Kraftco Corp.

632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kraft Foods Division of Kraftco Corporation and Walter David Mathews and Ice, Storage, Scrap Materials & Grain Warehousemen, Local Union No. 105 affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 9-CA-6497 and 9-RC-9151 August 1, 1972 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO On April 10, 1972, Trial Examiner Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter, the Petitioner-Intervenor filed exceptions and a supporting brief. The Respon- dent filed limited cross-exceptions, a supporting brief, and a brief in support of other portions of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. IT IS FURTHER ORDERED that the challenge to the ballot cast by Walter David Mathews in Case 9-RC-9151 be, and it hereby is, sustained. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Ice, Storage, Scrap Material & Grain Warehousemen, Local No. 105, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and that said labor organization is not the exclusive bargaining representative of all employ- ees in the unit herein involved within the meaning of Section 9(a) of the National Labor Relations Act, as amended. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON, Trial Examiner: This case was heard at Cincinnati, Ohio, on February 10 and 11, 1972, pursuant to a charge filed by Walter David Mathews, An Individual, on September 28, 1971,1 and a complaint issued on November 17. The complaint alleges that Kraft Foods 'Division of Kraftco Corporation (herein referred to as Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein referred to as the Act), by threatening an employee with more onerous and less desirable working conditions or discharge because of the Union and by discriminatorily changing !Walter David Mathews' warehouse duties to janitorial tasks, making his duties more onerous and less desirable. Respondent in its answer filed on November 26 denied violating the Act. The issues are whether Respondent !threatened an employee and whether it changed the duties Hof Walter David Mathews to more onerous and less desirable working conditions and if so, whether such change was for discriminatory reasons. On November 17 the Regional Director for Region 9, by order, consolidated for hearing with the issues arising under the complaint the resolution of a challenged ballot cast by Walter David Mathews in an election conducted on August 27, pursuant to a Stipulation for Certification Upon Consent Election approved on July 26 based upon a petition filed by the Ice, Storage, Scrap Materials & Grain Warehousemen, Local Union No. 105, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein referred to as the Union). The issue in resolving the challenged ballot is whether Mathews was eligible to vote in the election. At the hearing the parties were afforded full opportunity to introduce relevant evidence, to examine and cross- examine witnesses , to argue orally on the record, and to submit briefs. Upon the entire record in this case, from my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent,2 I hereby make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE EMPLOYER Respondent, a Delaware corporation with places of business located at various locations including Cincinnati, Ohio, is engaged as a manufacturer and wholesaler of food products in the wholesaling industry. During the 12-month period preceding the issuance of the complaint, Respon- dent sold and shipped from its Cincinnati, Ohio, establish- ment, which is the only one involved in this proceeding, products valued in excess of $50,000 directly to points ,located outside the State of Ohio. 1 All the dates referred to are in 1971 unless otherwise stated 2 The Union which was permitted to intervene as a party in the complaint proceeding did not submit a beef 198 NLRB No. 94 KRAFT FOODS DIVISION Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. TILE LABOR ORGANIZATION The Union is an organization in which employees participate and which exists for the purpose of dealing with employers concerning matters including wages, hours, and working conditions. It also negotiates and administers collective-bargaining agreements with various employers. This evidence is based upon the undenied testimony of James Felder, who is the secretary-treasurer of the Union, which I credit. Therefore, I find the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent, in the operation of its warehouse, employs employees classified as warehousemen. Their primary duties include putting away returns, which are items the drivers are unable to deliver, pulling orders for delivery, working on the line, and loading trucks. The equipment used by them in performing these duties include electric fork-lifts, electric tow motors, and hand carts. The warehousemen are hourly paid and receive various benefits including night premium pay, scheduled break periods, insurance, pension plan, sick leave, funeral leave, and a tuition refund plan.3 During the period in issue Warehouse Manager Glenn Skaggs was in charge of the warehouse and Robert Amrine was warehouse supervisor on the night shift. Prior to Amnne assuming this position in October 1970, previous supervisors on this shift included Leadman James Klausing from June 1970, to October 1970, and Warehouse Supervisor Glenn Myers from November 1968, to July 1970, with the exception of January 1970, when he rotated with Warehouse Supervisor Edward Kunkemoeller. The hours for second shift are from 3:30 p.m. to 12 midnight Monday through Friday and formerly were from 5 p.m. or 5:30 p.m. to 1 a.m. Warehouse work is also performed on Sundays. B. The Duties of Walter Mathews Walter Mathews, the alleged discriminatee who is presently employed by Respondent, was hired in October 1969. Respondent's records show throughout his employ- ment he has been classified as a permanent part-time miscellaneous employee. His normal work hours, arranged to accomodate his status as a college student, averaged between 25 to 30 hours each week,4 including up to 4 hours each night Monday through Friday5 beginning at 4:30 p.m., and 8 hours on Saturday. During holidays and school recesses he worked additional hours. Mathews testified when he was hired he was told his main duties would consist of washing and gassing Respondent's trucks, taking care of the district sales manager's car, emptying the cleaning lady's trash barrel, and burning trash in the 3 Part-time employees do not receive these benefits. 4 Respondent's records for 1971 show Mathews averaged less hours per week except for the latter part of May through July when he worked 633 incinerator. Although Mathews claimed he was not specifically instructed to do so, in addition to those duties, he cleaned up the air-conditioning room and drivers room, emptying their trash cans and the trash can from the warehouse office into the incinerator, and cleaned up his work area including the garage when necessary. According to testimony of warehouse employees presented as witness- es by counsel for General Counsel, Mathews on occasions also cleaned up the front dock area and swept the warehouse floor as did the warehouse employees. I find that these duties performed by Mathews, which are consistent with the testimonies of Warehouse Manager Skaggs and Warehouse Supervisor Amrine about the duties assigned Mathews, are those duties which Mathews regularly performed throughout his employment as an employee of Respondent. Mathews testified in addition to his regular duties described above he also performed duties normally performed by warehousemen. According to him, shortly after he was hired he began putting away returns and within a period of several months was performing the other duties performed by warehousemen. This additional work continued until around September 1970 when he inquired of Warehouse Manager Skaggs about a raise the ware- house employees were to receive at which time Skaggs informed him he was working too many hours and wasn't suppose to be doing warehouse work. Skaggs instructed him not to do any more warehouse work. Warehouse Manager Skaggs denied this incident. However, according to Mathews, after several weeks passed he was again asked by supervision to perform certain warehouse duties and within a short period he had resumed performing ware- house duties as before. Mathews was not certain who gave him these instructions. Mathews estimated between October 1969, when he was hired, and July 1970, he averaged between 20 to 30 percent of his worktime each week performing warehouse duties and the most warehouse work he performed occurred during the period June to October 1970, when Leadman Klausing was supervising warehouse work. Warehousemen Larry Sturgel, Bernard Watts, and Charles Kehrer, who worked with Mathews, corroborated the fact Mathews performed warehouse work including putting away returns, pulling orders, loading trucks, and working on the line and that for a period of several weeks around September 1970 he ceased performing such duties. Sturgel testified Ma- thews initially put away returns, and between December 1969 and May 1970, Mathews' pulled orders about every night, loaded some trucks, and thereafter up until around July worked on the line about 2 hours just about each night. Watts testified Mathews initially put away returns and after several months started doing other warehouse work. Although he claimed Warehouse Manager Skaggs and Warehouse Supervisor Amrine gave him instructions to have Mathews perform warehouse work, under cross- examination, Watts acknowledged these instructions ap- plied to Sunday work performed during a school recess discussed infra, about which there is no dispute Mathews additional hours because of a school recess, discussed infra 5 Mathews does not presently work on Fridays. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD performed warehouse work. While Kehrer on direct examination testified Mathews performed workhour work 2 to 3 hours every night, on cross-examination he limited his estimate to only about half of the days Mathews worked. Respondent's supervisors denied Mathews per- formed warehouse work on a regular basis, or that he worked 2 or 3 hours a night performing such work. Former Warehouse Supervisor Myers, who supervised the ware- house from November 1968, to July 1970, testified Mathews only performed warehouse work when the warehouse was extremely busy or on holidays or when employees were ill with the exception of school recesses when Mathews worked extra hours. Myers acknowledged Mathews put away returns but stated this vaned from three or four occasions a week to none at all. He further stated during a couple of extremely busy weeks Mathews spent about 50 percent of his time performing warehouse work. Warehouse Supervisor Amrine, who began supervising the warehouse in October 1970, testified the only warehouse work he assigned Mathews prior to May except for holidays was to load semitrailer trucks using a fork-lift on five or six occasions because of illnesses or heavy work loads. According to him, the only time he observed Mathews putting away returns was when it was necessary for his own convenience. Warehouse Manager Skaggs testified he had instructed Mathews to put away returns on Fridays when the other men had gone and the truckdrivers came in late and the only occasions he was aware of that Mathews pulled orders was when Mathews would get up an order for a salesman. Based upon the above evidence, I find, and Respon- dent's supervisorss admit, that dunng Mathews' employ- ment he performed some warehouse work in addition to his regular duties. However the conflict apses over the amount of time Mathews spent performing such work and whether it was performed on a regular basis. Counsel for General Counsel's witnesses all vaned in their testimonies concerning both matters. Further, no distinctions were made by them in their estimates to account for the fact as reflected by Respondent's records that Mathews averaged fewer work hours during his normal workweek in 1971 when he was under the supervision of Warehouse Supervi- sor Amnne than previously. Mathews himself, called as a rebuttal witness when asked to describe the warehouse duties he performed after Warehouse Supervisor Amnne took over in October 1970 but prior to May, could only relate, in addition to those five or six incidents testified to by Amnne, some occasions when' he put away returns and helped park the trucks to be loaded by temporary help from Handy Andy around December. Therefore, in view of Respondent's records and Mathews' admissions that he only performed warehouse duties on limited occasions during his normal workweek under Warehouse Supervisor Amrine, which corroborates Amrine's testimony, I find that since October 1970 Mathews has not performed warehouse work on a regular basis during his normal workweek and the limited occasions he did perform such work were of an isolated nature. This finding does not imply that prior to October 1970 he performed warehouse work on a regular basis although it appears he did perform more warehouse work prior to that date. Arrangements were made in May for Mathews, in addition to performing his regular duties, to work extra hours during the week and on Sundays performing warehouse work. The evidence shows these arrangements were made pursuant to Mathews' request for additional hours because of a school recess and Respondent's need for help in the warehouse because of vacation schedules, illnesses, and the workload.? However this was only a temporary arrangement because of the school recess and ended in July following Mathews marriage on June 26 and his vacation and return to work on July 5 when he requested a resumption of his previous work schedule in order to resume his studies. During these extra work hours including Sundays, Mathews performed warehouse work. It was during this period Mathews and other employees performing warehouse work were assigned marks to use when checking items on invoices to determine who was making errors. These facts, which I find, are essentially undisputed. While Mathews claimed when these arrange- ments were made Warehouse Manager Skaggs told him to give priority to the warehouse work over his regular duties, which Skaggs denied, the evidence showed Mathews continued performing his regular duties during that period. Following his request in July to return to his former work schedule Mathews did so with the exception he did not work on Fridays. He had initially stopped working on Fridays during the school recess at Respondent's request because he was working 7 days a week. According to Mathews he had not resumed his Friday work because he had been told on a particular Friday he would not be needed and thereafter he didn't come in because he wasn't asked. While Mathews contended this resulted in his working fewer hours per week Respondent's records, which show his average hours remained approximately the same, refute this contention. However the elimination of the Friday work or reduction in his hours was not alleged in the complaint or fully litigated at the hearing and accordingly I will make no finding on this matter. According to Mathews beginning around the middle of July, Warehouse Supervisor Amrine stopped requesting him to perform any warehouse work. C. The Alleged Threat and Discrimination Against Mathews Mathews testified on July 29 Warehouse Manager Skaggs called him at his home informing him he was making out the eligibility list to determine who should vote in the union election and inquired whether he would be working in August when it would be held.8 Mathews stated when he replied he would Skaggs told him since he was married he should start looking for a full-time job and union or no union he would be looking for somebody to replace him and would be cutting his hours. Mathews also stated Skaggs told him he was classified as a part-time permanent miscellaneous employee which is the first 6 Respondent in its answer admitted Warehouse Manager Skaggs and r Respondent also hired college students each year including 1971 to Warehouse Supervisor Amnne were supervisors within the meaning of work full time in the warehouse dunng the summer. Section 2(11) of the Act 9 The election was held on August 27. KRAFT FOODS DIVISION 635 knowledge he had of his classification. Warehouse Manag- er Skaggs acknowledged calling Mathews sometime in July but was uncertain of the date. His purpose was to find out when Mathews was going to graduate from school so they could hire a replacement as it had been his understanding Mathews had planned to graduate in June.9 Skaggs specifically denied making any threats to reduce Mathews' hours or to discharge him or that any mention was made about the union or eligibility list. Warehouse Supervisor Amrine, who testified he was present with Warehouse Manager Skaggs when he called Mathews, placed the conversation as occurring on July 13 and corroborated Warehouse Manager Skaggs' denial of the statements attributed to him by Mathews. According to Amrine, on the previous day pursuant to Skaggs' request, he had unsuccessfully attempted to find out from Mathews when he was going to graduate so a replacement could be hired and on July 13, when he reported the results of his efforts to Skaggs, Skaggs called Mathews. Mathews did not deny having such a conversation with Amrine. I credit Ware- house Manager Skaggs' denial corroborated by Amnne and find that Skaggs did not make the alleged threats or remarks attributed to him by Mathews. Mathews, whose testimony was to some extent characterized by evasiveness and a distortion of facts where more favorable to him, did not impress me as a credible witness. Further, Mathews' version of the conversation is implausible in the absence of any evidence to show at the time the conversation occurred even assuming it occurred on July 29 Mathews had engaged in any union activities or expressed his union sentiments in addition to the fact no reasonable basis existed, discussed infra, for including him in the bargaining unit. Although the complaint alleges that on July 29 Respondent also threatened an employee, presumably Mathews, with more onerous and less desirable working conditions, no evidence was presented with respect to this portion of the complaint. Shortly before the election was held on August 27, Respondent held a meeting of its warehousemen 10 at the plant concerning the election. When Mathews inquired about attending the meeting he was refused on the grounds it did not concern him. Inasmuch as I do not find Mathews was an eligible voter, discussed infra, Respondent by not permitting him to attend the meeting did not thereby discriminate against him. Mathews testified that around August 26 when he asked District Sales Manager H. W. Striker, an admitted supervisor, why his name didn't appear on the eligibility list Striker replied only warehousemen were supposed to vote and he was classified as a part-time permanent miscellaneous employee. Striker also informed him they had been employing him so he could go to school and he shouldn't be concerned about the election. Mathews stated he told Striker he had been doing warehouse work, felt he had a right to vote, and said he wasn't going to quit until there was a union in the warehouse. According to Warehouse Manager Skaggs the next day Striker informed him of his conversation with Mathews. Mathews testified that on August 28, the day following the election, Warehouse Manager Skaggs instructed him not to do any warehouse work but to confine his duties to washing and gassing the trucks, taking care of the automobiles used by the district manager and zone manager, and emptying and burning the trash in the incinerator. While not related initially in his testimony concerning his conversation with Skaggs, Mathews claimed he was also told by Skaggs to clean the incinerator which he had not previously done. Skaggs denied assigning Mathews any additional duties. Although Mathews con- tends another employee Seiter had previously performed this task the record doesn't clearly establish by probative evidence whose duty it was or whether Mathews is the only employee who has since performed this task. Skaggs admitted telling Mathews not to do any more warehouse work because District Sales Manager Striker, upon learning Mathews had been performing such work, had ordered it stopped since Mathews was a miscellaneous employee and he had had trouble at other branches with miscellaneous employees doing warehouse work. On September 23 Mathews received a written memoran- dum from Warehouse Manager Skaggs instructing him to empty the trash cans in both offices and the air-condition- ing room, to burn all the trash he could, and on Saturdays to sweep the garage floor and keep it clean from day to day, and to sweep the warehouse and front dock. Mathews testified that since receiving the memorandum those duties stated therein as well as the other regular duties previously found such as washing and gassing the trucks are the only duties which he has performed. Warehouse Manager Skaggs, who had previously left memorandums for Mathews concerning his work, testified the September 23 memorandum resulted from complaints which he had received and had observed himself about Mathews not performing his regular duties properly. According to Skaggs the only additional assignment given Mathews in the memorandum was to sweep the warehouse when he had time. D. Analysis and Conclusions Counsel for General Counsel contends Respondent violated Section 8(a)(1) and (3) of the Act by threatening an employee with more onerous and less desirable working conditions and by discriminating against Mathews by taking away his warehouse duties and assigning him janitorial tasks thereby making his duties more onerous and less desirable because of the Union. If proven, such conduct would violate the Act. Respondent's Counsel denies Mathews was either threatened or discriminated against. Among those factors relied upon by Counsel for General Counsel in support of his position was the alleged threat made by Warehouse Manager Skaggs to reduce Mathews' hours and to replace him; prohibiting Mathews from attending the meeting of the warehouse employees; reducing Mathews' workweek; and Mathews' conversation with Warehouse Manager Skaggs and the memorandum concerning his work assignments. These factors have all been discussed and certain findings made. Since no 9 According to Mathews his school plans had changed on several occasions 10 The college students who were working full time in the warehouse during the summer did not attend the meeting. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence was presented to show Mathews or any other employee was threatened with more onerous or less desirable working conditions, and in view of my finding no other threats were made to him, the only issues remaining are whether Mathews' warehouse duties were changed to janitorial tasks thereby making his duties more onerous and less desirable and if so whether such changes were for discriminatory reasons. There is no question but that on the day following the election Mathews was prohibited from performing warehouse duties. However, since it has already been found that since October 1970, he had only performed such duties during his normal workweek on an isolated basis, the announced change did not materially affect his regular work. To the extent it may ultimately affect extra work such as that performed during holidays and school recesses, this is only speculative inasmuch as the record does not establish the amount of time previously spent by Mathews in performing such work and in view of his contemplated graduation. With respect to the issue of whether his duties were made more onerous and less desirable, a comparison of his regular duties previously found with those duties Mathews was orally instructed to perform and subsequently reiterated by the memorandum establishes they are substantially the same duties and of the same nature. Therefore, I do not find the evidence is sufficient to establish Mathews' duties have become more onerous and less desirable. Further, I do not find this announced change in prohibiting Mathews from perform- ing warehouse duties resulted from discriminatory reasons. While the timing of the announced change, occurring only 2 days after Respondent had obtained knowledge of Mathews' prounion sentiments, is a factor to consider in inferring a discriminatory motive for the change, I do not find it significant since it was that same occasion District Sales Manager Striker learned from Mathews himself he had been performing warehouse work which was the reason given by Respondent for the change. Moreover, Mathews had previously been prohibited from performing warehouse duties at a time when there was no evidence the Union was engaged in an organizing campaign among Respondent's employees. Counsel for General Counsel's contention that the change in Mathews' duties was related to excluding him from the bargaining unit is untenable on two grounds: namely, the announced change did not occur until after the election albeit the challenge to Mathews' ballot was pending, and prior to the election Mathews' limited warehouse duties would not have made hum eligible to vote in the election. The stipulated bargaining unit was described as follows "All warehousemen employed by the Employer at its warehouse at 4530 W. Mitchell Avenue, Cincinnati, Ohio, but excluding all office clerical employ- ees, and all guards, professional employees and supervi- sors, as defined in the Act, and all other employees." For employees who perform more than one function for " In view of my finding I do not find it necessary to discuss the testimonies of Counsels for the Respondent and the General Counsel, the same employer to be eligible to vote they must regularly perform duties similar to those performed by unit employees for sufficient periods of time to demonstrate they have a substantial interest in the working conditions in the unit. Berea Publishing Company, 140 NLRB 516; R.B.P., Inc., d/b/a Royal Communicating Graphics, 176 NLRB No. 22. Mathews, who was not classified as a warehouseman, did not perform warehouse duties either regularly or for sufficient periods to be included in the bargaining unit. Cf. Davis Transport, Inc. 169 NLRB 557; reaffd. 180 NLRB 966, enfd. 433 F.2d 363 (C.A. 6). For these reasons and in the absence of any evidence to establish union animus on the part of the Respondent, I find that Counsel for the General Counsel has failed to establish by a preponderance of the evidence, as is his burden, that Respondent either threatened Mathews or any other employee with more onerous and less desirable working conditions or discharge or discriminated against Mathews by making his duties more onerous and less desirable because of the union as alleged. IV. THE CHALLENGED BALLOT The eligibility status of Walter David Mathews as a voter in the election conducted in Case 9-RC-9151 has already been discussed. Having found that Mathews was not a warehouse employee and did not have a substantial interest in the working conditions in the bargaining unit to be included in the unit, I hereby recommend that the challenge to the ballot of Walter David Mathews be sustained and that the results after the election be certified. CONCLUSIONS OF LAW 1. Kraft Foods Division of Kraftco Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Ice, Storage, Scrap Materials & Grain Warehouse- men, Local Union No. 105, affiliated with the Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. The evidence does not prove that the Respondent violated Section 8(a)(1) and (3) of the Act as alleged. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, I hereby issue the following recommended: ORDER The complaint herein is dismissed in its entirety. The challenge to the ballot of Walter David Mathews in Case 9-RC-9151 is sustained and the results of the election should be certified. concerning their conversations which resulted in the execution of the Stipulation for Certification Upon Consent Election in Case 9-RC-9151.