Holland American Wafer Co.

HOLLAND AMERICAN WAFER CO. Holland American Wafer Co. and General Teamsters Union, Local No. 406, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. Case 7-CA-9199 September 19, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On June 12, 1972, Trial Examiner Wellington A. Gillis issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a sup- porting 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 au- thority 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 brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order, except as modified herein. We agree with the Decision in all respects except that we would not find that Respondent violated Sec- tion 8(a)(1) of the Act when its supervisor told em- ployees that the Company would never agree to a closed shop and that it would be silly for them to join and pay dues to the Union. Since the statute does not permit closed shop agreements, and the second part of the statement is protected by Section 8(c), we do not believe that such statement is proscribed by the statute. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner as modified below, and hereby orders that Respondent, Holland American Wafer Co., Grand Rapids, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the recommended Order as modified here- in: 1. Delete paragraph 1(c) and redesignate para- graphs (d), (e), (f), (g), and (h) accordingly. 2. Substitute the attached notice for the Trial Examiner's notice. 115 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees con- cerning their union sympathies and the union membership of other employees. WE WILL NOT give the impression of surveil- lance of employee union activity by telling em- ployees that the Company has a list of union members. WE WILL NOT ask our employees to attend union meetings and to report back on employees present. WE WILL NOT threaten our employees with loss of employment and discharge for telling the Union the extent of the Company's knowledge of employee union activity. WE WILL NOT make promises of benefit to our employees for recalling their union cards and working in the event of a strike. WE WILL NOT undermine the bargaining sta- tus of the Union by soliciting, encouraging, as- sisting, and aiding the employees to get their union cards back from the Union. All our employees are free to become, remain, or to refrain from becoming or remaining members of the General Teamsters Union, Local No. 406, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of American, Indepen- dent, or any other labor organization, except to the extent that such right may be affected by an agree- ment requiring membership in a'labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as guaranteed in Section 7 thereof. Dated By HOLLAND AMERICAN WAFER CO (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to' the Board's Office, 500 Book Building, 1249 Washington 199 NLRB No. 18 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blvd., Detroit, Michigan 48226, Telephone 313-226- II THE LABOR ORGANIZATION INVOLVED 3200. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Trial Examiner: This case was tried before me on April 13, 1972, at Grand Rapids, Michi- gan, and is based upon a charge filed on January 3, 1972, by General Teamsters Union, Local No. 406, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, hereinafter referred to as the Union or Local 406, upon the complaint, issued on February 28, 1972, by the General Counsel for the National Labor Relations Board, hereinafter referred to as the Board, against Holland American Wafer Co., hereinafter referred to as the Respondent or the Company, alleging violations of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and upon an answer timely filed by the Respondent denying the com- mission of any unfair labor practices. At the hearing, all parties were represented by counsel and were afforded full opportunity to examine and cross- examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argument. All parties waived the filing of briefs and, in lieu thereof, engaged in closing argument on the record. Upon the entire record in this case,' and from my observation of the witnesses and their demeanor on the witness stand, and upon substantial, reliable evidence "con- sidered along with the consistency and inherent probability of testimony" (Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT Holland American Wafer Co., a Michigan corporation, maintains its principal office and place of business in Grand Rapids, Michigan, where it is engaged in the manufacture, sale, and distribution of wafer cookies, baked goods, and related products. During the calendar year 1971, the Re- spondent purchased and caused to be transported and de- livered at its Grand Rapids place of business goods and materials valued in excess of $100,000, of which amount goods and materials valued in excess of $50,000 were trans- ported and delivered to its place of business in Grand Rap- ids, Michigan, directly from points located outside the State of Michigan. During the same period, the Respondent man- ufactured, sold, and distributed at its Grand Rapids, Michi- gan, operation products valued in excess of $500,000, of which amount products valued in excess of $50,000 were shipped from said place of business directly to points locat- ed outside the State of Michigan. The parties admit, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 'Certain errors in the transcript are hereby corrected General Teamsters Union, Local No. 406, Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Issue Whether, on certain dates during October, November, and December 1971, Respondent's forelady, Evelyn Maultsby, engaged in conduct constituting violations of Section 8(a)(1) of the Act. B. The Facts Following an election held among certain of the Respondent's employees on July 1, 1971,2 Local 406 was issued a certification of representative on July 12. Since that time the Respondent and the Union have been engaged in contract negotiations. In early October, shortly after employee Donna Bur- rows returned to work from a pregnancy leave and was promoted to a stitching job,3 Evelyn Maultsby, during a discussion of the Union, asked Burrows if she were for or against the Union. Burrows replied that she was against it. Maultsby then asked if certain girls belonged to the Union. From this point on, during the entire fall, Maultsby and Burrows discussed the Union off and on during work hours almost every day. In fact, as testified by Burrows, "We enjoyed talking union together."4 One reason for this is the fact that, at least initially, Burrows was against the Union and, apparently sharing similar views with Maultsby, had her confidence. These daily union discussions, mostly by her stitching machine, were in many instances started by Maultsby, and at other times initiated by Burrows. At various times during October, Maultsby asked Bur- rows whether she knew if certain girls belonged to the Un- ion. Thus, on two separate occasions, her inquiries concerned packers Marsha Force and Linda Houghton. On another occasion, Maultsby asked Burrows if she knew whether Sherry Grover belonged to the Union, to which Burrows replied that she thought so because Grover had attended quite a few meetings. Maultsby followed with her statement that she could not understand why Grover would turn against her and go to the Union, that she (Maultsby) would have to talk to her. A few days later, Maultsby told Burrows that she had talked with Grover and that "Sherry did not belong to the Union at all any longer." On three or four occasions in November, during union discussions, Maultsby told Burrows that she had talked to a girl who she knew was joining the Union and told the girl that, if there were a strike and the girls crossed the picket line to work, they would be fined by the Union. 2 Unless otherwise noted, all dates hereinafter set forth refer to 1971 3 A stitcher operates a stitching machine, which stitches cookie boxes shut. A packer, hereinafter referred to, is one who packs cookies in boxes. The facts as to Maultsby employee conversations are based on the uncon- troverted testimony of five employee witnesses for the General Counsel, as Maultsby, although present, was not called to testify in this proceeding. HOLLAND AMERICAN WAFER CO. On five or six occasions during this period Maultsby told Burrows "and the other girls" that Stuart Vander Heide, company vice president, would never agree to a closed shop and therefore it was silly for the girls to belong to the Union and have to pay dues that everyone else would take advantage of. At other times Maultsby told Burrows that if there were a strike the Company would never forget those girls who had recalled their union cards and had worked and that the Company would remember who was with them. In October, just prior to a scheduled Saturday union meeting, Maultsby told Burrows that there was a list in the office of cardholders, girls whom the Company knew were union members. Maultsby asked her if she would attend the meeting and find out who was there so that she could fill in the list. On the Monday following , Burrows having attend- ed, she reported to Maultsby as to what was said, particular- ly concerning the vote against the wildcat strike , and who had been present. Maultsby wrote down the names of some six or eight employees Burrows gave her . Again, the follow- ing month, November, during a union discussion started by Burrows, in reply to Burrows' statement that the union meeting coming up was going to be a hot one, Maultsby asked her if she would go, that she would like to know what was going on. Burrows said she would think about it. About that time, Donald DeRaad, plant superintendent, walked up. Maultsby turned and told him that Burrows "was going to attend the meeting and tell them what was going on." The following day, Maultsby telephoned Burrows and inquired about the meeting. In reply to Maultsby's question as to who attended, Burrows told her that they were approxi- mately the same employees "that she had on her list." A couple of months later, on December 15, after it appears that Burrows had changed her allegiance , she was approached by Maultsby in the company lunchroom and told by Maultsby that "if she found out who let the Union know what we learned, that she would fire them." On or about the afternoon of December 7, while work- mg on the linch machine with three other girls , Cindy Shar- ber was approached by Maultsby who said "I hear you girls are going to have a - strike." When Sharber asked why, Maultsby answered "because John Vander Heide would never go for a closed shop." When Sharber said that she could not afford to go out on stake and would not go out, Maultsby told her that if she had signed a union authoriza- tion card she would have to go out or she would be fined. When Sharber said that she was not going to pay anybody money for crossing the picket line, Maultsby replied that she would have to get her card back; Sharber asked her how. Maultsby told her that she had to write to the union hall in care of union official Ray Wilder and send it registered with a return receipt requested. Maultsby explained the reason for this is that previously a girl had asked for her card back and when she went down to get it , it was torn up in front of her. When Sharber said that she would write for her card, Maultsby asked her if she had the address . When Sharber replied that she did not , Maultsby said that she could get it from DeRaad when he comes in. While she was clocking out at 11 p.m . that night, Maultsby handed Sharber the address of Ray Wilder, pointing to the words "registered" and "re- turn receipt" which had also been written on the piece of 117 paper. On another occasion around December 8, while pack- ing with Ann Bartman, employee Linda Houghton was talk- ing union when Maultsby approached. Maultsby stated that employees could be fined for crossing a picket line , that the Vander Heides were going to close the whole shop "because they did not want somebody checking or running his (sic) business," and that if the employees went on strike they would be replaced and would never be called back. Maults- by also queried, why join a union and pay dues when you get the same benefits as everyone else, that if they (Hough- ton and Bartman) signed a union card, they could not work during a strike. On December 13, before the first break on the second shift, while she was "lugging" cases from the stitcher to the tool linches, or wrapping machines , Annelies Bartman was confronted by Maultsby with "I hear there is going to be a strike." When Bartman said she had not heard about it, Maultsby proceeded to tell her that such was the case, and that anybody who had signed a union card and was *mem- ber of the Union would have to go on strike. Bartman said she could not afford it. Maultsby replied , "Well, you are going to have to go out because you signed a card , didn't you?" When Bartman did not answer , Maultsby told her that if she had signed a card she was going to have to go out because if she crossed the picket line "the Union can fine you up to $250." Bartman, who was totally unaware of this, picked up her cases and carried them to the linch. There, in the presence of seven other girls who were working on the tool linches, she told Cindy Sharber about being fined by the Union if they worked during a strike . Bartman then posed a question to Don DeRaad , who, at the moment, was attempting to repair one of the two finches which had bro- ken down. DeRaad told Bartman with the others listening that it was true. In reply to the inquiries of how much, DeRaad said "up to $250." This upset the girls, who then discussed among themselves the necessity of working, the inability to pay the fine, and the possibility of getting their union cards back . Maultsby, who was nearby, asked the girls if they needed the address of the Union and received an affirmative reply generally. Maultsby went to her office and shortly returned with an address and a supply of carbon paper, explaining to the girls that they should send their letters by registered mail and should keep a carbon paper for themselves. Maultsby then handed out the carbon pa- per. Maultsby left, saying "I am glad to see you are finally wisening up." Later, Bartman talked with Maultsby at the desk, tell- ing her that she could not afford to go along on a strike. Maultsby replied that she could understand that, and that if she did not want to go out on strike she would have to send to get her card back, otherwise she would be fined. Maultsby told Bartman that there definitely was going to be a strike because the Union was going to take hold of the shop. Maultsby followed with "Why should you pay union dues when the next girl would not have to," advising her that the best thing for her to do was to send for her union card, and later on she could always join the Union , and, in that way, would not get fined for crossing a picket line. Bartman said she would think about it. Later that evening, Maultsby approached Bartman and 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Donna Burrows with a piece of carbon paper in her hand. Maultsby held it out to Bartman saying that one of her friends told her to give this to her. After Maultsby walked away, Burrows explained to Bartman that this was for her in order to send for her card. Bartman then went to Maults- by, who gave her the carbon paper, and when Maultsby asked her if she knew how to do it, Bartman replied that she did not. Maultsby told her that she could get the Teamsters address from Linda Houghton to whom she had given the address. Maultsby told Bartman to make sure that she sent it by registered mail and that she kept a carbon copy. Maultsby also approached Cindy Sharber and asked her if she had sent for her card yet. Receiving a negative reply, Maultsby told Sharber that she would have to get it before January because they were going to sign the contract the first of the year. Sharber indicated that she planned to send for it. Maultsby gave her a piece of carbon paper, asking her if she felt that Ann Bartman was serious about the Union. The following day Maultsby again asked Shar- ber if she had sent for her union card yet. Sharber replied that she had written the letter, but had not mailed it, to which Maultsby advised that she had better get it off. This Sharber did within the next day or two. Conclusions The General Counsel contends that the above conduct of Maultsby constitutes interference with and restraint and coercion of employees within the meaning of Section 8(a)(1) of the Act. The Respondent, who elicited no testimony to deny the various incidents relied on by the General Counsel, asserts in effect that in context of existing bargaining nego- tiations these conversations were of the type to be expected, that Maultsby merely replied to employee questions, and that the information supplied by Maultsby had already been made known to the employees, including the prospect of a strike. Accordingly, the Respondent argues that Maultsby's conduct did not give rise to the kind of viola- tions that the Act was designed to correct, and, at best, was minimal. In support of its position, the Respondent elicited testi- mony from Superintendent DeRaad to the effect that dur- ing the preceding spring and early summer, prior to the election, all hourly employees had been invited to several meetings called by the Company at which employees were apprised of possible economic consequences of unioniza- tion and the obligation attendant upon union membership. Thus, according to DeRaad, employees were told that the Union could fine strikers for crossing picket lines, that eco- nomic strikers could be replaced, and that a union card was a binding legal document and if they signed they were sus- ceptible to fines by the Union. DeRaad also testified that in one or more of a dozen bargaining sessions held during this period between the Company and the union negotiating committee, Jim Kelly, Union secretary-treasurer, indicated that he would recom- mend-a work stoppage to the employees. Assuming, arguendo, merit to the assertion of the Re- spondent that the substance of certain matters covered by Maultsby in her conversations with employees was within the knowledge of employees generally, such does not pro- vide a license to engage in the type activity attributed to her. Nor, in fact, does the record substantiate counsel for Respondent's contention that Maultsby's discussion of un- ion matters was confined to answering employee questions. I find the following conduct to constitute interference, restraint, and coercion on the part of the Respondent: (a) Maultsby's asking Burrows if she were for or against the Union and whether certain girls belonged to the Union. (b) Maultsby's telling Burrows that she had told an- other employee, whom she knew was planning to join the Union, that if the girls crossed a picket line during a strike they would be fined by the Union. (c) Maultsby's telling employees that the Company would never agree to a closed shop and that it would be silly for them to join and pay dues to the Union. (d) Maultsby's telling employees that in the event of a strike the Company would never forget those girls who had recalled their union cards and continued to work for the Company. (e) Maultsby's telling Burrows that the Company had a list of girls who were union members. (f) Maultsby's asking Burrows on two occasions to at- tend a union meeting and to report back who were present. (g) Maultsby's threat to discharge Burrows if she found out who let the Union know "what we learned." (h) Maultsby's entire course of conduct in undermining the bargaining status of the Union by soliciting, encourag- ing, assisting, and aiding the employees to get their union cards back from the Union. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Holland American Wafer Co. is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters Union, Local No. 406, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Ind., is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed by Section 7 of the Act, the Respondent has engaged in, and is engag- ing in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. IV THE EFFECT UPON COMMERCE OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. HOLLAND AMERICAN WAFER CO. 119 V THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirma- tive action which is necessary to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:5 ORDER Respondent, Holland American Wafer Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union sympathies and the union membership of other employees. (b) Giving the impression of surveillance of employee union activity by telling employees that the Company has a list of union members. (c) Engaging in an anticipatory refusal to bargain by telling employees that the Company would never grant a union-security clause. (d) Asking employees to attend union meetings and to report back on who were present. (e) Threatening employees with loss of employment and discharge for telling the Union the extent of the Company's knowledge of employee union activity. (f) Making promises of benefit to employees for recall- ing their union cards and working in the event of a strike. (g) Undermining the bargaining status of the Union by soliciting, encouraging, assisting, and aiding the employees 5 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall , as provided in Sec 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes to get their union cards back from the Union. (h) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist General Teamsters Union, Local No. 406, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Ind., or any other labor organization, and to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in the labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Post in conspicuous places at its Grand Rapids, Michigan, plant, including all places where notices to em- ployees are customarily posted, copies of the attached no- tice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 7, shall, after being duly signed by an authorized representative of the Respondent, be posted by it, as aforesaid, immediately upon receipt thereof and maintained for at least 60 consecu- tive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, de- faced, or covered by any other material. (b) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith? 6 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 7 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read- "Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith."