JS Dillon & Sons Stores Co. v. NLRB, 7608.
Decision Date | 25 November 1964 |
Docket Number | No. 7608.,7608. |
Citation | 338 F.2d 395 |
Court | U.S. Court of Appeals — Tenth Circuit |
Parties | The J. S. DILLON & SONS STORES CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
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William G. Haynes, of Lillard, Eidson, Lewis & Porter, Topeka, Kan. (O. B. Eidson, Philip H. Lewis, James W. Porter, Charles S. Fisher, Jr., Peter F. Caldwell, Roscoe E. Long, R. Austin Nothern and Brock R. Snyder, Topeka, Kan., on the brief), for petitioner.
Anthony J. Obadal, Attorney, N.L.R.B. (Arnold Ordman, Gen. Counsel, N.L.R.B., Dominick L. Manoli, Assoc. Gen. Counsel, N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B. and Elliott Moore, Attorney, N.L.R.B., on the brief), for respondent.
Before PICKETT, BREITENSTEIN and HILL, Circuit Judges.
This case is before the court on a petition of the J. S. Dillon & Stores Co., Inc., to review an order of the National Labor Relations Board and on the Board's petition to enforce the order. The Board found that petitioner violated § 8(a) (1) of the Act, 29 U.S.C. § 158(a) (1), by interfering with, restraining, or coercing its employees in the free exercise of their rights guaranteed by § 7 of the Act, 29 U.S.C. § 157. The alleged unfair labor practices are predicated upon three acts, prior to a representation election, of alleged misconduct consisting of: (1) threats of reprisal if employees were unionized; (2) attempts to influence employees in the representation election by changes in working conditions; and (3) threatened deprivation of certain fringe benefits to part-time employees if a union contract were negotiated. The sole question is whether there is substantial evidence in the record as a whole to support the Board's order.
The petitioner operates retail food outlets in Colorado and Kansas, and a food warehouse at Hutchinson, Kansas. This dispute involves only the Hutchinson warehouse. The warehouse is made up of six separate departments; maintenance, trucking, general office, cafeteria, advertising and warehouse. The warehouse department is divided into shipping, receiving, grocery and produce functions. On February 15, 1963 the union1 filed a representation petition seeking to be designated the bargaining agent for all production, maintenance, warehouse and shipping employees, and the over-the-road truck drivers at the warehouse.
The alleged threats of reprisal made to the truck driver Bridgewater by Caywood, the supervisor of trucking, occurred during the course of a conversation between the two men in the latter part of February.2 Bridgewater testified that he was aware of the union's organizational drive at the time Caywood talked to him. He testified that Caywood indicated he had heard of union talk, and stated that "* * * " Bridgewater also said that Bridgewater said Caywood told him "" Bridgewater said that he "took that for granted," that Caywood was referring to a conversation they had "two or three years ago" at which time Caywood told him "that was the first thing he would fire a man for is talking union." There is no evidence that Caywood was referring to this particular statement. On cross-examination Bridgewater testified as follows:
The Dillon-Hobbick conversation which the Board also found constituted threats of reprisals, took place about the first of March, 1963.3 This meeting came about as a result of Hobbick's request at a welfare committee meeting to discuss some matters concerning only the girls in the repack department.4 She said that some of the girls had raised questions about vacation periods and about the possibility of a more regular work basis. These five employees were classed as regular part-time help because their employment depended upon the demand for produce. Hobbick testified that in response to an inquiry about their fringe benefits of insurance, vacation, and sick pay, they were told that to the best of Dillon's knowledge, no union could cover part-time help, and that with a union contract they could lose these benefits. Dillon testified that these five were the only part-time employees who presently received such benefits. Hobbick testified they were "told to weigh the pros and cons of anything we heard concerning the union, that the union doesn't always carry out everything they promise." Hobbick testified as to Dillon's statement in the following manner:
Harold Ryan, Personnel Director for the Company, testified with regard to the same meeting that the employees were "absolutely not" told that if the union became their bargaining representative they would lose their fringe benefits. He said they were told that if they were under a contract such as the company had in Colorado, the part-time employees would not receive such benefits.
Dillon testified that he told the five employees about the Colorado contracts, and stated that if the warehouse had the same type, "I thought they would be outside the contract." He denied telling them that they would lose fringe benefits if the union became their bargaining representative. On cross-examination, Dillon stated: "I told them that the contracts we had in Colorado, if these were to apply in Kansas, that I thought they would not come under the contract, but I didn't say they would lose anything." Actually, there is very little conflict in the testimony of Hobbick, Ryan and Dillon.
The third act which the Board found to constitute an unfair labor practice arose from an alleged change in working conditions when the company furnished new brooms, rubber mats, knives, and a radio to certain employees as a result of a request made during a welfare committee meeting. Hobbick testified that when the girls in the grocery warehouse asked for these items to aid in their work, that she (Hobbick) stated that if the company "could provide them with mats I asked if they could get us some." She said they received the requested mats about two weeks later. Hobbick also said that no one in her department had a rubber mat before, except when they bought their own. She said they have never had a radio.
Ryan testified that other departments had music and that the employees in the pricing department of the grocery warehouse wanted to know why they couldn't also. He said the mats were requested by the same department since increasing the number of workers, there were not enough mats to go around. Ryan stated that the additional knives and brooms were furnished for the...
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