Southern Wire and Iron, Inc.

820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 986 AND TO ALL EMPLOYEES OF MAX FACTOR & COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause Max Factor & Company to discriminate against employees in violation of Section 8 (a) (3) of the National Labor Relations Act as amended. WE WILL NOT give effect to the contract of June 13, 1956, with Max Factor & Company, or to any extension, renewal, modifi- cation or supplement thereof, or to any superseding agreement, unless and until Local 986, International Brotherhood of Team- sters, AFL-CIO, shall have been certified by the National Labor Relations Board as the representative of the employees of Max Factor & Company. WE WILL NOT in any other manner restrain or coerce employees of Max Factor & Company in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the National Labor Relations Act. LOCAL 986, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS , AFL-CIO, Union. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Southern Wire and Iron, Inc. and Construction and General Laborers' Union Local No. 438, International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO. Case No. 10-CA-2646. July 25,195 7 DECISION AND ORDER On December 20, 1956, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom 118 NLRB No. 100. SOUTHERN WIRE AND IRON, INC. 821 and take certain affirmative action, as set forth in the copy of the In- termediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report.' 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 Interme- diate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Southern Wire and Iron, Inc., Scottdale, Georgia, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in the Construction and General La- borers' Union Local No. 438, International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO, or in any other labor organization of its employees, by discharging them or in any other manner discriminating in regard to their hire or tenure of em- ployment or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. (b) Interrogating its employees concerning their union member- ship and activities; threatening discharge because of union member- ship and activities or because of refusals to reveal the names of union adherents; threatening arduous and unpleasant work for failure to inform on union activities and for failure to inform the Respondent why an employee's name was contained in a charge filed with the Board; threatening to engage in surveillance of union meetings or in other forms of surveillance; or instructing employees to inform on union members and promising reinstatement or financial benefits for such information. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join or assist the above-named Union, or any other labor organ- ization, to bargain collectively through representatives of their own I The Respondent excepts only to the finding that it violated Section 8 ( a) (1) and (3) by the discriminatory discharge of John Fowler. Respondent offered no testimony to refute the witnesses for the General Counsel. Contrary to the Respondent' s contention, we find that the pendency in a State court of a civil action brought by Fowler for damages allegedly sustained by reason of the acid tank incident here involved does not excuse the Respondent's failure to adduce contradicting evidence in a Board proceeding. 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended , the Board has delegated its powers in connection with this case to a three- member panel [ Chairman Leedom and Members Murdock and Jenkins]. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection, or to refrain from engaging in any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer John Fowler immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole in accordance with the Board's usual remedial policies (Chase National Bank, 65 NLRB 827; Crossett Lumber Company, 8 NLRB 440; F. W. Woolworth Co.) 90 NLRB 289) ; for any loss of pay he may have suffered since June 4, 1956, by reason of the discrimination against him. (b) Preserve ,and make available to the Board or its agents upon request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records relevant to a determination and verification of the amounts of back pay due to the complainants under the terms of this Order. (c) Post in its plants at Scottdale, Georgia, copies of the notice attached to the Intermediate Report marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of this Order as to what steps it has taken to comply herewith. 8 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by substituting for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act as amended (61 Stat. 136), was heard in Atlanta, Georgia, on November 14 and 15 , 1956, pursuant to due notice. The complaint, issued on July 18 , 1956, by SOUTHERN WIRE AND IRON, INC. 823 the General Counsel of the National Labor Relations Board,' and based on charges duly filed and served, alleged in substance (as amended at the hearing) that Re- spondent had engaged in unfair labor practices proscribed by Section 8 (a) (1) and (3) of the Act by discharging John Fowler on or about June 5 because of his union membership and activities and by engaging in various specified acts of interference, restraint, and coercion from April 12 to July 2. Respondent, by its answer filed July 26, denied the commission of unfair labor practices as alleged. All parties were represented by counsel and were afforded full opportunity to participate in the hearing and to file briefs and proposed findings of fact and con- clusions of law. Oral argument was waived; the General Counsel has filed a brief. At the close of the hearing, Respondent moved to dismiss on the ground that the charges had been filed after the representation petition in Case No. 10-RC-3544, that there had been no waiver of that proceeding, and that the Board could not proceed herein without such a waiver. Respondent's counsel stated he had no authority to support his position and he has filed no brief. The General Counsel interpreted the motion to relate to the fact that the Union had filed a waiver of charges for the purpose of enabling the representation case to proceed. As so interpreted, Aerovox Corporation (supplemental decision), 104 NLRB 246, 247, is dispositive of Respondent's motion. If the motion is interpreted literally, N. L. R. B. v. Howell Chevrolet Co., 204 F. 2d 79, 86 (C. A. 9) affd. 346 U. S. 482, is dispositive. Under any interpretation, the motion is hereby denied. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS; THE LABOR ORGANIZATION INVOLVED I find upon facts alleged in the complaint and admitted in the answer (i. e., annual shipments extrastate exceeding $500,000) that Respondent is engaged in commerce within the meaning of the Act; and I find on stipulation of the parties that the Union is a labor organization as defined in Section 2 (5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The General Counsel called some 14 employee witnesses who testified to numerous incidents of interrogation, threats, promises of benefits, and instructions to report the identities of, and otherwise to inform on, union adherents and activities. Most of such acts were attributed to Respondent's president, Charles Z. Borochoff, and to its supervisors, Kennedy and Pettus, and the remainder to foremen of less than supervisory rank under such circumstances that Respondent's responsibility was clearly established? Since Respondent offered no evidence to refute that testimony, much of which was cumulative and mutually corroborative, it is unnecessary to The General Counsel and his representative at the hearing are referred to herein as the General Counsel, and the National Labor Relations board as the Board. Southern Wire and Iron, Inc., is referred to as Respondent and as the Company, and the Charging Union as the Union and as Local 438. All events herein occurred in 1956. 'The Board found, in its Decision and Direction of Election in Case No. 10-RC-3544, that the foremen in question did not possess supervisory powers. Though accepting that finding here, the General Counsel contended that Respondent had held those foremen out as representatives of management and was consequently responsible for their conduct. I find that the evidence establishes that Respondent placed the foremen in such a position as to identify them with management in the eyes of the employees, giving them just cause to believe that the foremen were acting for and on behalf of management. International Association of Machinists v. N. L. R. B., 311 U. S. 72 ; Birmingham Post Co. v. N. L. R. B., 140 F. 2d 638 (C. A. 5) ; Harrison Sheet Steel Company, 94 NLRB 81, enfd. 194 F. 2d 407 (C. A. 7). Indeed, the foremen actually participated with Borochoff in some of his inquisitions, and they were otherwise so engaged in a parallel course of conduct, with such coincidence of acts of hostility as to justify in the minds of the employees unity and identification as between the foremen and management. N. L. R. B. v. Laister-Kauffman Aircraft Corp., 144 F. 2d 9, 15 (C. A. 8). Actually the evidence concerning the foremen's conduct is cumulative, requiring neither a broadening of the findings of unfair labor practices nor of the scope of the remedial order. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD summarize in detail the testimony of the individual witnesses ; it will suffice to find the ultimate facts which are established by the undenied testimony and to cite occasional examples of testimony to illustrate the. full flavor of the evidence and the flagrancy of the unlawful conduct. On April 12, the Union had distributed among the employees printed invitations to a unio>} "party" or meeting to be held on April 14. On April 13, Borochoff directed Helen Eubanks, a forelady in the upholstery department, and Bertha Mitchell, her assistant, to inform the girls in their department that if they attended the meeting they would be discharged and that he would know, or find out, whether they went. Eubanks and Mitchell complied, and Eubanks reported back to Boroch- off that she did not think he would have any trouble because she thought the employees were afraid to go to the meeting. Other similar orders and threats were repeated by Borochoff around April 16, 17 and 31, relating both to attending union meetings and talking with union representatives. In some cases the threatened penalty was expressed in terms of a vacation without pay, sending the employee home, or (in the case of Elijah Norrington) to "fire all the colored boys and have all white people working there." 3 On a number of other occasions (April 31, June 1, 4, 6, 8, 12, and mid-July) Borochoff, Kennedy, and Pettus questioned employees at length concerning their union membership and their knowledge of union activities, and directed them to find out what they could and to report what they had learned concerning the identity of the members and the leaders in the union drive. In some cases the instructions were implemented with promises of raises in pay and in some by threats of discharge or layoff or of more arduous work assignments. Foremen Memphis Heard, Otis Bryant, Henry Mitchell, Philip Cook, and Oscar Wilder were participating concurrently in a parallel course of conduct, sometimes with offers of money and sometimes with representations that Borochoff would pay substantial sums for information regarding the union activities and the identities of union members. Bertha Billingslea and Etheleen Welch testified also that around June 8 (after a layoff) Bryant, after questioning them concerning their knowledge of union activities, promised to see that they would get their jobs back if they would tell him what they knew. That the participation by the foremen was with Borochoff's knowledge was shown by the testimony of Mary Alexander and Della Tomlinson. Thus Alexander testi- fied that on June 4, Borochoff, after questioning her about signing a union card and about whether she knew of others who had signed, summoned Memphis Heard to continue the inquisition. Tomlinson testified that on June 8 (after a layoff) she returned to the plant pursuant to a letter from the Company. Borochoff questioned her at length in his office in Wilder's presence concerning why her name was on the charge filed with the Board and threatened to have her jailed unless she told the truth or to put her to work on the acid tank so that she would have to talk. Then, while Borochoff was present at least part of the time, Bryant, Cook, and Henry Mitchell also came in and urged her to tell Borochoff the truth and to tell on the others even if she did not tell on herself. Tomlinson testified further that Borochoff not only followed through on the threat of assigning her to more arduous work, but that he ordered Jesse (to whom she was assigned) to get her to talk or to frighten her into quitting inasmuch as he was unable to discharge her because her name was contained in the charge. It is concluded and found on the basis of the entire evidence that by interrogating its employees concerning their union membership and activities, by threatening discharge because of union membership and activities or because of refusals to reveal the names of union adherents, by threatening arduous and unpleasant work for failure to inform on union activities and for failure to inform Respondent why an employee's name was contained in a charge filed with the Board, by threatening to engage in surveillance of union meetings or in other forms of surveillance, and by instructing employees to inform on union members and promising reinstatement or financial benefits for such information, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. B. Discrimination-the discharge of John Fowler Fowler had been employed since 1953, and for over 2 years he had worked in the stockroom as a stock and receiving clerk, working directly under Borochoff. Fowler joined the Union in May 1956, and was active in attending meetings and in soliciting membership both before and after he joined. Though there is no evidence 3 Norrington and the other employee witnesses were colored. SOUTHERN WIRE AND IRON, INC . 825 that Borochoff was aware of Fowler's earlier participation in the organizational efforts, it did show that by June 1, Borochoff strongly suspected not only that Fowler was a union member but that he was a leader in the campaign. Thus Fowler testified (without denial) that on June 1, Borochoff asked him to find out what the girls in the upholstery department knew about the Union. Later on the same day, Borochoff sent for him to come to the office and there in the presence of Heard, requested Fowler to produce his driver's license. When Fowler handed over his billfold and cardcase, Borochoff looked through the bills and papers and said, "You're clean. Where's your union card?" Fowler replied that he did not have it. When Fowler reported to work on June 4 (the next workday), Borochoff first told him to stay on the platform 4 and that the first time he made a mistake he would be fired. Borochoff later came into the shop and directed Kennedy and Russell to take Fowler from the stockroom and put him on the acid tank. The acid tank work required gloves which Fowler did not have, and when he told Borochoff he needed a pair of gloves, Borochoff stated he did not have any but when he got some he would let Fowler know. Fowler was able to borrow a pair, but after a couple of hours the lender took them back. Fowler nevertheless worked the remainder of the day without gloves, despite the fact that his hands were burned by coming in contact with the acid. During that time Pettus called Fowler from the acid tank platform and told him: John, you've got yourself on the spot. You know you haven't got any business on that acid tank because you have asthma. Tell me the name of the people that are helping you organize the union . . . You know who they are; don't you? [Emphasis supplied.] When Fowler replied that he knew but would not tell on them and get them into trouble, Pettus continued, "You've got yourself on a spot. You'd better think it over and let me know." Fowler testified further that at the end of the workday Pettus asked him again if he had decided to tell the names of the people who belonged to the Union and Fowler replied that he had not. Pettus continued that the only thing for Fowler to do was to stop work, and that if he would do so, Pettus would try to get him 3 weeks with pay. Fowler refused, stating that he would not stop work and would not tell the names of the people who belonged to the Union. Fowler testified further that when he reported for work on the morning of June 5, Pettus again inquired whether he had decided to tell the names of the employees who belonged to the Union. When Fowler refused, Pettus stated that the only thing for Fowler to do was either to inform on the members of the Union, or stop work, or remain on the acid tank. Fowler stated he would not divulge the names of the union members and he would not stop work. Pettus then requested him not to agitate the union outside the shop, and Fowler replied that he would not promise anything, that he would work anywhere they wanted him to work, except that he would not work on the acid tank without gloves. Pettus then took Fowler's identification button and keys and told him to return on Friday and get his pay. Respondent offered no evidence to refute Fowler's testimony. Certain lines of cross-examination endeavored to imply that Fowler may have had some hand in a supposed theft of furniture, or that he was at least suspected of so having. However, further examination disclosed that the incident had occurred some 2 months before Fowler was discharged, that Fowler was guiltless, and that Borochoff had expressed a belief to that effect to the investigating detectives. Furthermore the subject was not again referred to, and it was not mentioned at the time of Fowler's discharge. The foregoing evidence shows plainly that on June 1 Respondent apparently suspected for the first time that Fowler was participating in, if not leading, the union activities, that on June 4 he was transferred to a more arduous job in an effort to make him divulge the names of employees who were assisting him in organizing the Union, or to force him to quit, and that after his repeated refusals to do either he was discharged by Pettus on the morning of June 5. Although no corroboration is necessary in view of Fowler's undenied testimony, the other unre- futed testimony summarized under section A, supra, showed that Respondent was engaged in an unremitting campaign of inquisitions designed to discourage the employees in their organizational efforts and to ferret out and to discharge those who were leading the organizational drive. 4 Fowler testified that it was impossible to perform all his duties as stock and receiving clerk on the platform and that he had never done so. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is therefore concluded and found that Respondent discharged Fowler on June 5 because of his membership in and activities on behalf of the Union, thereby dis- couraging membership in the Union. 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 Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of John Fowler, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 4. The aforesaid unfair labor practices having occurred in connection with the operation of Respondent's business as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and substantially affect commerce within the meaning of Section 2 (6) and (7) of the Act. THE REMEDY It having been found that Respondent engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirma- tive action, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. For reasons stated in Consolidated Industries Inc., 108 NLRB 60, 61, I shall recommend a broad cease and desist order. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in Construction and General Laborers' Union Local No. 438, International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO, or in any other labor organization of our employees by discharging them or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees concerning their union member- ship and activities or threaten to discharge them because thereof or because of refusal to reveal the names of union members; threaten arduous and un- pleasant work for failure to inform on union activities and for failure to inform us why an employee's name was contained in a charge filed with the Board; threaten to engage in surveillance of union meetings or in other forms of surveillance; or instruct employees to inform on union members or promise reinstatement or financial benefits to employees for such information. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to join or assist Construction and General Laborers' Union Local No. 438, International Hod Carriers' Building and Common Laborers' Union of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or 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 a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the National Labor Relations Act. THE HOLMES CONSTRUCTION CO. 827 WE WILL offer to John Fowler immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority and other rights and privileges , and make him whole for any loss of pay he may have suffered by reason of our discrimination against him. All our members are free to become or refrain from becoming . members of the above Union or any other labor organization. SOUTHERN WIRE AND IRON, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. The Holmes Construction Co. and William McMahon, its agent' and Harold A. Hanlon and Carpenters District Council of Madi- son County, Illinois, and Vicinity, affiliated with United Brotherhood of Carpenters and Joiners of America , AFL-CIO, and Local 633, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Parties to the Contract Carpenters District Council of Madison County, Illinois, and Vicinity, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Local 633, United Brother- hood of Carpenters and Joiners of America , AFL-CIO, and William McMahon , their agent and Harold A. Hanlon and The Holmes Construction Co., Party to the Contract. Cases Nos. 14-CA-1485 and 14-CB-378. July 05,1957 DECISION AND ORDER On January 11, 1957, Trial Examiner Max M. Goldman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report, attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the General Counsel filed exceptions to the Intermediate Report and supporting brief. The Respondents filed no exceptions. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman Leedom and Members Murdock and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. 118 NLRB No. 101.