J. G. Braun Co.

368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Therefore, no good purpose could be served in considering the validity of the Union's additional contention that its right to advertise to the public the Company's - alleged unfair labor practices constitutes a protected exercise of free speech guar- anteed by the Constitution of the United States. THE REMEDY Having found that the Respondent Union has engaged in unfair labor practices in violation of Section 8(b) (1);(A) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact , and upon the entire record, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local #98, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By picketing Piggly-Wiggly's Sterling, Illinois, store for the purpose of coercing and restraining the employees of said Employer, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1) (A) and Section 2(6) and (7) of the Act. 3. The violative activities of Respondent set forth immediately above, occurring in connection with the operations of the Company described in Findings of Fact 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. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL MEMBERS OF LOCAL #98 , RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT restrain or coerce the employees of Piggly-Wiggly 's Sterling, Illinois, store, in the exercise of the rights guaranteed to them in Section 7 of the Act, including the right to refrain from engaging in any or all of the activities guaranteed thereunder. LOCAL # 98, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Labor Organization. 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. J. G. Braun Company I and Local 781, Miscellaneous Warehouse- men Union, I.B.T. Case No. 13-CA-92988. January o9, 1960 DECISION AND ORDER On July 27, 1959, Trial Examiner James T. Rasbury issued his In- termediate Report in the above -entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- i The Respondent's name appears as amended at the hearing. 126 NLRB No. 7. J. G. BRAUN COMPANY 369 mending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recom- mend that the complaint be dismissed as to these allegations. There- after the Respondent and the General Counsel filed exceptions and supporting briefs. The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the entire record in this case, the Intermediate Report and the exceptions and briefs, and hereby adopts the findings, conclusions, and recommenda- tions 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 the Respondent, J. G. Braun Company, Skokie, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Local 781, Miscellaneous Ware- housemen Union, I.B.T., or any other labor organization, by discrimi- natorily discharging any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment except as authorized by Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (b) Threatening employees with a loss of bonuses if they join, become interested in, or engage in activities on behalf of the above- named Union, or any other labor organization. 2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [Members Rodgers , Jenkins, and Fanning]. , The General Counsel excepted to certain adverse rulings made by the Trial Examiner at the hearing. On request of the Respondent, the General Counsel supplied the Re- spondent with copies of affidavits of General Counsel's witnesses, Williams , McLaughlin, and Hamilton , who had testified with respect to the issue of whether Williams was dis- charged or had quit. Over the objection of the General Counsel, the Respondent's counsel was permitted to read into the record portions of the affidavits of these witnesses relat- ing to this issue, the stated purpose being to refresh the witnesses ' recollection. We find no error in this ruling of the Trial Examiner. The witnesses' testimony and not the quoted portions of the affidavits constituted the evidence . And the Trial Examiner, within his discretion , properly permitted counsel in cross-examination to read from the affidavit to refresh the witnesses' recollection. See Wigmore on Evidence, sections 764, 765. However, the Trial Examiner was in error in refusing General Counsel's offer to admit in evidence Williams' affidavit after a portion thereof was lead into the record by Respondent's counsel . Id. Sections 2094, 2102, 2113. However, the error was not prejudicial , particularly in view of our finding herein that it was not necessary to deter- mine whether Williams had quit or was discharged , as in either event , Williams had re- fused to perform a reasonable request by Respondent to temporarily take over the duties ,of foreman which refusal would constitute justifiable cause for Williams ' discharge. 554461-60-vol. 126-25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Interrogating its employees concerning their union member- ship, interests, and activities, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Local 781, Miscellaneous Warehousemen Union, I.B.T., or any other labor organization, to bargain collectively with representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from engaging in 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, as modi- fied by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Eddie McQuarley immediate and full reinstatement to his former or substantially equivalent position and make him whole for any loss of earnings suffered as a result of the discrimination against him in the manner set forth in the Intermediate Report in the section entitled "The Remedy." (b) Post at its warehouse in Skokie, Illinois, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reas- onable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due to and the rights of Eddie McQuarley under the terms of this Order. (d) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent discriminated against Johnnie Williams in violation of Section 8(a) (3) and (1) of the Act. ' In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted 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." J. G. BRAUN COMPANY APPENDIX NOTICE TO ALL EMPLOYEES 371 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, we hereby notify our employees that : WE WILL NOT discourage membership in or activities on behalf of Local 781, Miscellaneous Warehousemen Union, I.B.T., or any other labor organization, by discriminatorily discharging any employee, or in any other manner discriminating against our em- ployees in regard to their hire or tenure of employment, or any term or condition of employment except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WE WILL NOT threaten our employees with a loss of bonuses if they join, or become interested in, or engage in activities on be- half of the above-named Union or any other labor organization. WE WILL NOT interrogate our employees concerning their union membership, interests, and activities in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist Local 781, Miscellaneous Warehousemen Union, I.B.T., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and 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 Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Eddie McQuarley immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges enjoyed and make him whole for any loss of pay suffered as a result of our discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of Local 781, Miscellaneous Ware- housemen Union, I.B.T., or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. J. G. BRAUN COMPANY, 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. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding with all parties represented, was heard in Chicago, Illinois, on April 21 and 22, 1959, on complaint of the General Counsel alleging violations by J. G. Braun Company' of Section 8(a)(1) and (3) of the Labor Management Relations Act, hereinafter called the Act, and the answer of Respondent. The Respondent Company and the General Counsel submitted briefs. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent Company is a corporation duly organized under and existing by the laws of the State of Illinois, having a warehouse and its principal office at Skokie, Illinois. It is engaged in the business of supplying architectural metals to fabri- cators. The complaint alleges and the answer admits that during the calendar year 1957, a representative year, the value of products sold and transported directly to customers outside of the State of Illinois was in excess of $50 ,000. I find that the Respondent is engaged in commerce within the meaning of the Act. IL THE LABOR ORGANIZATION INVOLVED I find that Local 781, Miscellaneous Warehousemen Union, I.B.T., herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES A. Background Respondent has its principal office and warehouse in Skokie , Illinois, and also has a warehouse in New York. All material facts herein relate solely to the Skokie, Illinois, location . It purchases architectural metals from extrusion mills, steel rolling mills, and various stamping and casting companies . This material is then readily available in the warehouse and is sold and shipped on order to Respondent's cus- tomers. Ninety-nine percent of Respondent's sales come from catalogue sales; in other words, Respondent may be regarded as a mail-order house for architectural metals. When the orders are received by the office they are passed along to the warehouse employees and the material being purchased is taken from storage bins, packed, weighed, and addressed for shipping. At all material times herein, there were only five employees in the warehouse and one foreman. Jacob G. Braun III was vice president and secretary of the Respondent Corporation and the general ad- ministrative manager. Frequently Braun worked in the warehouse with the em- ployees seeing that orders were properly filled, packed, etc. Normally, however, Foreman Frazier would see that the orders were properly filled by checking the material against the order, the packing, addressing, etc. Sometime in either July or August 1958, representatives of the Union began contacting the employees at the jobsite in an effort to interest them in organizing for the purpose of collective bargaining and, of course, to join the Union. l At the hearing all parties agreed to delete the word "and" from the Company's name on all formal papers in order to reflect the Respondent's correct name. J. G. BRAUN COMPANY 373 B. Interference, restraint, and coercion Jacob Braun III testified that he asked his employees if they had joined the Union "not more than twice" during late August or September 1958 . This was after Braun had seen the union representatives at his plant , knew the nature of their visits, had seen union authorization cards on a desk in the warehouse, and had told some of the employees, "I don't see why you fellows want to give money [to the Union] to buy their Cadillacs with." Employees Williams, McQuarley, and McLaughlin each tes- tified that in late August or September Foreman Robert W . Frazier told the ware- house employees that if they signed union authorization cards they would lose their Thanksgiving and Christmas bonuses. While Frazier denied making such a state- ment, I credit the testimony of Williams, McQuarley, and McLaughlin and find that such a statement was made. These statements and the questioning of the employees concerning their union membership by Braun I find interfered with, restrained, and coerced the employees in the exercise of rights guaranteed them in Section 7 of the Act, and thereby the Respondent violated Section 8 (a) (1) of the Act. The General Counsel alleged that Respondent offered its employees economic benefits on condition that they cease engaging in union activities. While the record seems clear that Braun indicated to some of the employees that he would check the dockmen's rates for Teamsters , this Trial Examiner is not convinced from the testimony that such remark was made in a context that included a promise of benefit, or that such could be inferred , as would be violative of the Act. The inference that might be drawn from such a remark and thereby become violative of the Act exceeds that which this Trial Examiner is willing to do or finds necessary for a satis- factory disposition of the issues of this case. C. The discharge of Eddie McQuarley Eddie McQuarley started to work for the Respondent in July 1957. He began work in the small parts section or division of the warehouse where he was expected to assist in filling orders; however, his duties also included the performance of many personal errands for Jacob Braun III and two or three daily trips to the post office. While his interest in the Union was somewhat passive-as it was with all the em- ployees-it is clear that he signed a union authorization card on September 4, 1958, and mailed it to the Union. On the following day at the lunch hour, the matter of the Union was being discussed by the employees and McQuarley stated that he and Hamilton had mailed in their union authorization cards. Foreman Frazier was a participant in the conversation and heard McQuarley's remark. Hamilton, who is still an employee of Respondent, credibly testified that on that afternoon-Septem- ber 5, 1958-Jacob Braun III asked him if he had signed a union card and why. This query was directed to Hamilton around quitting time as Hamilton went to pick up his paycheck and at a time when Braun was talking to McQuarley. It is undis- puted that in Braun's conversation with McQuarley on September 5, 1958, at which time McQuarley was told he was to be laid off, the Union was discussed. The following testimony on direct examination was given by Braun: Q. What did you say? A. I told him that it [McQuarley's work] hadn't been overly satisfactory, and I mentioned certain instances that have already been brought up in the trial. Q. Did you talk to McQuarley in that conversation about the union or about his signing a card for the union? A. Yes, sir. I asked him about this because Mr. Frazier had advised me that he had signed a card. Q. When had Mr. Frazier so advised you? A. After I called Eddie on the P.A. system. Q. What did you say to McQuarley? A. Well I told Eddie I understood he had joined the union, and I didn't know why he hadn't advised me of it personally, and that I had decided to day him off, and in the case of laying him off that the union would probably take the stand that it was a case of laying him off because of union activities. Q. Did you say anything further about the union? A. Well, there is no sense in stating something I do not know. I can't re- member anything else at the present time. McQuarley testified that Braun called him into the office about 4:30 p.m. on September 5, 1958, ,and asked him, "Why did you do this to me?" McQuarley said, 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Do what?" Braun then said, "Sign for the union." At the conclusion of this conversation Braun told McQuarley that he could come in Monday, but that if work hand not picked up, he would be laid off. At the hearing Respondent advanced two reasons for McQuarley's layoff. First, incompetency, and second a decline in business. While the record indicates that McQuarley might very well have deserved criticism or warnings for carelessness or neglect in the performance of his work, it is void of any specific warnings of im- pending disciplinary action by the Respondent prior to his layoff. When this is considered in conjunction with the second reason given by Respondent for his layoff and the complete failure of Respondent to come forward with any information to prove a decline in business, this Trial Examiner can only conclude that it was McQuarley's act of signing the union authorization card that actually precipitated his layoff.2 The Trial Examiner feels that this conclusion is strengthened by the undisputed fact that considerable discussion concerning the Union occurred at the time of the layoff discussion between McQuarley and Braun, all of which was wholly irrelevant and unnecessary, if the reasons advanced by Respondent at the hearing had been the true reasons for McQuarley's layoff. The entire tenor of the letter of recommendation furnished McQuarley by Respondent following his layoff further discredits Respondent's incompetency argument even for an employer that wished to be considerate of a discharged employee.3 Credulity is stretched to the breaking point for this Trial Examiner to comprehend what sudden upsurge of business Jacob Braun III thought might develop over the weekend when he told McQuarley on Friday that he might come back Monday, but that if business had not improved he was going to lay him off. I therefore find the layoff of Eddie McQuarley on September 8, 1958, by the Respondent to have been motivated and prompted by the union activity of McQuarley and a violation of Section 8(a) (3) and (1) of the Act. D. The termination of Johnnie Williams Johnnie Williams had been employed by Respondent since late 1951 or 1952. He worked in what was referred to as the long parts department of the warehouse, filling nand packing orders. Williams, like some of the other employees, had signed a union authorization card While the testimony of both Respondent's witnesses and the General. Counsel's witnesses are something less than crystal clear as to exactly what transpired between Williams and Jacob Braun III I find that Braun requested William to temporarily take over the duties of Foreman Frazier which Williams declined to do without any explanation to Braun. According to Williams, at the time Braun told him to take over the foreman's duties, Braun explained that Foreman Frazier was going to be away for awhile. Other than a suggestion from Williams that another employee perform the work, Williams offered no explanation as to why he did not want or could not fulfill the job. Braun indicated that Williams would have to do the work or he would not have a job. Williams walked away and on the next day, September 9, 1958, Williams picked up his final paycheck. The General Counsel contends that Respondent offered the foreman job to Williams as a "ruse," knowing full well that he would be unable to satisfactorily perform the duties and thereby give the Respondent a reason to discharge him or force the employee to quit. In an effort to have this Trial Examiner draw such an inference, the General Counsel went to great lengths to show that an ability to read and write was a necessary prerequisite for the foreman's job; that Williams could not read or write; and that the necessity or reason for Williams taking over the duties of the foreman did not exist. Undoubtedly Williams did not read or write well, but in response to General Counsel's question, "Are you able to read and write?" Williams answered, "No, not good." [Emphasis supplied.] The facts are that he had satisfactorily performed his job for Respondent for a number of years and was the most senior of the warehouse employees. There was no proof that Respondent 2 General Counsel's Exhibit No. 8, reflecting gross dollar sales of Respondent by months from July through December 1958, Indicates that September 1958, the month in which McQuarley's layoff occurred, was the largest dollar sales month during the last half of 1958. 8 See General Counsel's Exhibit No. 3, wherein Respondent stated that McQuarley's work was "very satisfactory and we were pleased with it." J. G. BRAUN COMPANY 375 actually knew that he did not read and write sufficiently well to perform the job. I do not find it necessary to determine whether Williams' severance from the Respondent's payroll was a quit or a discharge. In either event he failed to perform a reasonable request by the management and in my opinion the General Counsel has failed to show by a preponderance of the proof that Respondent's action toward Williams was motivated by the antiunion considerations. I am not convinced that Respondent's conduct was a "ruse" or constructive discharge in violation of the Act, but rather, find that the separation of Johnnie Williams from Respondent's payroll on September 9, 1958, was for valid and legal reasons. The Trial Examiner shall therefore recommend that the allegation in the complaint alleging the discriminatory discharge of Johnnie Williams by the Respondent be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent as set forth in section III, above, occurring in connection with the operation of Respondent as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent discriminatorily discharged Eddie McQuarley. The Trial Examiner will recommend that the Respondent offer to Eddie McQuarley immediate and full reinstatement to his former or substantially equivalent position, without prejudice to seniority or other rights or privileges, and make him whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement, less his net earnings during said period (Crossett Lumber Company, ^8 NLRB 440, 497-498), said backpay to be computed on a quarterly basis in the manner estab- lished by the Board in F. W. Woolworth Company, 90 NLRB 289. Since I have found that the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in the Act, I am convinced that the unfair labor practices committed are related to other unfair labor practices proscribed and that the danger of their commission in the future is to be anticipated from the Respondent's conduct in the past. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, I will recommend that the Respondent cease and desist from in any manner infringing upon the rights of employees guaranteed by the Act. May Department Stores, d/b/a Famous-Barr Company v. N.L.R.B., 326 U.S. 376, 386-392; Pure Oil Company (Illinois Producing Division), 90 NLRB 1661, 1663. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discriminatively separating employee Eddie McQuarley from the payroll on September 8, 1958, as found above, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent did not discriminatively discharge Johnnie Williams, or promise the employees economic benefits as alleged in the complaint. [Recommendations omitted from publication.]