had been able to do prior to that time." I credit the above testimony of Bunker. 6 Morrow admitted that the notice about strainers had been posted for about a year and that on November 11 or 12 McDonald talked to him about checking the strainer. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cease and desist therefrom and that it take certain affir- mative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing its em- ployees 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) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.]