Cargill, Inc.

NUTRENA MILLS 183 Nutrena Mills, Division of Cargill , Incorporated and General Drivers, Dairy Employees and Helpers Union Local No. 579, affiliated with the Interna. tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 30-CA-530 June 24, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On December 19, 1967, Trial Examiner Milton Janus issued his Decision in the above -entitled proceeding, finding that the Respondent had not engaged in any unfair labor practices as alleged in the complaint and recommending that the com- plaint be dismissed in its entirety , as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed ex- ceptions to the Decision and supporting briefs. The Respondent filed an answering 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 briefs, and the entire record in the case, and hereby adopts the findings , conclusions ,I and recommenda- tions of the Trial Examiner. ORDER ursuant to Section 10(c) of the National Labor Rt tions Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be , and it hereby is, dismissed in its entirety. In adopting the Trial Examiner 's conclusion that Respondent did not violate Section 8(a)( I) by stating to its employees that "bargaining starts from scratch ," we also rely upon our reasoning and decision in Wagner In- dustrial Products Company, Inc., 170 NLRB 1413. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MILTON JANUS, Trial Examiner : A hearing in this proceeding was held before me on August 9 and 10, 1967, at Janesville , Wisconsin, on a complaint issued by the General Counsel against Nutrena Mills, Division of Cargill, Incorporated. The charge was filed on February 24, 1967, and the complaint issued on June 23, 1967. It alleged that the Respon- dent had violated Section 8(a)(1) by threatening certain employees, and Section 8(a)(3) by refusing to permit three named employees to rescind their previously submitted resignations and by refusing to rehire them, because of their support of the Charg- ing Union. The Respondent's answer denied the commission of any unfair labor practices. Briefs were filed after the close of the hearing by the General Counsel, Respondent, and Charging Union. Upon the entire record, and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Nutrena Mills, a division of Cargill Incorporated, maintains its principal office at Minneapolis, Min- nesota. It is engaged in the manufacture and dis- tribution of animal feed. It has many installations and plants throughout the country, among which is the plant at Janesville, Wisconsin, where the al- leged unfair labor practices occurred. During the past calendar year, Respondent sold and shipped products in interstate commerce valued in excess of $50,000. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED General Drivers, Dairy Employees and Helpers Union Local No. 579, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Facts The Company began operating its newly acquired feed mill at Janesville, Wisconsin, in November 1966. Feed is mixed at the mill according to various formulas and is then packed, either loose or in the form of pellets, for sale and delivery to dealers and to large agricultural producers. During the period involved here, from November 1966 to February 1967, there were 12 or 13 manual employees, con- sisting of those who worked in the mill unloading, mixing, packaging, etc., and the truckdrivers, four in number , who made daily deliveries to customers in the area served by the plant. The truckdrivers were Douglas Clark, William Stockton, and two brothers, Thomas and Richard Ceslok. Clark, Stockton, and Tom Ceslok are the 172 NLRB No. 24 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three individuals who, it is alleged , were treated dis- criminatorily in February 1967. They had been hired in November or December , had completed their probationary period by mid-February, and each had received the customary 10 cents per hour raise thereafter. In January , interest in union representation manifested itself at the plant , and Clark volun- teered to obtain information about it . He then signed up a number of employees in Local 579 Teamsters, including Stockton and Tom Ceslok, who also helped him in contacting other employees. Based on these authorization cards, the Union filed a petition for representation on January 24. Thereafter, the Company agreed to a consent elec- tion to be conducted on March 7 . The Union withdrew its petition after the filing of the charge herein, and the scheduled election was never held. Cargill's manager for plant employee relations, headquartered at its main office in Minneapolis, is Edward Winter.' He came to Janesville on Februa- ry 14, to speak to the employees about the Com- pany's benefits program, which had already been publicized in the form of an employees ' handbook, referred to at the hearing as the yellow book. It is apparent that an incidental benefit which manage- ment hoped to gain from Winter 's visit was a chance to present the Company's views on union representation . Helbig, the manager of the Janesville plant , arranged two meetings for the em- ployees-the first on Tuesday afternoon, February 14, for the operators and warehousemen employed on the day and night shifts inside the plant , and the second , early in the morning of the next day, for the truckdrivers. I note that Winter 's prepared presentation of the existing benefits program contained no generalized attack on unions and conceded the right of em- ployees to self-organization . Nothing that Winter said in his prepared talk is alleged to have been in violation of Section 8(a)( 1). It is only in their spon- taneous answers or comments to employee state- ments or questions that Helbig or Winter are al- leged to have overstepped the bounds of permissi- ble fair comment. After the early morning meeting on Wednesday, February 15, Clark, Stockton , and Tom Ceslok told Helbig that they were dissatisfied and were quitting effective at the close of the regular workweek, Friday , February 17. After resigning in haste, they reconsidered at leisure , and each of them decided, before or during the weekend , that he preferred to continue working for the Company . They spoke to Helbig separately about returning, and Helbig told each of them that the home office had already been advised of their resignations , and that he would have to let them know on Monday whether he would take them back . On Monday , he told them that he would not take them back. B. The Alleged Independent Violations of Section 8(a)(1) The complaint , as amplified by specific testimony at the hearing, alleged violations of Section 8(a)(I ): (1) by Helbig 's threat to Stockton on or about January 24, that he would be less lenient with him if the Union got in; (2) by statements of Helbig or Winter at the two employee meetings that the employees would suffer a loss of benefits , and that negotiations would start at the beginning (ex- pressed in various ways ) if the Union got in; and (3) by Foreman Van Blaricom threatening Stockton , after he had quit , that he would not be rehired because of his support of the Union. 1. A few days after Helbig learned that the Union had filed a petition for an election , he spoke to Stockton as the latter was gassing up his truck before starting the day's run. Helbig's remarks on this occasion are the basis for an allegation that he threatened an employee that he would be less lenient with him if the Union got in. Stockton was then within his 60-day probationary period, and had already been late for work 18 times, including 4 times in the last week when his tardiness ranged from 4 minutes to 1 hour and 40 minutes . There was not a single week up till then in which he had not been late at least once . Other em- ployees were also tardy, but Stockton 's record was generally the worst in the plant . ( Resp. Exh. 8). Stockton 's testimony on his conversation with Helbig is as follows: I was just gassing my truck up and Mr . Helbig come up and said that he wanted to talk to me, he wasn 't trying to get me mad or threaten me about anything but he just wanted to talk to me for a couple of minutes. He said they knew about the union business on account of he'd received paperwork on it and it had been sent to the wrong place , that it was sent to him and it shouldn't have been and he 'd already for- warded it on. So, then he said , we got to talk- ing there for couple of minutes and he said he felt they was pretty lenient down there espe- cially, for instance , me, I'd been late 14 times and I agreed to this and he said maybe we've been too lenient . I said this could be, this was his business. So, believe , as far as I can recall, then he said that if we wanted a union in there that would be all right with him , he wouldn't fight it, but if the union did come in there'd be contracts made up and everything like this and that everything would be set up just according to contracts and that 's just exactly how we'd ' Cargill has 240 installations throughout the country , of which more than 100 employ personnel represented by bargaining agents . It is Winter's responsibility to help set up benefits packages for those installations where there is no union representation , and to put out explanatory material for those employees. Bargaining at union-represented plants is handled by the director of labor relations, Gilbert Bakeberg Respondent's counsel stated on the record that this was the first unfair labor practice complaint ever is- sued against Cargill NUTRENA MILLS work there and that we would more or less just become numbers on a time card . I said I real- ized there wouldn 't be no 15 or 20 minute cof- fee breaks like there had been in the past by quite a few employees there and he stated this was right . That was basically it. There wasn't no browbeating or anything like that, we just talked about it for a couple of minutes and then he said , that was all. I finished with my truck and then he went back inside. Helbig's testimony is substantially the same ex- cept that he says that he told Stockton that if he were late any more he would be replaced . I credit Helbig's recollection on that point . Helbig then went on to say: I don't know how the subject of the Union came up, but I mentioned at that time if the Union did come into our plant it didn't make an awful lot of difference to me one way or the other, but there 'd be a contract and a contract was binding on both sides and I'm sure the contract would not tolerate the tardiness which he had had in the past. Their testimony indicates that the Union , as well as Stockton 's tardiness, was on Helbig's mind. Were Helbig's remarks calculated to impress Stockton that he could continue to come in late if the Union was not successful , but that he would have to toe the mark only if the Union came in? It does not ap- pear so to me . Stockton was still in his probationary period , his tardiness record was bad and Helbig warned him about it. Although he also brought up the Union in the same conversation, even Stockton 's version is that Helbig said that if the em- ployees wanted a union it was all right with him, he wouldn't fight it . Helbig then went on to say in ef- fect that the relationship between employer and employee would be less personal if it were governed by a contract under which the work rules were less flexible . I do not perceive in these re- marks an implicit threat that Stockton or other em- ployees would be treated less leniently than before simply because the Union became their bargaining agent, and I shall therefore recommend dismissal of that allegation of the complaint.2 2. Tuesday afternoon , February 14, Helbig and Winter met with the inside plant employees, and on Wednesday morning , February 15, they met with the four truckdrivers . At these two meetings Winter made a presentation to the assembled employees of the benefits they were presently getting, as set forth in the Company's yellow handbook . His description and explanation of the Company 's benefits were designed to bring to the employees ' attention the Company's position that its benefits program was excellent and had been obtained without union in- tervention . At both meetings there were answers to employee questions by Helbig and Winter which revolve about the theme that in negotiations with a 185 union , bargaining starts "with a clean sheet of paper," "from scratch" or "at the beginning." The Meeting on February 14 Christen and Horton, two warehousemen who worked together on the night shift, testified for the General Counsel on the events of the afternoon meetings . They had discussed the Union between themselves (both had signed authorization cards) and had decided to raise certain matters at the meeting. After Winter finished with his description of the Company's existing benefits program, Christen asked Winter what gaurantee the em- ployees had that the Company would retain the present benefits since it had not signed the yellow handbook. Winter answered that Cargill was a well- established , reputable Company and that it had never reneged on its established benefits. Horton asked what the government made an employer put into a bargaining contract, to which Winter an- swered that it was social security benefits and something else which Horton could not recall. Either Christen or Horton then asked how a con- tract with a union was drawn up , and according to Christen, either Helbig or Winter said they start with a blank piece of paper, from scratch, the parties negotiate and when an agreement is reached it has to be acceptable both to the Company and to the employees and that is your contract. Horton's recollection on this point is that Helbig first said something about starting from scratch, and that Winter joined in quickly and said they began with a clean sheet of paper. Both Christen and Horton recalled some discus- sion as to whether the present benefits would be in- cluded in a contract , and that either Winter or Hel- big emphasized that the matter would have to be settled through negotiations , that there was no guarantee one way or the other on what would eventually be in the contract . Whoever was the Company's spokesman (Christen and Horton did not always agree on who had said what for the Company ) also made an additional point when talk- ing about what benefits had to be included in a con- tract, namely, that the Company also had to benefit from the contract and would try to get as much from it as it could, just as the employees would try to get as much as they could. Winter and Helbig both denied that they had used either the phrase "bargaining from scratch" or "a clean sheet of paper" in the meeting with the warehousemen. I believe that the recollection of Christen and Horton on this point is the more accu- rate . They had come to the meeting primed with questions and would, I think, have attended closely to the answers. Neither had any particular interest of his own to advance in the proceeding . Christen had already quit voluntarily , while Horton, who was 'Nalco Chemical Company , 163 NLRB 68, 71 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD still employed at the plant , testified after hearing Stockton , Clark, and Ceslok, and thus with full awareness that the key phrases were potentially damaging to the Company. The Meeting on February 16 The four truckdrivers attended this early morning meeting . Winter made his benefits program presen- tation and answered most of the questions. At one point in his remarks, Winter said that it had been his experience that one of the reasons employees got interested in a union was dissatisfaction with their supervisors . Stockton then said that everyone liked Helbig , and that the reason for their interest in the Union was their low wages . Tom Ceslok asked if Winter could guarantee the drivers a 40- hour week , and Winter said he couldn 't, since no one could guarantee the Company a high enough sales volume . There was also some discussion about union dues, and what the employees could get by investing the same amount in some other way. Clark testified that Stockton had said that if the Union got in they wouldn 't settle for less than they already had, and that Helbig had responded by say- ing that bargaining would be from scratch . Accord- ing to Clark , Stockton also said that the employees already had the benefits set out in the yellow book, to which Helbig replied that these would be thrown out, and the employees wouldn 't have them. Stockton 's recollection of the meeting is much more limited . He remembered that he had an- swered Winter's remark that one of the reasons em- ployees got interested in a union was dissatisfaction with supervisors , and that he had said it wasn't so with them , it was just a matter of wages . He also re- called Tom Ceslok asking about a guaranteed 40- hour week, and Winter 's answer . That apparently exhausted his recollection . He did not testify that Winter or Helbig had said anything about bargain- ing from scratch or with a clean sheet of paper, or that either of them had said that the employees would lose their present benefits after negotiations began or ended. Tom Ceslok had been in the hearing room when Stockton and Clark testified , and his independent recollection of what had been said then seems to have been affected by what he had heard Clark say. He testified that Helbig had said that when you went union , you had to negotiate a contract and you started from scratch. As was also true of Clark, Ceslok 's statement, received in evidence for im- peachment purposes, does not refer to Helbig or Winter using either disputed phrase . Ceslok testified on direct examination by the General Counsel that Helbig had said the Union couldn't do anything else for them , they already had all that they could get. On cross-examination , Ceslok said that Helbig had said there were two sides to benefits, and if the Union came in, it would have to be negotiated . He did not recall any conversation at that point to the effect that existing benefits would be taken away. The testimony of Helbig and Winter on the February 15 meeting is that Stockton had said at one point that the employees were satisfied with the existing benefits package , and if the Union got in they would go on and talk about wages . Winter (not Helbig ) then said in effect that it might be so, but when you negotiate , you start with a clean sheet of paper, both sides have to agree, and that is what collective bargaining is all about. Winter and Hel- big denied that either of them had said that the ex- isting benefits would be lost if the Union got in. To summarize , Clark and Ceslok testified that Helbig said bargaining would be from scratch if the Union got in, while Helbig and Winter said that it was the latter who had used the phrase "clean sheet of paper" to explain the process of negotiations. I find it unnecessary to decide which of these two phrases was actually used since I consider them practically synonymous. There is also Clark 's testimony that Helbig said that the employees would not have the benefits set out in the yellow book if the Union got in, and the testimony of Ceslok that Helbig said that the Union couldn 't do anything for them-they already had all that they could get . I mistrust their recollections on these points . First, I do not believe that Helbig, the plant manager , would have been so positive on a matter of union bargaining since my impression from his demeanor and his testimony is that he was generally unwilling to take an initiative in what was to him a new and strange area. I do not believe, as a matter of fact , that Helbig said much of anything at the two employee meetings except on questions specifically relating to the practice prevailing at the plant, deferring on all other matters to Winter, the man from the home office . Second, I consider it sig- nificant that Stockton , who did all or most of the talking for the drivers , should have had no recollec- tion of Winter or Helbig threatening the loss of present benefits. Finally, I suspect that Clark and Ceslok have attributed to Helbig statements never actually spoken but which seemed to them to be a rough approximation of the Company 's position that -it would not concede that the existing level of benefits is the floor from which negotiations proceed. There remains for determination the question whether the statement by either of the company representatives that negotiations begin from scratch or with a clean sheet of paper was violative of Sec- tion 8 (a)(1). I have found that at both meetings one of the company representatives, most probably Winter, used the phrase about bargaining from scratch or its equivalent. The contexts in which it was used were slightly different. At the earlier meeting it was in answer to the unsophisticated question of how an employer and a union go about drawing up a contract . Considering the form of the question , the expression "bargaining from scratch" together with the rest of the answer, seems to me a NUTRENA MILLS 187 colloquial expression equivalent to a refusal to pre- dict or guarantee the results of the negotiations. In its actual setting, neither the key phrase nor the full answer strikes me as implying that existing benefits would be withdrawn as a precondition to negotia- tions. At the meeting the next morning , one of the company representatives , most probably Winter, said that bargaining would be from scratch, in an- swering Stockton 's comment that if the Union got in, they wouldn't settle for less than they already had (Clark's version ) or that when you went union, you had to negotiate a contract and you started from scratch (Ceslok 's version ). Mechanically con- strued , the phrase implies that by starting from scratch in negotiating a contract, all present benefits are first eliminated . But to say that that is the only, or the necessary , implication is to disre- gard what employees in like circumstances would reasonably understand the tenor of the exchange to be. Winter would not be understood as saying, it seems to me , that present benefits would first be withdrawn , but only that they would be thrown into the pot with the Union 's proposals and the Com- pany's counterproposals , and that what emerged would have to be satisfactory to both parties. Employees realistically recognize that unions do not come to the bargaining table expecting to settle for the existing level of wages and working condi- tions, and Stockton 's assertion that the employees wanted a higher hourly rate in addition to the exist- ing fringe benefits aptly expressed their view of what negotiations would likely bring . For the Com- pany, however , to accept Stockton 's matter-of-fact claim of what bargaining had to bring would be to expect of it a degree of restraint which borders on self-sacrifice. Stockton was not to be put off by Winter's satisfaction over what the Company was already providing , and Winter in turn sought to tone down his vision of the advantages which must automatically flow from a union contract. I have considered the cases cited by the General Counsel for his contention that the phrase "bar- gaining from scratch" clearly implies that existing benefits will be diminished or discontinued if the employer is forced to negotiate with a union. Some of these cases come close to saying just that, but in many of them the surrounding facts make explicit the coercive impact of the employer 's remarks. Thus, in Famco, Inc., 158 NLRB 111, 115, the em- ployer coupled his remarks about bargaining from scratch with the statement that he would not start with the benefits in the employee handbook, but would proceed as if this were "a brand new com- pany." In Federal Envelope Company, 147 NLRB 1030, 1037-41, the employer stressed the certainty of extended negotiations , and predicted that the employees would wind up with a contract "like no contract they had ever seen ." In Marsh Supermar- kets, Inc., 140 NLRB 899, 901-902, the employer stated that if the union won the election, the em- ployees would lose some of the benefits which they then enjoyed, particularly the existing vaca- tion plan, and it was in that context that he said bargaining would start from scratch. See, also, Howell Refining Company, 163 NLRB 18; Astronau- tics Corporation of America, 164 NLRB 623; Raytheon Company, 160 NLRB 1603; Bauer Weld- ing & Metal Fabricators, Inc., 154 NLRB 954, 962; Winn-Dixie Stores, Inc., 153 NLRB 273, 283. Com- pare Trent Tube Company, 147 NLRB 538. In the present case, the use of the phrase "bar- gaining from scratch" was prompted by a question on the mechanics of negotiating a contract, and by an employee comment which revealed an underly- ing assumption that union representation is con- sistent only with favorable changes in wages , hours, and working conditions . In pointing out, under such circumstances , that a union must also bargain about existing conditions , the Company neither assumed nor implied that negotiations would be futile because its position was already inflexible, or that the employees would necessarily lose all of what they already enjoyed. I also rely for my conclusion that Section 8(a)(1) was not violated by any re- marks about bargaining from scratch, on the absence of accompanying coercive or intimidating remarks on the consequences of union representa- tion . I shall therefore recommend dismissal of this allegation of the complaint. 3. The complaint alleges in effect that Foreman Van Blaricom threatened Stockton with discharge because of his support of the Union, but the only evidence on this matter relates to a conversation between the two which occurred after Stockton had voluntarily quit. Although the complaint could per- haps be interpreted to cover an alleged threat by Van Blaricom that the Company would not rehire or reinstate Stockton for union reasons, the General Counsel's brief does not argue that the evidence on the matter spells out such a violation. It does, however, rely on their conversation of February 19 as proof of the Company's real reason for refusing to rehire or reinstate Stockton. Since the recital and resolution of the two conflicting ver- sions of the conversation bear on the alleged viola- tion of Section 8(a)(3) in refusing to rehire or rein- state all three drivers, I will dispose of it in the fol- lowing section of this Decision. C. The Alleged Violation of Section 8(a)(3) When the meeting of Wednesday, February 15, broke up about 8 a.m., the four drivers went to the breakroom to discuss what had just taken place, in- stead of preparing to start their day's run. Clark, Stockton, and Tom Ceslok were unhappy about the meeting. They suspected that the Company had had some devious reason for holding two meetings, and that it had been able to dissipate the Union's strength among the warehousemen . They were also dissatisfied about their wage rate , and there may also have been an element of worry that if the Union lost the coming election they would be 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forced out. Stockton , in fact, went into Helbig's of- fice at one point and asked Winter if they wouldn't be fired after the election , and although Winter an- swered that the Company did not operate that way, there must have been a residual disquiet among them about the role they had played in supporting the Union's campaign. About this time , Dick Ceslok left the breakroom to go to work . The other three continued their discussion of their grievances and feelings of frus- tration . Tom Ceslok said they couldn 't make any money there , and he was going to quit . Clark and Stockton then agreed that they would quit too. One of them pointed out that if they quit then and there, the Company might not give them a good reference , and they then mutually decided not to leave until the end of the week . When Helbig came into the breakroom to see what was keeping them from starting out on the day's work , they told him they were quitting as of Friday . He asked them if they were sure, and they told him they were . Helbig went back into his office . Stockton walked in a few minutes later, and Helbig asked him what had brought this on. Stockton replied that it was just a lot of little things . At some point , Helbig thanked them for not quitting on him immediately. It did not take them long to decide that they had been wrong to quit. Clark and Stockton came to Helbig individually on Friday, and asked if they could have their jobs back , and on Saturday, Ceslok did the same . Helbig told each of them that he would have to let them know later , that he would have to call someone on Monday to find out if he should take them back . On Monday, he told each of them that he would not rehire or reinstate him. The same day, Helbig used two of his warehousemen who had experience as truckdrivers as replacements, and during the same week he also used a driver employed by one of his customers as a temporary replacement. That week he placed ad- vertisements in a newspaper seeking drivers. When Clark called Helbig on Monday afternoon, Helbig told him that he was afraid to hire only one of them , but if Clark wanted his job back , to return in a couple of weeks after this thing had blown over and he would talk to him. Clark answered that he would probably have something else by then. When Stockton called Helbig on Monday , Helbig told him he either had to take all three drivers back or none , and that he wasn 't keen about taking them all back because he could not see anything to keep them from walking out on him again . Helbig told him to look around, and if he had not found anything in a couple of weeks or so, to call back and he would be glad to talk to him. Helbig told Ceslok when he called Monday that the man in Minneapolis had told him it was all right with him if Helbig rehired them , but his own per- sonal opinion was that he shouldn't take them back because he was afraid they would do the same thing again . Ceslok could not recall anything else that Helbig might have said to him. The General Counsel admits, and the Charging Union does not seriously dispute , that the action by Clark, Stockton, and Ceslok on February 15 con- stituted a voluntary quit. The fact that they acted concertedly over dissatisfaction with their wages or working conditions does not transform their action into a work stoppage or strike , since these contem- plate a temporary withholding of services but not a permanent severance of the employment relation- ship. The three drivers intended to quit , announced that they were doing so, and did not expect to be able to return to work after Friday, February 17, simply by withdrawing their resignations. Thus, Helbig was under no obligation to induce them to return after they quit , even though he may have been secretly pleased that three union supporters should choose to leave shortly before the scheduled election . Did the Company violate Section 8(a)(3) in refusing to allow the drivers to rescind their resignations, thereby continuing in effect a situation which it had done nothing to provoke ? The critical issue is one of motivation : Why did Helbig refuse to allow the drivers to return to work? The Company asserts that the principal reason for its ,refusal was because the three of them had quit without adequate notice . A concomitant reason was its fear that employees who have done so once might do so again another time. Other reasons which it says inclined it to reject their offer to return were, with respect to Stockton and Ceslok , that it regarded them as rather in- adequate-not so unsatisfactory as to justify their discharge, but not good enough to extend itself in extricating them from the consequences of their own hasty action . As for Clark, Helbig regarded him as a better employee , but not worth taking back at the risk of a possible charge of discrimina- tion against the other two. Winter testified that Helbig had told him before the meeting that he suspected that the truckdrivers were sympathetic toward the Union ; and Stockton's statement to that effect at the February 15 meeting corroborated it. Thus, the Company's knowledge of their support of the Union is well established. The General Counsel characterizes this knowledge as animosity and distaste for the Union, basing it in part on his assumption that the allegations of inde- pendent violations of Section 8(a)(1) have been proven . Two of them , in my opinion , have not been proven-the allegation that Stockton was threatened by Helbig in their conversation about the Union and the former's tardiness, and the al- legation that Helbig or Winter threatened em- ployees with a loss of existing benefits , and that bargaining would start from scratch if the Union got in. The remaining 8(a)(1) allegation has not yet been considered , and this is the time for it. It is based on a conversation between Stockton and Foreman Van Blaricom on Sunday , February 19, in which the latter is said to have revealed that the Company would not reinstate the three drivers because they were union supporters . On Friday NUTRENA MILLS 189 evening, February 17, Stockton had gone to Van Blaricom 's home to engage in a few sets of table tennis. Stockton used the occasion to ask his host if he would get his job back , and Van Blaricom said he didn 't know. Sunday afternoon the two again played table tennis and went bowling . Stockton again used the visit to sound out Van Blaricom about getting his job back . He said he wanted to come back even if it meant taking a reduction in pay to do so. According to Stockton, Van Blaricom then said , "Well, you realize that you are the three guys that started this union business , and you know we don 't want a union in there , now what would you do if you was in our shoes." According to Van Blaricom , when Stockton asked him if he knew whether he would get his job back , Van Blaricom had said, "Well, with your past record, Bill, you know it's not too good , what would you do if you were in my shoes." Van Blaricom also testified that the next morning he told Helbig that Stockton ap- peared sincere in wanting his job back, and that he would be willing to give him another chance. Hel- big then said he did not feel that he should take Stockton back because of his tardiness , horseplay- ing, and quitting without notice. I believe Van Blaricom is to be credited over Stockton . The two were not old friends , likely to exchange confidences . Their socializing on Friday and Sunday was, I feel , largely due to Stockton's at- tempt to enlist Van Blaricom in his effort to get his old job back, and in this he was partially successful, since Van Blaricom was sufficiently swayed to recommend his rehiring to Helbig . Van Blaricom impressed me as a cautious person, not one to go overboard in promising Stockton anything , and not one to reveal to a former employee what his own supervisor may have told him in confidence, even assuming that Helbig had mentioned to him that his true reason for refusing to rehire Stockton was the latter's affiliation with the Union. Even though I do not credit Stockton 's recollec- tion that Van Blaricom had told him that it was his support of the Union which made his reinstatement unlikely, the issue of why Helbig refused to allow the three drivers to return must still be decided. In arguing that the Company was motivated by the drivers' support of the Union in refusing to rein- state them , the General Counsel also relies on Hel- big's remarks to Clark and Stockton on February 20 when he told them he would not take them back, and on the asserted pretextual nature of the Company's claim that it was dissatisfied with Stockton and Ceslok 's work performance and its claim that the notice to quit given by the drivers was inadequate. Helbig told both Clark and Stockton separately on Monday, February 20, that he would not, in ef- fect, allow them to rescind their resignations, but that if they had not found anything in a couple of weeks to come back after the whole thing had blown over, and he would be happy to talk to them. Ceslok did not testify that Helbig had said anything to him about returning or calling back at any time in the future. The General Counsel urges that Hel- big's remarks were an invitation to return to work for the Company after the election, when presumably their sympathy for the Union would be unavailing . The remarks are not as unambigous as the General Counsel would have them. They may refer to Helbig 's imputed intention to rehire them after the election , but they may be nothing more than a courteous and vague reference to the possi- bility that something might be open for them in the future. What objective facts there are seem to me to preponderate in favor of the latter interpretation. Helbig did not leave their jobs unfilled. He did what he could to fill the gap immediately by transferring two of his warehousemen to driving and by borrow- ing a driver from a customer . He also placed a newspaper advertisement for drivers , and was able to hire replacements very soon thereafter. Thus, by the time the Company was advised of the filing of the charge and the withdrawal of the petition, Hel- big had taken action which makes it appear unlike- ly that he ever intended to leave Clark's or Stockton 's positions open for them , without regard to an election. I come now to the Company's reasons for refus- ing to reinstate the drivers , which the General Counsel and the Charging Union characterize as pretexts. The first is the Company 's claim that it re- garded their notices to quit as inadequate . The em- ployee handbook suggested that 2 weeks ' notice should be given , whereas the drivers gave only 3 days' notice . As might be expected , the practice of other employees varied widely . One employee had quit without notice by not showing up for work and not explaining his absence , while other employees have given 2 or more weeks ' notice . Helbig might, with reason , overlook a short notice which was quickly withdrawn, in the case of one employee, and feel differently when three employees do it simultaneously. The drivers had left Helbig in a hole when they announced on Wednesday that they would not work after Friday, and it is understandable if Helbig felt no strong desire to help them out of their own hole. People are sometimes swayed by such an uncharitable notion as a desire to retaliate for the trouble they have been put to . I think Helbig ex- pressed some such resentment in a more acceptable manner when he told the drivers that he would not take them back because they might do the same thing again . I consider it quite probable that Helbig would have felt and acted the same way even if no election were pending. A great deal of time and effort was expended at the hearing in supporting or refuting the Company's claim that one of its reasons for refusing to rein- state Stockton and Ceslok was their inadequacies as employees. Much of this , in retrospect, seems to me to be controversy over subsidiary issue . Without analysing the testimony in detail , my conclusions on this matter are that the Company would not, in the 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD immediate future, have discharged Stockton or Ceslok for tardiness , horseplay , or other claimed deficiencies in their attitude toward work or in their performance. I am satisfied that Stockton and Ceslok were fair, but in no way excellent, em- ployees . They were , it seems to me , in the view of the Company , good enough to retain , out of inertia or a disinclination to discharge for minor deficien- cies, but yet not so good as to overbalance the other asserted reasons for not reinstating them. Helbig and the other company people he con- sulted after February 15, were undoubtedly aware that the pending election , scheduled for early March, would more likely result in a vote of the employees against representation if Clark, Stockton, and Ceslok were not eligible to vote. But awareness and recognition of what might result if these three were not reinstated is not proof that the Company was motivated , even partially , in thereby refusing to permit them to rescind their resigna- tions . I have found that the Company displayed no hostility to unionism generally or to this Union, and that it has not otherwise interfered with , restrained, or coerced its employees in the exercise of their Section 7 rights. The Company did not act un- reasonably by taking into account the manner in which the drivers quit, the shortness of their notice, the possibility of disruption of its business by similar impetuous action , and their future value as employees, and in then deciding that it did not want them back . The General Counsel had a difficult evidentiary problem in attempting to prove that all of these considerations together would not have in- fluenced the Company to reject their applications for reinstatement , and that what actually swung the balance was the Company 's objection to their vot- ing for the Union . I am not satisfied that the General Counsel has satisfied his burden of proving that, but for the pending election , the Company would have allowed the drivers to rescind their resignations. Finally, the Charging Union argues that the three drivers "took the action they did " on February 15, in order to protest their wages and working condi- tions, and that the Company discriminatorily refused to "retain " them because it was afraid that sometime in the future they might engage in the ex- ercise of a lawful protected right , that is, "to con- certedly walk off their jobs again in order to protest working conditions." The argument depends on the studied ambiguity of the phrases I have set out in quotation marks. The action of the drivers on February 15 was to announce that they were quitting , that is, leaving their employment per- manently . They may have done so in order to protest their wages and working conditions, but they did not demand that these be improved as the price for their return. The Company, in fact, would have run the risk of violating the Act if it had granted them a raise while an election was pending. The Charging Union then asserts that the Company refused to "retain " them ( which bears the implica- tion that they had not quit) because it feared that having once engaged in concerted action they might again walk off the job concertedly to protest wages and working conditions . But if Helbig's words are taken as an accurate reflection of his in- tentions , he meant, as he said , that having once walked off the job (by quitting) he was afraid that the drivers might again walk off their jobs (by quitting ). In refusing to reinstate them , Helbig retaliated against them for quitting , and in order to make it impossible for them ever to quit on him again . I do not consider this to be reprisal for en- gaging in a right protected by Section 7 of the Act. Based on the foregoing, I hold that the General Counsel has failed to establish , by a preponderance of the proof, that the Respondent refused to rein- state or rehire Stockton , Clark , and Ceslok because of their support or sympathy for the Charging Union. I shall, therefore , recommend the dismissal of the complaint in its entirety. CONCLUSIONS OF LAW 1. Nutrena Mills, Division of Cargill, Incor- porated, is engaged in commerce and in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Drivers, Dairy Employees and Hel- pers Union Local No. 579, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. The Respondent has not engaged in any unfair labor practices as alleged in the complaint. RECOMMENDED ORDER It is hereby recommended that the complaint be dismissed in its entirety.