International Chemical Workers Union

772 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD jobs if the Union were successful in the election. That the threatened. repercussions for voting a union into the plant were to be precipi- tated by the Employer's customers, rather than by the Employer, did. not serve to neutralize the repressive character of the Employer's letter, nor alleviate its coercive impact on the employees. It is ob- vious that there can be no more serious type of interference with a free election than a threat that the selection of a union may result in a Joss of employment. The difference in effect, if any, between the sit- uation where the threat is that the employer himself will take action to jeopardize employment and that where, as here, the threat is that the customers will cause a loss of jobs by taking away business, if a union is selected, is one of degree only. We cannot believe that the law contemplates that an employer is privileged to misrepresent to his employees that he will,lose the business of his principal customer with a resulting loss of jobs if they select a union, in order to defeat a union in an election. To hold that such conduct is privileged is to .hand a powerful weapon to unscrupulous employers by which to de- .feat the free choice of collective-bargaining representatives. The Employer's letter having injected a substantial coercive ele- ment into the election contest, thereby seriously impairing the free choice of the employees, consistent with existing precedent 14 the,elec- tion should be set aside. 14 The Palmouth Company, 114 NLRB 896; New York Shipping Association and Its Members, 108 NLRB 135; The Diamond State , Poultry Co., Inc., 107 NLRB 3; United Air- craft Corp., 103 NLRB 102. International Chemical Workers Union , AFL-CIO, and Its.Local No. 467 and James D. Pendergrass, Charging Party. Case No. 13-CB-316. March13,1956 DECISION AND ORDER On January 12, 1956, Trial Examiner. C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set ' forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the General Counsel filed exceptions to supporting brief. the Intermediate' Re'port'toget1ier with a 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 Inter- mediate Report, the exceptions and brief, and the entire record in the 115 NLRB No. 122. INTERNATIONAL CHEMICAL WORKERS UNION '773 case, and hereby tidopts 't'ie findings, conclusions, and recommenda- tions contained in the Intermediate Report.' [The'Board dismissed the complaint.]' The issue in this case is one of credibility.* The Trial Examiner credited the testimony of the Respondent's witness, Mary Rainwater, and•disciedited that of James Pendergrass, the Charging Party The General Counsel has excepted to this credibility - finding, ,especially because it is based in part on the Trial Examiner's observation of•Pendergrass not only while testifying , but also while listening to the testimony of Rainwater The preponderance of all the relevant evidence does not justify overturning the Trial Ex- aminer 's credibility resolution Ftesidard Dry-Wall-Pioditcts, Inc., 91 NLRB 544, 54.5, enfd. 188 F 2d 362 (C A 3) Further, the Tiial Examiner did not err as a matter of law in considering on the issue of credibility Pendergrass ' demeanor in the courtroom while listening to Rainwater 's testimony . 3 Wiginore , Evidence ¢ 946 (3d ed . 1940) ,Chrestae v. Eager, 129 Conn 62 , 66, 26 A. 2d 352, 354. INTERMEDIATE REPORT STATEMENT OF THE CASE A charge having been duly filed and served , a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor -Relations Board, a hearing involving allegations of unfair labor -practices in violation of Section 8 (b) (1) (A ) and (2 ) of the National Labor Relations Act, as amended, 61 Stat. 136, was held in La Porte, Indiana, on December 6, 1955, before the Trial Examiner. . As to unfair labor practices , the complaint alleges, in substance , that in December 1954, the Respondent caused his Employer, the , American Safety Razor Corporation, discriminatorily to discharge James D. Pendergrass in violation of Section 8 (a) (3), and thereby restrained and coerced employees in the exercise of their rights under the Act. At the opening of the hearing General Counsel accepted , in lieu of a written answer, an oral answer denying the commission of any unfair labor practices on the part of the Respondent. At the hearing General Counsel and the Respondent were repre- sented by counsel, were afforded full opportunity to be heard, to examine and cross- examine witnesses , to introduce evidence pertinent to the issues , to argue orally upon the record, and to file briefs and proposed findings of fact and conclusions of law. Briefs have been received from General Counsel and the Respondent. Ruling upon the Respondent's motion to dismiss, reserved at the conclusion of the hearing, is disposed of by the following findings, conclusions , and recom- mendations. . Upon the entire record in the case , and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER INVOLVED American Safety Razor Corporation, Kingsbury Division, herein called the Em- ployer, is a Virginia corporation operating as a division of the American Safety Razor Corporation. The Kingsbury Division is a contractor-operator of a Government- owned shell-loading plant located at La Porte, Indiana, where it is engaged in the manufacture of shells and various other military items for the United States Gov- ernment. In the course of its business and at all-material times the Employer causes various military items made by it to be transported in interstate commerce from its La Porte, Indiana , plant, into and through States of the United States other than Indiana. The value of such items thus shipped is more than $50,000 annually. The Employer involved in engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Chemical Workers Union,, AFL-CIO, -and its Local , No. 467 are labor organizations admitting to membership employees of the Employer. 774 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES James Pendergrass , the Charging- Party, was 'discharged by the Employer on De- cember 30, 1953 , after a written demand for his discharge , dated December 14, 1953, was received by the Employer from he Respondent Union. In its letter of demand the Respondent claimed that Pendergrass had failed to comply with article V of the contract between itself and the Employer. -There is no dispute between General ,Counsel 'and the Respondent as tothe legality of the contractual provision invoked,by the Union . - In essence it required, employees to .remain . members of the Respondent in good standing , as a condition ofemploy- ment. To remain a member in good standing an employee was required to pay dues. According to the Respondent's constitution any member '2 ,months in arrears was declared "in bad standing." ' , • ' I I 1 ' 1 • 1 . Nor.is there .any dispute between the -parties as 'to the fact that in December-at the time the Respondent demanded the employee 's discharge-Pendergrass was several months delinquent in payment of his dues. As a witness the former em- ployee frankly admitted the fact. • I - - ' 1 .1 The sole issue is one of fact : whethe' of not, before his actual` discharge' on December 30, 1953 , Pendergrass made a bona fide tender to the Respondent, or its agent, of his delinquent dues, or,any ages ..,, If-he,did,, both counsel in effect agree that the Board's Supplemental Decision and Order in Aluminum Workers Interna- tional Union , Local No. 135, AFL, 112 NLRB '619; is' controlling. There the Board said, overruling earlier decisions , that ". . . we hold.that a full and unqualified tender made anytime prior-to actual discharge , and- without regard as. to when the request for discharge may have been made,- is a proper tender: and a subsequent discharge based upon the request is unlawful."' -" The required fact' must bet obtained - from'`a1 res`olutioii of a sharp c'oiiffict in 'testi- mony -and the consideration of certain `suirotinding circumstances , evidence of which is uncontroverted. - Pendergrass testified that each night of December 28, 29 , and 30, before . hisactual discharge, he offered his dues to'the'union steward, Mary Rainwater, but that on the first two occasions she'would not accept them for the stated reason that,she had no receipts-with her; and that on December 30 she` laughed at him; said "she 'did not have any way for me to pay my dues," and told him he might be "terminated." Pendergrass further said that on December 29 'he also offered to sign a "checkoff slip" (to have the Employer, deduct his dues- from his pay) but that Rainwater refused to give him a slip' and told him she would `rather `have him pay her. ' On the other hand; Rainwater flatly ' ]lenied that Pendergrass offered her his dues on the dates claimed by him=or at any other time . According to•her testimony 'her only contact with Pendergrass after he gave her his, initiation , fee in August 1953 was sometime in November or December, after she had been given a list of delinquent members by a union official, Edward Mansbury . She then approached Pendergrass, told him she had this list and was collecting dues, and asked if he wante'd'to sign a checkoff slip or talk with Mansbury . Pendergrass replied, according to her , that he "wasn't paying no sonofabitch no dues." She replied that if that was the, way, he felt he should "settle it in the union hall with Mr. Mansbury." Having observed both witnesses in a small room, not only while they testified, but also as each heard the other testify; "the 'Trial Examiner was persuaded by their demeanor at the hearing that Rainwater was the more-truthful witness. Although Pendergrass was recalled, in rebuttal , to declare, "No, I did not call her an SOB," when _she, as a witness, quoted his words he ,evaded her direct and challenging look at him. And, as the record shows, after relating ,that she had told,him to see the union official, she addressed herself directly to Pendergrass and said, "I-smiled and ,Walked'away,'isn't that right? ' ` t' . ' t -', Also of 'bearing upon the credibility 'isstie, in the opinion of the Trial Examiner, is the circumstance revealed • by • Pendergrass ' own testimony, , that upon being told by a company official on December 30 that he was "terminated ," he merely told that official that he "wanied'fo-pay" his union dues. So far as his testimony reveals, he made no protest `that he 'previoti§ly had offered; on several, occasions, his dues to the steward. • Finally, from his own account'of his visitto the union office;)immediately after his discharge, it does not appear-that eyen there did,he,claim to have made any effort on that or the preceding 2 evenings to pay Rainwater his dues. Pendergrass„was, an intelligent,, articulate witness, in his.own testimony admit- ting that he had been well aware of his, obligations as a union member. Had he in fact actually tendered his dues to Rainwater, at any time, it is reasonable to believe that he not only would have announced this fact to management upon being discharged but also to the union official after the discharge . And had he made any J. W. REX COMPANY 775 such claim, to either official , it is reasonable to believe. that one or the other would have made some investigation of it. In short, on the basis of the preponderance of credible testimony in the record, the Trial Examiner concludes and finds that Pendergrass made no "full and un- qualified tender" of dues at "anytime prior to" his actual discharge. It follows, from the Board decision above quoted , that in demanding and causing Pendergrass' dismissal, the Respondent Union has not violated the law. Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAw 1. The Employer is engaged in commerce within the meaning of Section 2 .(6) and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Respondent Union has not engaged in any unfair labor practice in violation of Section 8 (b) (1) (A) or (2) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in the case, the Trial Examiner recommends that the complaint against the Respondent be dismissed. J. W. Rex Company and United Steelworkers of America, AFL- CIO.' Case No. 4-CA-1231. March 13,1956 DECISION AND ORDER On October 11, 1955, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceeding finding that the Respondent 2 had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report, a supporting brief, and a mo- tion to adduce additional evidence.3 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 'The AFL and CIO having merged, we are amending the identification of the Union's affiliation. 2 AS hereinafter set forth, we find the J. W. Rex Company, as it is presently constituted, to be the Respondent in this proceeding. 3 The only purpose of the additional evidence sought to be adduced by the Respondent's motion filed with the Board subsequent to the issuance of the Intermediate Report is to show, that the certified union has disclaimed representation of all the employees of the merged corporation comprising the unit found appropriate. The proffered evidence does not, however, amount to an unequivocal disclaimer of the right to represent the accretion, flinch less a disclaimer to represent a majority in the certified unit. The fact that the proffered evidence would tend to prove simultaneous efforts to organize the accretion em- ployees Is plainly inconsistent with any statement that it does not seek to represent this group. The Board has held that where a union engages in conduct inconsistent with its express disclaimer, the disclaimer is equivocal and Ineffective. McAllister Transfer, Inc., 105 NLRB 751. Under the circumstances , since the proffered evidence could not , even if proved, affect the Board' s determination of the particular matter, the motion to reopen the record is therefore denied. balla8 Concrete Company, 102 NLRB 1292. 115 NLRB No. 120.