Walls Manufacturing Co., Inc.

WALLS MANUFACTURING COMPANY, INC. 487 Walls Manufacturing Company, Inc. and International Ladies Garment Workers Union, AFL-CIO. Case No. 16-CA-1226. August 5, 1960 DECISION AND ORDER On March 2, 1960, Trial Examiner James T. Rasbury issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices. There- after, the Charging Party and the General Counsel filed exceptions to the Intermediate Report with supporting briefs. 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 the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, insofar as they are consistent with this Decision and Order. We find, for the reasons stated by the Trial Examiner, that the Re- spondent did not discharge Mary Akey in violation of Section 8 (a) (3) of the Act for engaging in activities on behalf of the Union. Ave also agree that the Respondent did not violate Section 8(a) (1) by dis- charging Akey because she wrote a letter dated January 6, 1959, to the State health department concerning alleged unsanitary conditions in the Respondent's restroom. However, our agreement with the latter finding of the Trial Examiner is based on reasons other than those stated by the Trial Examiner. The Trial Examiner found that the writing and sending of the January 6 letter was neither protected, nor concerted, activity within the meaning of Section 7 of the Act. We find, however, that Akey's activity was in fact concerted activity within the Act's meaning. We base this finding on the uncontradicted and credited testimony of the two other employees that they approved Akey's letter before it was mailed, although they did not sign it. Nevertheless, we find further that the facts do not warrant attributing to the Respondent's knowl- edge, or reason to believe, that the writing or sending of the letter was a concerted activity. Prior to her discharge, Respondent had knowl- edge only of the letter, which was signed by Akey alone, and it was not until after she had been discharged that Akey for the first time indi- cated to the Respondent that she had written the letter on behalf of other people. In order to sustain a finding of an 8(a) (1) violation based on dis- charge, it is necessary to establish that at the time of the discharge the employer had knowledge of the concerted nature of the activity for 128 NLRB No. 60. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which the employee was discharged .' We find no evidence in this record to warrant attributing such knowledge to the Respondent.' We shall therefore dismiss the complaint in its entirety. [The Board dismissed the complaint.] Members Bean and Fanning took no part in the consideration of the above Decision and Order. I Myers Products Corporation, 84 NLRB 32 ; N.L.R.B. v. The Office Towel Supply ConS- pany, Incorporated, 201 F. 2d 838 (C A. 2), setting aside 97 NLRB 449 See also N.L R.B. v. Westinghouse Electric Corporation (Ansoivia Plant), 179 F. 2d 507 (C.A. 6), setting aside 77 NLRB 1058. In view of our disposition of the complaint on this ground , we find it unnecessary to pass on the Trial Examiner's finding that the activity here involved was or was not protected activity. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding with all parties represented was heard in Cleburne , Texas, on October 28,and 29, 1959, upon complaint of the General Counsel, alleging violation by Walls Manufacturing Co., Inc, herein called the Respondent , of Section 8(a) (1) and (3 ) of the Labor-Management Relations Act, as amended , herein called the Act, and the answer of Respondent . The attorneys representing the Respondent, International Ladies Garment Workers Union, AFL-CIO, herein called the Charg- ing Union, and the General Counsel submitted helpful briefs which have been care- fully considered herein. Upon the entire record in the case, the briefs filed, and my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Walls Manufacturing Co., Inc., a Texas corporation with its principal office and place of business at Cleburne , Texas, is engaged in the manufacture, sale, and dis- tribution of clothing . In the course and conduct of its business it operates a plant at Cleburne from which it has manufactured and sold clothing valued in excess of $50,000, which sales and deliveries were made to points located outside the State of Texas during the 12-month period immediately prior to the issuance of complaint herein . I find that the Respondent is engaged in commerce within the meaning of Section 2(6) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Ladies Garment Workers Union , AFL-CIO, hereinafter referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE A. The facts The complaint alleges that the Respondent discharged Mary Akey on January 14, 1959, for the reason that she joined or assisted the Union or engaged in other con- certed activities for the purposes of collective bargaining or other mutual aid or protection and the Respondent thereby violated Section 8(a)fl) and ( 3) of the Act. Certain background evidence was permitted by the Trial Examiner and should be related here in order to adequately see the entire picture, but none of the Trial Examiner's findings are based on events occurring more than 6 months prior to the filing of the charge. ' Mary Akey had been active in the Union 's organization cam- paign which began in June 1957. She obtained a number of authorization cards from fellow employees and some of the early organizational meetings were held in her home. The Respondent either knew or had reason to know of Mary Akey's I General Teamsters, etc, Local 912, et al (H A Rider if Sons), 120 NLRB 1577, 1579. WALLS MANUFACTURING COMPANY, INC . 489 interest and activity on behalf of the Union because a handbill or "flyer" dated November 5, 1957, was distributed at the door of the factory urging the employees to vote "yes" for the Union (General Counsel's Exhibit No . 2). This handbill had the pictures and names of the employees ' organizing committee prominently displayed and Mary Akey's name and picture appears thereon . On November 6, 1957 (Case No. 16-RC-2167, unpublished ), an election was held to determine the employees' wishes concerning the selection or rejection of a collective-bargaining agent. Objections relating to the conduct of this election were filed on February 25, 1958, and the Board ordered a new election held . On March 26, 1958, the Union withdrew its petition for an election. Mary Akey testified that she continued to be active on behalf of the Union in the latter part of 1958 by soliciting and securing authorization cards from the employ- ees. However, there is no credible evidence in the record that Respondent had knowledge of such continued activity by Mary Akey and no basis for a finding that Respondent might reasonably have concluded that Mary Akey continued her union activity into the latter half of 1958 .2 I find, because of the complete lack of knowl- edge by the Respondent of Akey's union activity and because of the credited reason advanced by Respondent for her discharge which will be further discussed herein, that Mary Akey was not discriminatively discharged in violation of Section 8(a)(3) of the Act.3 This finding, however, does not dispose of the case , but merely enables us to direct our attention .to the more important 8 (a) (1) allegation . General Counsel has sought to show that Mary Akey was discharged because of a letter that was written by her on behalf of fellow employees in which she gave vent to objectionable working con- ditions and thereby Respondent violated the Act, because Akey was engaged in "concerted activity for . . . mutual aid or protection" that is within the protection of the Act. There is testimony in the record by Mary Akey, Ruby Pogue, Marie Mullens, and Henrietta LeDanois that in June or July 1958 a number of the employees frequently voiced among themselves their "gripes" concerning the unsanitary con- ditions of the ladies restroom , as well as the lack of heat in the winter and the excessive heat in the summer in the restroom .4 These "gripes" were generally voiced informally during the lunch hour , but out of these "gripe" sessions a letter was written by Mary Akey dated July 2, 1958, to the State department of health complaining about the unsanitary conditions of the toilet facilities at tite Respondent's plant 5 The author of the July 2 letter was not revealed to the Respondent, but local health authorities did advise Respondent of the receipt of an official complaint. About this same time an employee named Henrietta LeDanois voiced her com- plaints concerning the unsanitary conditions of the restroom facilities directly to Walter Pau who was then production manager for Respondent . While I do not regard it as material or relevant in deposing of the issues here, it should be noted that the gravamen of LeDanois' complaint was directed toward the failings of her fellow women employees as much or more than it was toward the Respondent. 'This Trial Examiner does not credit Mary Akey 's testimony except in some areas where her testimony is undisputed or is corroborated by other witnesses On cross- examination she was vague and rambling in her responses . She was in error concerning a vent in the ladies restroom , she grossly exaggerated the time consumed in the discharge interview ; and she testified she secured an authorization card from Pauline Lyons and Mozell Williams Pauline Lyons had no recollection of ever signing an authorization card and Mozell Williams testified that Mary Akey was not present when she signed a union card These are but a few of the inaccuracies in Mary Akey' s testimony 3It is a well-settled principle that employer knowledge-either directly or as a reason- able inference under all the circumstances-is an essential ingredient to sustain an 8(a) (3) violation of the Act. See Marlon Mills (Dmision of M-unssngioear, Inc.), 124 NLRB 56; Union News Company, 112 NLRB 420, 423 * The gripes generally concerned the failure to provide adequate disposal facilities for sanitary napkins , the failure of the employees to properly utilize the inadequate cardboard boxes provided , the frequent absence of paper towels , the scarcity of washbasins , the lack of hot water, and the shortage of commodes s See General Counsel's Exhibit No . 4. This exhibit was first rejected for the reasons that it did not occur within the 10(b) period and the relevancy , even for background purposes, was not apparent at the time offered ( The charge in this case was filed March 4, 1959.) Similarly the General Counsel offered to prove by testimony of Akey that the July 2, 1958, letter written by Akey was a "concerted " activity. The rejected letter was later received and the offer of proof is hereby received for background material only and no findings herein are based on either the letter or the offer of proof. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is undisputed evidence in the records that Respondent had taken certain preliminary steps toward improving the restroom facilities nearly a month before Akey's July 2 letter to the State health department was written. Again the evi- dentiary significance of these last related events are only material as an aid in obtaining a proper focus of the entire mosaic. Dr. Talbert F. Yater, a practicing physician who was also the county health officer in July 1958, testified that he received notification of the complaint con- cerning Respondent's plant; that he contacted Respondent and sent it a copy of the pertinent health regulations; and that the latter part of July or during August 1958, "I went out [to Respondent's plant] and satisfied myself that everything was as the ruling [the State health regulation] had said it should be and it was in very good condition and I felt that it satisfied all sanitary and health regulations." The record clearly establishes that during August 1958 Respondent built a new restroom, reworked and repaired the old restroom, and placed metal step-on trash containers in each commode for the disposal of sanitary napkins. Lockie Mae King, whom I credit as a forthright honest witness, testified that she was a janitress em- ployed by Respondent and that since the construction of the new restroom it is her daily routine to scrub and clean both ladies' restrooms, empty the trash containers, and replenish the paper towels and soap dispensers. It is against this backdrop that we finally approach the occurrence of events that are relevant and material evidence for the disposition of this case. Mary Akey wrote the following letter dated January 6, 1959, which I set forth in full because it provides the basis for her discharge by Respondent. 948 E. Henderson Street, Cleburne, Texas, January 6, 1959. Subject: Sanitary Conditions Walls Mfg. Co., Cleburne, Texas MR. MARTIN C. WUKASH, P.E., Acting Director, Division of Occupational Health, Department of Health, Austin, Texas. DEAR SIR: Your letter of July 16, 1958, in answer to mine in regards to above subject. I believe that Walls have had ample time to make an effort to correct the unsanitary conditions now existing in this establishment. However, little has been done in that direction. Walls only action was to build a toilet. There are no heating facilities in the toilet, and recently the temperature was below freezing in this toilet. There are no covered disposal receptacles for lunch sacks, etc. There is no sanitary place for employees to eat their lunch. The toilet is cleaned once each week. No hot water, no dressing rooms. There approximately two hundred (200) females working in this plant, and it is apparent that Walls is financially equipped to comply with Occupational Health Regulation No. 2. Yours truly, MRS. MARY AKEY. I am convinced from the testimony of Ruby Pogue, Marie Mullens, and Mary Akey that the employees continued to informally and casually voice their "gripes" among themselves about working conditions even after the major renovations instituted by the Respondent in the summer of 1958. This is not unusual, however, and the employee that does not occasionally voice some complaint about his job is indeed a rare bird. I have serious doubts that such casual "gripes" ever attained the dignity of concerted activity. However, according to Ruby Pogue and Marie Mullens, out of this informality, Akey wrote a letter which they did not sign, but did approve. 9 See Respondent's Exhibit No 4 consisting of minutes of the board of directors meet- ing dated June 4, 1958, which reads in part "It was noted that authorization had been made on the addition of additional restroom facilities, and that work was to begin on them just as soon as the workmen could get to the job This addition was recommended by all members of the board." WALLS MANUFACTURING COMPANY, INC. 491 Following the January 6 letter, Dr. O. T. Smith, Jr., a practicing physician who was then the Cleburne, Texas, city health officer, inspected Respondent's plant on January 12, 1959, and found "in my opinion that they had met the standards that appear in the Occupational Health Regulation No. 2, issued by the State Health Department." Dr. Smith advised the State department of health by letter dated January 13, 1959, that he had inspected Respondent's premises on January 12, 1959, and found it in compliance with the applicable State health regulations (see General Counsel's Exhibit No. 14). Dr. Smith was less discrete than Dr. Yater had been and showed Respondent a copy of Akey's letter to the health department. On January 14, 1959, the Respondent's vice president in charge of production, Bill Finnell, called Mary Akey to his office at quitting time and advised her that he "was going to have to let her go because apparently she wasn't satisfied with our working conditions and especially our sanitary conditions and I thought it best for everybody concerned if she would hunt her a job elsewhere." According to Fin- nell's testimony, which I credit not only because it was corroborated by Hazel Whitt and Clara Nickell, but also because of his own demeanor and candidness in responding to questioning, Akey asked if that meant she was fired. When told it did, Akey asked, "Well just why am I being fired?" Finnell then testified that he responded, "So I told her that apparently she wasn't satisfied with our facilities and it didn't look like she was ever going to be and she had written a letter to the Health Department in Austin in which she had made some statements that were certainly not true and we just couldn't stand for that kind of business at all." B. Legal considerations Thus the issue in this case is rather narrowly drawn. Mary Akey was discharged by Respondent because of her January 6, 1959, letter to the State department of health? The evidence in this record is entirely too thin to attribute any knowledge of union activity on behalf of Mary Akey to this Respondent and, as indicated previously, I shall recommend dismissal of the General Counsel's Section 8(a) (3) allegation. However, both General Counsel and the Charging Party's attorneys argue rather persuasively in their briefs that Akey's letter was "concerted activity," written for and on behalf of several other fellow employees, for "mutual aid," and her discharge because of this concerted activity was an interference proscribed by Section 8(a) (1). The Charging Party's attorney thereupon cites N.L.R.B. v. The American Thread Company, 210 F. 2d 381 (C.A. 5), enfg. as modified 101 NRLB 1306; and Salt River Valley Water Users' Association v. N.L.R.B., 206 F. 2d 325 (C.A. 9), enfg. as modified 99 NLRB 849. While the cited cases touch upon the issues raised herein they do not provide the answer. American Thread is cited for authority that the activity need not go directly to the employer. But the Trial Examiner said in the American Thread case at page 1325, "attendance at this hearing [a Senate investigating committee] was merely incidental to other concerted activities in which they engaged both before and after the hearing." [Emphasis supplied.] Clearly it was not the attendance at the hearing alone and the subsequent discharge upon which the Trial Examiner based his findings of a Section 7 violation. It should also be noted that the circuit court demed en- forcement of the reinstatement portion of the Board's order 8 In the Salt River Valley Association case, both the Board and the court are concerned with the question of whether the circulation by one employee of a petition among the employees constitutes concerted activity. In finding concerted activity the Board said: "Group action is not deemed a prerequisite to concerted activity, for the reason that a single person's action may be the preliminary step to acting in concert." Under the cir- cumstances of the particular case it was readily apparent that the circulation of the petition by one employee was preliminary to a concerted activity and thus, reasoned the Board, the preliminary step was inherently concerted. In the instant case the activity on which the discharge was based was the letter written by Mary Akey. All events and conversation tending to show concerted activity, if any, had already occurred. It should be apparent that the problem with which the Board grappled 7 General Counsel sought to shown an 8 (a) (3) discriminatory motive at the discharge discussion by attributing to Finnell through the testimony of Akey the following • "I will tell you now, I don't intend to be bothered with that union mess hanging around down here anymore " As indicated in footnote 2, I do not credit Akey. Whitt, Nickell, and Finnell each denied that such a statement was made 8 In so commenting this Trial Examiner is not unmindful of his obligation to follow Board pronouncements until decision by the U S. Supreme Court overrules the Board 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and reached in the Salt River Valley Association case, is easily distinguished from that herein. Attorney for the Charging Party also cites language from Paul Cusano, et at. d/b/a American Shuffleboard Company et al., 92 NLRB 1272, 190 F. 2d 898 (C.A. 3); and Illinois Tool Works, 61 NLRB 1129, 153 F. 2d 811 (C.A. 7), for support of the proposition that an employer need not have knowledge of the concerted activity to establish an 8(a)(1) violation of the Act. The Trial Examiner has carefully reviewed these cases and is of the opinion that such volatile language is only applicable after the fact has been established that the provoking activity is clearly protected. Thus in the instant case we must first analyze the activity before blythely applying such language. It is true, however, as the court stated in the Salt River Valley Association case that protected concerted activity is "not limited to union activities." The reach of the problem involved in this case was recognized by a Board Mem- ber of the NLRB when, in 1958 , he stated: 9 Despite the broad language of Section 7, the Court early excluded a number of concerted activities from the protection of the Wagner Act by refusing to find unfair labor practices in discharges or other disciplinary action. In others, the Court appeared to balance the employees' need for concerted activity against the employer's right to prevent disruption of his business. After noting the early sit- down strike, violence , and tortuous conduct-type cases,10 Board Member Jenkins considered the court's most recent decision in this area 11 and concluded: This decision leaves open the question of the extent to which employees are protected by Section 7 for engaging in "other concerted activities" and the meaning to be accorded "for the purpose of ... other mutual aid." It also raises question concerning the extent to which employees may, with impunity, criticize their employer or his business in public. The General Counsel argues that despite the informality of a grievance, or the lack of knowledge on behalf of Respondent, the complaint of a common griever con- stitutes concerted activity protected by the Act and cites The Ohio Oil Company, 92 NLRB 1597; Phoenix Mutual Life Insurance Company, 73 NLRB 1463, 167 F. 2d 983 (C.A. 7), cert. denied 335 U.S. 845; Hearst Publishing Company, Inc. (Los An- geles Examiner Division ), 113 NLRB 384; Wood Parts, Inc., 101 NLRB 445. General Counsel contends his position is supported by the Board's recent decision in Guernsey-Muskingum Electric Cooperative, Inc., 124 NLRB 618, which in part reads: It is sufficient if the matter at issue is brought to the attention of management by a spokesman, voluntary or appointed for that purpose, so long as such person is speaking for the benefit of the interested group. The language in all of these cases, however, is directed toward the concerted prob- lem after determining that the activity was protected, (or ignoring it because it was so obviously protected) and does not consider the balancing of rights and the methods employed in the activity to which the U.S. Supreme Court directed its attention when it said in the Local No. 1229, Electrical Workers case, supra, Even if the attack were to be treated . . as a concerted activity wholly or partly within the scope of those mentioned in Section 7, the means used by the technicians in conducting the attack have deprived the attackers of the pro- tection of that section , when read in the light and context of the purpose of the Act. [Emphasis supplied.] The entire context of the Act is directed toward establishing a relationship between management and labor-employees and employer-deemed to be in the best interest of both as well as the public.12 As indicated earlier the proof in this case fails to establish that the action of writing the letter was mutually contrived, or adjusted, agreed on , and settled between 9 See the article, "The Supreme Court and the NLRB," by Joseph A. Jenkins , vol. 9, p. 425 at pp. 430 and 431 , Labor Law Journal. 10 See N.L.R .B. v. Fansteel Metallurgical Corporation, 5 NLRB 930, 306 U.S. 240; and Southern Steamship Company v. N.L.R.B ., 23 NLRB 26, 316 U.S. 31. 11 N.L.R.B. v. Local Union No. 1229, International Brotherhood of Electrical Workers, A.F.L. (Jefferson Standard Broadcasting Company ), 346 U.S. 464, 94 NLRB 1507. 13 See Section 1(b) of the Act. CITY CAB, INC., CHECKER WHITE CAB, INC., ETC. 493 parties acting together pursuant to some design or scheme.13 Nor does it bear any resemblance to a labor dispute. Rather the January 6 letter was a creature born and nursed to maturity in the mind of Mary Akey. The fact that after the "birth" some few smiled approvingly of the "child" cannot in my opinion retroactively make the action concerted. Thus it is clear that Akey's action was not an "indispensable preliminary step to employee self-organization." 14 The Respondent had no reason to believe that Akey's letter writing activity was for or on behalf of anyone other than herself. It is clear from the record in this case that Mary Akey's January 6 letter contained misleading statements, if not deliberate untruths, and when considered in the light of Respondent's action to improve and correct its sanitation facilities some 5 months previously, was only calculated to heap public embarrassment upon Respondent. It might even be properly characterized as the vindictive act of a "scorned woman." I have searched this record for some scintilla of permissible motive which might have prompted Akey's action or justified the means , but am left wanting. Mary Akey by her chosen course of action removed herself from the protection of the Act. She was attacking the very interest which she was being paid to conserve and develop and the employer was not required to finance such activities. 15 For these reasons I shall recommend dismissal of the complaint in its entirety. 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 within the meaning of Section 2(6) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act 3. The Respondent has not violated Section 8 (a)L(1) of the Act as alleged in the complaint. 4. The Respondent has not engaged in conduct violative of Section 8(a)(3) of the Act as alleged in the complaint. [Recommendations omitted from publication.] 78 See Webster's New International Dictionary and Black ' s Law Dictionary for a defini- tion of "concerted." is See O ffice Towel Supply Company, Incorporated, 97 NLRB 449, and cases cited at footnote 4 therein , enforcement denied 201 F. 2d 838 ( CA. 2). w The Patterson-Sargent Company, 115 NLRB 1627. Also see, Harvard Law Review, vol. 66, p. 1321. City Cab, Inc., Checker White Cab, Inc., Skyline Cab, Inc., Town Tops Taxi, Inc. and Chauffeurs, Teamsters & Helpers Local Union 175, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen & Helpers of America and District 50, United Mine Workers of America, Local 14149, Party to the Contract. Case No. 9-CA-1823. August 8, 1960 DECISION AND ORDER On March 24, 1960, Trial Examiner Thomas S. Wilson 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 said complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. 128 NLRB No. 64.