Trenton Manufacturing and Distributing Co.

TRENTON MANUFACTURING AND DISTRIBUTING CO . 797 operations commenced at these stations. Cf. Cenit Noll Sleep Prod- ucts, Inc., 115 NLRB 318. Accordingly, the parties are advised, pursuant to Section 102.103 of the Board's Rules and Regulations that : 1. The Board would not assert jurisdiction over Major on the facts presented herein because they fail to show an annual gross volume of $500,000 or more. On the facts before it the Board is unable to conclude that Major, Central, and Mission constitute a single em- ployer for jurisdictional purposes. Hence the only basis for asserting jurisdiction is the commerce data relating to Major's operations, and these fall below present pertinent Board standards. We are of the opinion that Indiana Bottled Gas Company, 128 NLRB 1441, is distinguishable, and that Man Products, Inc., 128 NLRB 546, is inapplicable. Trenton Manufacturing and Distributing Company and Am- brosene Peterson, Charging Party and Local Union No. 299, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 7-C, A-2554. November 29, 1960 DECISION AND ORDER On July 25,1960, Trial Examiner John H. Dorsey issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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, the General Counsel, and the Intervenor filed exceptions to the Intermedi- ate Report and supporting briefs. 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 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations 1 of the Trial Examiner. 'The Trial Examiner found that Respondent illegally assisted the Intervenor by solicit- ing its employees to join the Intervenor and by threatening them with reprisals if they failed to select that Union as their bargaining agent. Because the Respondent had not 129 NLRB No. 100. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER , Upon the entire record in this 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, Trenton Manu- facturing and Distributing Company, Warren, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Soliciting its employees to become members of Local Union No. 299, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, and threatening reprisals if its employees failed to select said Local Union No. 299, or any other labor organization desig- nated by Respondent, instead of a labor organization of the employees' own choosing. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, and 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 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) Withhold all recognition from Local Union No. 299, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any successor labor organiza- tion, as the exclusive representative of its employees for the purposes of collective bargaining unless and until such labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. extended recognition to, nor executed a contract with, the Intervenor , the Trial Examiner limited hls recommended order to proscribe .future acts of assistance of the type which he found. In his exceptions , the General Counsel contends'that Respondent should be pre- -eluded from recognizing or bargaining with the Intervenor until it has demonstrated its majority status in ' a Board-conducted election if the effects of the assistance is to be expunged effectively ., We find merit ih this contention . As the Trial Examiner's recom- mended order now stands , the Respondent would be free to recognize or bargain immedi- ately with the Intervenor as the exclusive representative of its employees although they have not had an opportunity to select or reject the Intervenor in an atmosphere free of coercion and restraint . Accordingly , we shall amend the Trial Examiner's recommended order to require that the Respondent withhold recognition from the Intervenor unless and until it has been certified , by the Board as the majority representative of its employees. TRENTON MANUFACTURING AND DISTRIBUTING CO. 799 (b) Post at its plant in Warren, Michigan, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be fur- nished by the Regional Director for the Seventh Region, shall, after being signed by Respondent's representative, be posted by Respond- ent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Seventh Region, in writ- ing, within 10 days from the date of this Decision and Order, what steps it has taken to comply therewith. 2 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." 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, we hereby notify our employees that : WE WILL NOT solicit' our employees to join Local Union No. 299, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT threaten to discharge, lay off, or otherwise penal- ize any employees for exercising the right to join a labor organi- zation of his own choosing. WE WILL withhold all recognition from the above-named labor organization as the exclusive representative of our employees for the purposes of collective bargaining unless and until said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing, or to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or 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 author- 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. TRENTON MANUFACTURING AND DISTRIBUTING 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge and an amended charge filed on October 23 and December 7, 1959, respectively, by Ambrosene Peterson, an individual referred to herein as complainant, against Trenton Manufacturing and Distributing Company, herein called Respondent, the General Counsel for the National Labor Relations Board, herein called General Counsel, caused a complaint to issue on December 17, 1959, alleging that Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended, herein called the Act.' Local Union No. 299, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters, intervened. Respondent filed an answer in which it denies the commission of any of the unfair labor practices alleged in the complaint. The complaint does not allege that Teamsters violated the Act in any manner. But, it alleges that Respondent engaged in a course of conduct relative to the Team- sters in violation of Section 8(a) (1) and (2) of the Act. Teamsters, as Intervenor, filed 'an answer denying such allegations. Pursuant to notice, a hearing was held before the duly designated Trial Examiner at Detroit, Michigan, on March 21 and 22, 1960. General Counsel, Respondent, and Teamsters were each represented by counsel. The parties were afforded full oppor- tunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. The parties waived oral argument. They filed briefs. Upon consideration of the entire record and the briefs of the parties, and upon observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT During all times herein material, Respondent, an Illinois corporation, has main- tained its principal office and place of business in Warren, Michigan, where it is en- gaged in the manufacture of miscellaneous items including but not limited to novelty plastics. During the fiscal year ending May 1959, which is representative of all times material herein, Respondent, in the course and conduct of its business opera- tions, purchased raw materials valued in excess of $140,000 of which approximately 1 percent was received from points outside the State of Michigan. During the same period Respondent's sales of finished products were in excess of $140,000 of which in excess of $50,000 was shipped from Michigan to points outside the State of Michigan. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATIONS INVOLVED The parties admit that Teamsters and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, herein called 3 The National Labor Relations Board Is referred to herein as Board. TRENTON MANUFACTURING AND DISTRIBUTING CO. 801 UAW, are labor organizations within the meaning of Section 2(5) of the Act. I so find. M. THE UNFAIR LABOR PRACTICES A. Organizational efforts and related occurrences In the summer of 1959,2 the complainant telephoned UAW inquiring as to pro- cedure necessary to have that labor organization represent Respondent's employees. The following evening, UAW organizers distributed literature and authorization cards to employees as they left the plant. A few weeks, thereafter, the complainant re- quested and received from UAW authorization cards. She, for some weeks, person- ally solicited employees, usually in the parking lot outside the plant. Signed cards which she obtained, about 10, were transmitted to UAW. On September 14, UAW filed a representation petition with the Board. In conformity with established pro- cedure the Board mailed a copy of the petition to Respondent with a covering letter dated September 15.3 On September 18, at the end of the lunch period, Jack Mondon, president of Re- spondent, called a meeting of the employees in the plant. Addressing the employees, Mondon said: (1) UAW pamphlets had been found in the ladies' room; (2) there was no reason to hide the pamphlets and suggested they be placed by the timeclock; and (3) anyone who said he refused to recognize the UAW, or any other union, was a liar. That such was the substance of his remarks is corroborated by witnesses called by the General Counsel. Shortly before September 22, Teamsters authorization cards were handed out in the plant by Al Bonassi, a production employee, who is the nephew of Respondent's president. I find that the relationship does not deprive Bonassi of his rights guaran- teed by Section 7 of the Act; and his actions in the exercise of such rights cannot be held, in the absence of proof, to be attributable to Respondent. There is unrefuted testimony which compels the finding that Calvin Harris, a part- time general foreman of Respondent, did solicit and seek to persuade Respondent's employees to join Teamsters and threatened dire consequences, including discharge and closing of the plant, if the employees joined UAW. On September 25, Teamsters notified the Board that it had authorization cards signed by Respondent's employees and requested permission to participate in the representation proceeding which had been initiated by UAW. On September 30, Respondent received a letter from Teamsters claiming that Team- sters represented a majority of the employees. The record contains no evidence that Respondent has recognized Teamsters as the exclusive collective-bargaining agent for its employees. B. Discharge of the complainant The complainant, Ambrosene Peterson, was employed by Respondent April 22; discharged September 22. She worked on various jobs. At the time of her discharge she operated a welding machine. Her activities in attempting to have the employees select UAW as their collective-bargaining agent are set forth above. The record contains no evidence that Respondent had any knowledge of those activities. The theory of General Counsel's case is: (1) The small size of Respondent's plant (about 15 employees) affords a basis for inferring Respondent's knowledge of the complainant's union activity; and (2) the reason given for the discharge was sham and from this it may be inferred that the complainant was discharge because of her union activity. The complainant testified that on the date of her discharge she was called to the office of Respondent's president where the following colloquy took place: "'Well, Billie [complaint], I am going to have to let you go,' and I asked why and he said, `Your work isn't up to par,' and I said, `Well, I can hardly believe that,' and he said, 'No, the truth of the matter is the girls don't like you here, and if I don't let you go, they will go."' Respondent adduced evidence of animosity on the part of some of the "girls" to the complainant because of reaction to what they felt to be the complainant's propensities. Whether the feelings were justified need not here be resolved. It is material only to the extent that the conflicts were brought to the attention of Respondent; and, acting on the information, Respondent discharged the complainant. i All dates herein are in the year 1959 unless otherwise indicated. 8 Docket number of the petition : Case No. 7-RC-4216. UAW requested withdrawal of the petition on September 28; granted on October 12. 586439-61-vol. 129-52 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board may not substitute its judgment for that of the employer as to suffi- ciency of cause for discharge . It may not infer unlawful motive if lawful motive can just as reasonably be inferred . Inasmuch as the record is barren of any credible evidence to support a finding that Respondent had knowledge of the complainant's union activities, I find that the complainant was not discharged in violation of Section 8 ( a) (1) and (3) of the Act? The record contains considerable testimony comparing the complainant's pro- duction with fellow employees. This is not material in view of the complainant's testimony reciting the reason given for her discharge . Were it necessary to make a finding, I would find that the complainant's production did not compare favorably with that of other employees performing the same operation. C. Respondent's violation of Section 8(a) (2) The complaint pleads, in the words of the Act, a past and continuing violation of Section 8(a)(2) of which Teamsters was and is the beneficiary. In considering the averment it is noteworthy that Teamsters has been in existence for more than 20 years, has in excess of 10,000 members , and has signed contracts with more than 200 employers in the Detroit area. That Respondent , by the acts and statements of its general foreman , Harris, supported Teamsters in violation of Section 8(a) (1) and (2) of the Act, is un- questionable in view of the following undisputed evidence: 5 1. Harris solicited the signing of Teamsters authorization cards . 2. Harris told an employee (Robinson), "If we don't get the Teamsters in here . we won't be able to get steel." 3. Harris told another employee ( Brown), "If it hadn't been for the Teamsters we wouldn't be working." 4. To another employee (Salyers ), Harris said the employees "that didn't sign the Teamsters cards would be without a job, that they would close down on a Friday; that coming . Friday ... the shop would be closed and you could start looking for another job." The complaint alleges that Respondent recognized and entered into a recognition agreement with Teamsters as the exclusive bargaining representative for Re- spondent's employees . The General Counsel failed to adduce evidence to prove the allegation. Upon motion, made by Teamsters , the Trial Examiner dismissed the allegation . I have reviewed the record and reaffirm the ruling. Conclusion Respondent has violated Section 8(a)(1) and (2) of the Act. Ambrosene Peterson was not discharged by Respondent in violation of Section 8(a)(1)and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent in violation of Section 8(a)(1) and (2) of the Act set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close , intimate, and substantial re- lation 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 Respondent engaged in unfair labor practices, I shall recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Trenton Manufacturing and Distributing Company is engaged in commerce within the meaning of the Act. * Two of the General Counsel's witnesses , Ada Salyers and Shirley Hutchinson , testified that subsequent to the complainant's discharge they had conversations with Respondent's president in which he indicated that the complainant was discharged for her union activities . I find this testimony not credible 5 Respondent did not call Harris as a witness MARVAL POULTRY COMPANY, INC. 803 2. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. Local Union No. 299, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, is a labor organi- zation within the meaning of Section 2(5) of the Act. 4. By distributing authorization cards of the labor organization named in para- graph No. 3 , above; by making statements to its employees attempting to persuade them to join said labor organization ; and by threatening dire consequences if the employees failed to join said labor organization, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (2) 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. 6. Respondent's discharge of Ambrosene Peterson was not in violation of Section '8 (a) (1) and ( 3) of the Act. [Recommendations omitted from publication.] Marval Poultry Company, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, Local 504, AFL- CIO. Case No. 5-CA-1591. November 29, 1960 DECISION AND ORDER On July 27, 1960, Trial Examiner John H. Eadie issued his Inter- mediate Report in the above-entitled proceedings, 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices as alleged in the complaint, and recommended that these particu- lar allegations be dismissed.. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and sup- porting briefs.:. , . 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]. 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 Intermedi- ate Report, the exceptions and.briefs, and the entire record in this case, and hereby adopts the findings, conclusions, end recommenda- tions of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor 129'NLRB No. 86.