F. Bennett Manufacturing Co., Inc.

506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. Bennett Manufacturing Co., Inc. and Seafarers International Union of North America, Atlantic and Gulf District , Marine Allied Workers Division, AFL-CIO. Case No. 2-CA-7035. October 31, 1960 DECISION AND ORDER On May 6,1960, Trial Examiner Thomas S. Wilson issued his Inter- mediate 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 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 with a supporting brief. The Board' has reviewed the rulings made by the Trial Examiner 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 this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the additions and modifications set forth below. 1. We find in agreement with the Trial Examiner and for the reasons fully set forth in the Intermediate Report that the Respondent discriminatorily discharged employees Booker T. Washington and Aaron Harvin in violation of Section 8 (a) (3) and (1) of the Act because of its antipathy toward the Union and its belief that Wash- ington and Harvin had voted for the Union in the election conducted by the Board.2 Like the Trial Examiner, we find no merit in Respondent's conten- tion that 1-Iarvin was discharged because there was no work for him. The Trial Examiner apparently did not credit the testimony of Floyd M. Bennett, Jr., Respondent's president, that an unexpected cancella- tion of an order on which Harvin was then working prompted his discharge. Moreover, we are persuaded that such cancellation, even if it had in fact occurred, was not the true cause of the discharge. Thus, as the Trial Examiner found, the Respondent did not inform Harvin that he was being discharged because of the cancellation of an order. That fact together with the abrupt discharge of both Harvin and Washington immediately after the election and Bennett's con- 'Pursuant to the provisions of section 3(b) of the Act , the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Leedom and Members Rodgers and Jenkins] 2 The Trial Examiner incorrectly states that Respondent's President Bennett stated to the employees before the election that all the Union was interested in was their money. We find that the remark was actually made immediately after the election while Bennett was in the process of discharging Washington and Harvin. 129 NLRB No. 62. F. BENNETT MANUFACTURING CO., INC. 507 temporaneous statement that the employees would have to give up the Union if they ever wanted to work for the Respondent again,' compels the conclusion that the discharge of Harvin, as well as Wash- ington, was discriminatorily motivated. Although the Respondent denied that it had discharged Wash- ington, and contended that Washington's leaving was probably due to a misunderstanding, it nevertheless contends further that it sought to have Washington return to his job and since it had made an offer of reinstatement, which Washintgon refused, it is not to be held liable for any loss of earnings suffered by Washington. We find no merit in the Respondent's contention. The evidence establishes that the Respondent merely invited Washington to discuss the matter of his return to work. Indeed, the Respondent admits as much, for after Washington had left the premises on November 6, that evening Bennett left a note in Washington's car asking Washington to come in and "talk" with him.' At no time did Washington, whose testimony the Trial Examiner credited, understand that the Respondent was offering anything more than an invitation to discuss the question of his return to work. In the circumstances, we find that the Respondent did not make an offer of reinstatement. 2. We agree with the Trial Examiner that the Respondent in viola- tion of Section 8(a) (5) and (1) of the Act unlawfully refused to bargain with the Union on and after November 6, 1959. As set forth more fully in the Intermediate Report, Union Organizer Cross asked Bennett to sit down and bargain with him as soon as the results of the election were announced. Bennett refused, stating that he was not going to bargain with the Union "now, next week, or any other time." No further demand was made on the Respondent until after the Union's certification on November 17, 1959. On November 20, the Union again requested recognition and the right to sit down and bargain with the Respondent. However, the Respondent adhered to its announced intention and again refused to meet with the Union. Subsequent demands to meet and bargain were made by the Union in January 1960. These demands were met by the Respondent's either asking the Union for delays or for a copy of its proposed con- tract. At no time, however, did the Respondent manifest a willingness to meet and bargain with the Union. In view of such conduct, we find that the Respondent made it unequivocally clear to the Union, 8 The Respondent asserts that Bennett denied at the hearing the making of such a state- ment and that the Trial Examiner's finding to the contrary is in error. The testimony in the record to which the Respondent adverts by no means clearly supports its position. Even if this testimony is construed as a denial, in view of Washington's specific testi- mony that such a condition was attached and the Trial Examiner's refusal to credit Bennett's testimony where contradicted, we find that the statement in question was made by Bennett at the time of the discharges. ,'The Trial Examiner mistakenly finds that the note was left in Washington's car on Saturday rather than on Friday, the day Washington was discharged. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as it had originally expressed itself on November 6, that it had no intention of ever bargaining with the Union. In such circumstances, we find that the Respondent refused to bargain with the Union on and after November 6, 1959, in violation of Section 8(a) (5) and (1) of the Act.' 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, F. Bennett Manu- facturing Co., Inc., Brooklyn, New York, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Seafarers International Union of North America, Atlantic and Gulf District, Marine Allied Work- ers Division, AFL-CIO, or any other labor organization of its em- ployees, by discriminatorily discharging any of its employees because of their union membership or activities, or in any other manner dis- criminating against them in regard to their tenure of employment or any terms or conditions of employment. (b) Refusing to bargain collectively with Seafarers International Union of North America, Atlantic and Gulf District, Marine Allied Workers Division, AFL-CIO, as the exclusive representative of all production and maintenance employees at its Brooklyn, New York, plants, including shipping employees, but excluding office clericals, guards, watchmen, and all supervisors as defined in the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to join or become members of Seafarers International Union of North America, Atlantic and Gulf District, Marine Allied Workers Division, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in union or concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8(a) (3) of the Act, as modified 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) Upon request, bargain collectively with Seafarers Interna- tional Union of North America, Atlantic and Gulf District, Marine Allied Workers Division, AFL-CIO, as the exclusive representative 5 Cf. Old Town Shoe Company, 91 NLRB 240. F. BENNETT MANUFACTURING CO., INC. 509 of the employees in the aforesaid appropriate unit, with respect to wages, rates of pay, hours of employment, and other conditions of em- ployment, and, if an understanding is reached, embody such an under- standing in a signed agreement. (b) Offer to Booker T. Washington and Aaron Harvin immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy" for any loss of pay each may have suffered by reason of the Respondent's discrimination against him. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plants in Brooklyn, New York, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by a representative of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days, in conspicuous places, including places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 6In 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." APPENDIX NOTICE TO ALL EMPLOYEES 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 our employees that : WE WILL NOT discourage membership in Seafarers Interna- tional Union of North America, Atlantic and Gulf District, Marine Allied Workers Division, AFL-CIO, or any other labor organization of our employees, by discriminatorily discharging any of our employees because of their union membership or ac- tivities, or in any other manner discriminating against them in regard to their tenure of employment or any term or condition of employment. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations , to join or assist Sea- farers International Union of North America, Atlantic and Gulf District, Marine Allied Workers Division, AFL-CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted ac- tivity for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- ^closure Act of 1959. WE WILL, upon request, bargain collectively with Seafarers In- ternational Union of North America, Atlantic and Gulf District, Marine Allied Workers Division, AFL-CIO, as the exclusive representative of all employees in the appropriate unit described below, with respect to wages, rates of pay, hours of employment, or other conditions of employment, and, if an understanding is reached, we will embody such understanding in a signed agree- ment. The bargaining unit is : All production and maintenance employees at our Brook- lyn, New York, plants, including shipping employees, but excluding office clericals, guards, watchmen, and all super- visors as defined in the Act. WE WILL offer to Booker T. Washington and Aaron Harvin im- mediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed and will make each of them whole for any loss of pay he may have suffered as a result of the discrimination against him. F. BENNETT MANUFACTURING CO., 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. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed November 19, 1959, by Seafarers International Union of North America, Atlantic and Gulf District , Marine Allied Workers Division, AFL-CIO, hereinafter called the Union, the General Counsel of the National Labor F. BENNETT MANUFACTURING CO., INC. 511 Relations Board, hereinafter called the General Counsel I and the Board, respectively, by the Regional Director for the Second Region (New York, New York), issued its complaint dated December 31, 1959, against F. Bennett Manufacturing Co., Inc., hereinafter referred to as the Respondent. The complaint alleged in substance that the Respondent: (1) Discriminatorily terminated the employment of Booker T. Washington and Aaron Harvin on or about November 6, 1959, because each of them engaged in union activities in violation of Section 8(a)(3) of the Act; and (2) on or about November 6, 1959, refused to bargain collectively with the Union as the exclusive collective-bargaining representative of all the Respondent's production employees in violation of Section 8(a)(5) and (1) of the Act. Copies of the com- plaint, the charge, and notice of hearing thereon were duly served upon the Re- spondent and the Union. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held on March 28, 1960, in New York, New York, before the duly designated Trial Examiner. All parties were represented at the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce evidence, to present oral argument at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and conclu- sions of law. Both parties made an oral argument at the conclusion of the hearing but neither has filed a brief herein. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleged, Respondent admitted , and the Trial Examiner finds that F. Bennett Manufacturing Co., Inc., is, and has been, at all times herein mentioned, a corporation duly organized under and existing by virtue of the laws of the State of New York. At all times herein mentioned, the Respondent has maintained its principal office and place of business at 154 Conover Street and at 189 Conover Street in the Borough of Brooklyn, city and State of New York, herein called its Brooklyn plants, and is now and has been continuously engaged at said plants and places of business in the manufacture , sale, and distribution of wooden instrument pieces and boxes of related products . During the past year, the Respondent, in the course and conduct of its business operations , caused to be manufactured , sold, and distributed at its Brooklyn plants products valued at in excess of $80 ,000, of which products valued in excess of $50,000 were furnished to various enterprises , including, inter alia, View Lex Corp. and Rochester Ordnance District , each of which enterprises annually produces , handles, and ships goods valued in excess of $50,000 out of the State wherein each of said enterprises is located. The Respondent admits, and the Trial Examiner finds, that at all times material herein the Respondent has been engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Seafarers International Union of North America, Atlantic and Gulf District, Marine Allied Workers Division , AFL-CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The facts The Respondent's production staff consisted of four employees. Employees Booker T. Washington and Aaron Harvin worked at Respondent's plant located at 154 Conover Street, Brooklyn, while employees Gonsalez and George Mosely apparently worked at the plant located at 189 Conover Street which also contained Respondent's offices. Washington had worked steadily for the Respondent since October or November 1957, while Harvin had been employed by Respondent since August 1959. On or about October 21, 1959,2 SIU Organizers Ralph Quinnonez and Malcolm Cross talked to and secured signed authorization cards from employees Washington and Gonsalez. The following morning the organizers approached employee Harvin at the plant at 189 Conover Street where he also signed an applica tion card. While the organizers were still chatting with Washington and Harvin, Respondent's 'This term specifically includes the attorney appearing for the General Counsel at the hearing 2 All dates are in the year la59 unless otherwise specified. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD president, Floyd M. Bennett, Jr., drove up and upon learning who the organizers were emphatically ordered them out of the building. Thereupon the organizers re- tired to the sidewalk outside the building , waited for Bennett, and informed him that they represented a majority of his employees and requested him to negotiate a contract. Bennett stated that he wanted to have nothing to do with the Union. Subsequently, however, a consent election was agreed to which was held on November 6 and won by the Union by a vote of three to one. Prior to the date of the election Bennett had told employees Washington and Harvin that all the Union wanted was some money from the employees or from the Respondent so that the employees should vote against the Union in the election in order "to get rid of the bums." After the ballots had been counted and the results announced , Organizer Cross suggested to Bennett that they sit down and negotiate a contract . Bennett refused with the statement that he was not going to negotiate "now, next week, or any other time." At this point the Board agent who conducted the election stated that Bennett need not negotiate with the Union until a certification of the Union had been received from the Board.3 As soon as the election had been completed and the strangers at the plant had departed, Bennett called employees Washington and Harvin into the office , ordered them to lock up the other plant and bring the keys to him, and he would pay them off. The men did as they were ordered and were given their final pay about 1:45 p.m., prior to the regular closing time and pay period. While completing these financial arrangements , Bennett informed the men that if they ever wanted to work for the Respondent again they would have to give up the Union. He further informed Washington that if Washington wanted to work for Respondent any more, he should come and talk to Bennett about work the following day, Saturday. When Washington did not appear for the interview on Saturday , Bennett left a note in Washington's car which was parked close to the Respondent 's plant asking Washington to come down and talk with him. When Washington did not appear on Monday, Bennett sent a fellow employee to ask Washington to come in and see him but Washington answered that he had been discharged . The following day Bennett telephoned Washington again asking him to come to the plant and perhaps Washington could go back to work. Washington still failed to appear at the plant. Some days later Respondent hired another employee. On November 17 the Union was certified as the exclusive bargaining representative for the Respondent's production and maintenance employees . On November 20, the Union requested recognition and the right to sit down and bargain with Bennett both by telephone and by letter. Bennett continued to refuse to sit down and nego- tiate with the Union. On January 5, 12, and 19, 1960, Organizer Quinnonez telephoned Bennett request- ing a negotiation conference . On the first two occasions Bennett requested delays and on the last occasion requested the Union to send him a copy of its contract but refused to sit down at the negotiation table with the Union. B. Conclusions 1. The discharges The facts of the discharges of Washington and Harvin immediately following the disclosure that the Union had won the election by a three to one vote together with Bennett's suspicion , if not knowledge , that these two employees had voted in favor of the Union creates at least a prima facie case that Bennett discharged these two employees because he suspected , or knew, that they favored the Union and that they were discriminatorily discharged because thereof in violation of Section 8(a)(3) and (1 ) of the Act. This was confirmed by Bennett 's statement that, if the em- ployees ever worked for Respondent again, they would have to give up the Union. At the hearing Bennett maintained that Harvin , at least, had been discharged because about 10 a .m. of the very morning of the election he (Bennett ) had received a tele- phone call postponing or canceling an order on which Harvin had been working so that there was no work for Harvin thereafter . Respondent presented no written evidence of any such postponement or cancellation and acknowledged that there was no written proof thereof in existence . Nor did any alleged customer testify that any such con- tract had been postponed or canceled . Nor, in fact, did Bennett make any mention of any such cancellation or postponement on the day of the election or for a long period of time thereafter. In fact, if there had been any such cancellation or postponement 3 This legal advice seems somewhat doubtful. F. BENNETT MANUFACTURING CO., INC. 513 which would have forced Respondent to dispense with the services of Harvin, it ap- pears only reasonable that Bennett would have so informed Harvin before or, at least, at the time of his discharge thereafter. This he did not do. Under all these circum- stances the Trial Examiner is unable to accept this uncorroborated evidence of this so- called postponement or cancellation on the very morning of the election. This seems too fortuitous to have been factual, especially is this so in view of the Respondent's hurried attempts to reinstate Washington the very next day on condition of renounc- ing the Union and the hiring of another man shortly thereafter. The undenied condition which Respondent attached to any possible reinstatement of Washington and Harvin, i.e., the abandonment of the Union, makes it quite clear that the discharge of Washington and Harvin was caused by the Respondent's antip- athy to unions and not by any loss of business. Consequently the Trial Examiner must conclude that the Respondent discharged Washington and Harvin because of their membership in the Union and because Re- spondent suspected them of having voted for the Union and, thus, constitutes a viola- tion of Section 8(a)(3) and (1) of the Act. The Trial Examiner so finds. 2. The refusal to bargain In view of the certification of the Union on November 17, 1959, as the exclusive representative of the Respondent's employees in the appropriate unit of production employees resulting from the 3-to-1 vote at the consent election, Respondent had to admit that the Union was the certified bargaining representative of its employees in the appropriate unit. The evidence is equally conclusive that both before and after the official certifica- tion of November 17, the Respondent refused and continued to refuse to sit down and bargain with the Union as such representative in violation of Section 8 (a) (5) and (1) of the Act. At the hearing and during oral argument Bennett stated, repeated, and then re- iterated that the Respondent had "always" been willing to negotiate with the Union and claimed that the failure of the parties to have ever sat down at the negotiation table was caused by the fact that the Union did not want to do the things as he wanted it done. The facts at the very least disprove this claim of the Respondent. It is true that Bennett asked for and was refused a copy of a union contract but it is also true in that same conversation the Respondent refused to sit down at the bargaining table with the Union. Therefore the Trial Examiner must find that on and after November 6, 1959, the Respondent refused to bargain collectively with the Union as the certified repre- sentative of the Respondent's employees in the appropriate unit in violation of Section 8(a) (5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent 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 com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent discriminated in regard to the hire and tenure of employment of Booker T. Washington and Aaron Harvin by discharging each of them on November 6, 1959, the Trial Examiner will recommend that the Re- spondent offer to each of them immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of said discrimination against him by payment to each of them of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289. It having also been found that the Respondent engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It having been found that on November 6, 1959, and thereafter, the Respondent refused to bar- gain collectively with Seafarers International Union of North America, Atlantic and Gulf District, Marine Allied Workers Division, AFL-CIO, as the certified ex- 586439-61-vol. 129 -34 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clusive bargaining representative of the employees of the Respondent in the appro- priate unit of production and maintenance employees , it will be recommended that the Respondent, upon request, bargain collectively with said Union as such representative. In the opinion of the Trial Examiner, the unfair labor practices committed by the Respondent in the instant case are such as to indicate an attitude of opposition to the purposes of the Act generally. In order, therefore, to make effective the interdepend- ent guarantees of Section 7 of the Act, thereby minimizing industrial strife which burdens and obstructs commerce , and to effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 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. Seafarers International Union of North America, Atlantic and Gulf District, Marine Allied Workers Division, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 2. By discharging Booker T. Washington and Aaron Harvin, thus discriminating in regard to their hire and tenure of employment because each of them became a member of the Union and engaged in union activities for the purposes of collective bargaining or other mutual aid or protection, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By failing and refusing on, and at all times after , November 6, 1959, to bargain collectively with Seafarers International Union of North America, Atlantic and Gulf District, Marine Allied Workers Division, AFL-CIO, as the certified exclusive repre- sentative of the employees in the appropriate unit, Respondent has engaged in and is now engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. 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 engag- ing in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] National Welders Supply Company, Inc.' and International Union of Operating Engineers Local 465, AFL-CIO, Petitioner. Case No. 11-RC-1354. October 31, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition. duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Jerold B. Sindler, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 1 The Employer's name appears as amended at the hearing. 129 NLRB No. 58.