General Cable Corp.

GENERAL CABLE CORPORATION 301 With respect to the incident related in paragraph numbered 8, the Board has previously held that an employer or union can provide employees with transportation to the polls. Foreman Newell deities that the incident related in paragraph numbered 9 oc- curred. Moreover, there is no showing that had Mason herself made the request Lees would not have honored it. Assuming that the incident did occur, it does not warrant setting aside an election involving 2,175 employees. With respect to the incidents related in paragraph numbered 10, there is no showing that payment of reporting time to the three employees was conditioned on the manner in which they voted. The incident described in paragraph numbered 11 involves a reporting of hearsay statements . It does not involve statements alleged to have been made by Lees' supervisors and cannot be attributed to Lees. Thus, the Regional Director , in recommending that the election be set aside, has not included as a basis for his recommendation the allegations set forth in the last paragraphs numbered 1 through 11. General Cable Corporation and United Electrical, Radio & Machine Workers of America, (UE). Case No. 20-CA-1781. February 16, 1961 DECISION AND ORDER On July 29, 1960, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel filed exceptions to the Inter- mediate Report and a supporting brief. The Respondent filed a brief in support of the Intermediate Report. 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]. 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 the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a change duly filed on February 15, 1960, by United Electrical , Radio & Machine Workers of America, (UE), herein called UE, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel1 ' This term specifically includes counsel for the General Counsel appearing at the hearing. 130 NLRB No. 44. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Board, through the Regional Director of the Twentieth Region (San Fran- cisco, California), issued a complaint, dated March 22, 1960, against General Cable Corporation, herein called Respondent, alleging that Respondent had engaged in and was engaging in commerce within the meaning of Section 8 (a) (1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended from time to time, 61 Stat. 136, herein called the Act. Copies of the charge, the complaint, and notice of hearing thereon were duly served upon Respondent and upon UE. Specifically, the complaint alleged that Respondent, since on or about January 4, 1960, has denied employment to Ascensio Solis because of his past membership in UE. On April 1, 1960, Respondent duly filed an answer denying the commission of the unfair labor practices alleged. Pursuant to due notice, a hearing was held in San Francisco, California, before the duly designated Trial Examiner. The General Counsel and Respondent were represented by counsel, UE by an official thereof. Full opportunity was afforded the parties to be heard, to examine and cross-examine witnesses, to introduce rele- vant evidence, and to file briefs on or before May 20, 1960. A brief has been received from Respondent's counsel which has been carefully considered. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS OPERATIONS Respondent, a New Jersey corporation, has its principal offices in New York, New York, and operates about 31 plants located throughout the United States, including plants located at Emeryville, California, and at Sanger, California. Respondent is engaged in the manufacture and sale of electrical wire and cable. During the 12- month period immediately preceding the issuance of the complaint Respondent pur- chased raw materials valued in excess of $50,000 from points located outside the State of California for use at its aforesaid two California plants. Upon the above admitted facts the Trial Examiner finds that Respondent is, and at all times material has been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED UE and International Brotherhood of Electrical Workers, Local 100 , AFL-CIO, herein called IBEW, are labor organizations admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Prefatory statement At the hearing, the General Counsel asked the Trial Examiner and the Board to take judicial or official notice of the facts in connection with a representation pro- ceeding (Case No. 20-RC-2071, not published in NLRB volumes) for the produc- tion and maintenance employees at the newly established Sanger, California, plant of Respondent. The petition in that case was filed on February 9, 1960, by the IBEW, Local 100, and UE was permitted to intervene. On March 22, a consent- election agreement was executed by Respondent and the two unions here involved. On April 1, the election was held. The tally of the ballots cast discloses that of the 41 valid ballots cast, 25 were cast for IBEW, 11 for UE, I for neither union, and 4 were challenged. Thereafter, UE filed with the Regional Director for the Twentieth Region objections to the conduct of the election. On May 6, the said Regional Director overruled UE's objections and certified IBEW as the collective- bargaining representative of the employees involved. On behalf of the General Counsel there were received in evidence (General Counsel's Exhibits Nos. 4 through 14) copies of a series of newsletters, bulletins, and other material sent by Respondent to its employees or posted at the Sanger plant during the campaign which preceded the aforementioned election. These exhibits include the documents upon which UE based certain of its objections to the conduct of the election and which objections the Regional Director overruled. After the receipt in evidence of the above referred to exhibits the following col- loquy between the Trial Examiner and counsel for the General Counsel took place: GENERAL CABLE CORPORATION 303 TRIAL EXAMINER: Now, what is the materiality of it? Mr. BowE: I think it is a type of background information, and I will show that the campaign actually started a little before this, and I feel it serves as background for the motives and the reasons for the refusal to hire Mr. Solis. TRIAL EXAMINER: Well, I will take it. Mr. BowE: The General Counsel rests its case. TRIAL EXAMINER: I thought you were going to show the general background. What is the general background? Mr. BOWE: No, I meant to say that I was offering it as a type of background, even though it occurred after the refusal to rehire. Petition was not filed until after that time, but I offer it as part of the other evidence which I expect to bring up on cross-examination of Mr. Prael's witnesses. Upon the basis of the record as a whole, the Trial Examiner is convinced, and finds, that the statements contained in the aforementioned exhibits are protected by Section •8(c) of the Act 2 and the Trial Examiner further finds that, contrary to the General Counsel's contention, they do not tend to throw any light, as background or otherwise, for Respondent's "motives and the reasons for the refusal to hire Mr. Solis." B. The pertinent facts Ascensio Solis, a machine operator, was first employed at Respondent's Emery- ville, California, plant in 1951. After working for about 7 months he was laid off. Solis returned to the Emeryville plant in October 1954. Since his reemployment Solis has been a UE member. In February 1959,3 Ray Riggin was appointed assistant director of manufactur- ing for Respondent's west coast operations. Prior thereto Riggin was plant manager of Respondent's Monticello, Illinois, plant which plant was opened in 1955, while Riggin was employed there. Riggin's jurisdiction now covers the Emeryville plant, the newly constructed Sanger, California, plant,4 and the Los Angeles, California, plant. Under date of July 27, S. A. Smith, Riggin's immediate supervisor and the per- son in charge of Respondent's manufacturing, wrote, from his New York head- quarters, the following memorandum to Riggin: This is just to reiterate what I think is thoroughly understood by all of us and that is that you are going to make it a condition of employment at the Sanger plant that employees shall be residents of that city and the immediate surroundings. We certainly don't want to employ transients or people who may move into town from a distance solely for the purpose of getting a job at our plant there. Let's make this policy a rigid one with no exceptions 5 By immediate surroundings I would say people living within a radius of five or ten miles, but including Fresno only if there seems to be a very good reason. I should think it would be perfectly possible to employ all we need to employ without taking anybody from as far away as Fresno. There are probably a number of small towns up to fifteen or twenty miles distant which could well contribute a few employees if they are thoroughly desirable ones. During August, Riggin did the hiring at the Sanger plant and he followed the hiring policy as outlined in Smith's July 27 letter. About September 1, Robert Haley was transferred from the Emeryville plant, where he had been manager of the building wire department, to the Sanger plant and became superintendent of the building wire division. When Riggin left the Sanger plant, about October 1,6 Haley took over the hiring and he likewise fol- lowed Respondent's policy of hiring only bona fide residents of the area in which the plant is located. 2 See Indiana Metal Products Corporation v. N L R.B , 202 F. 2d 613, 617 (C.A 7) ; N.L R B. v. Rockwell Manufacturing Company ( DuBois Division ), 271 F. 2d 109, 118 (C.A 3). 9 Unless otherwise noted all dates hereinafter mentioned refer to 1959. 4 This plant was not quite completed when Riggin "moved In" on July 10. In fact, no employees were hired prior to August 24. 6 Riggin testified, and the Trial Examiner finds , that this was the policy which Respond- ent followed at all its plants, including the plant at Monticello. 6 The record indicates that thereafter Riggin maintained his headquarters at the Emeryville plant. ,304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About June, it came to Solis' attention that the Emeryville building wire depart- ment, where he was then working, was to be moved to the Sanger plant, with Haley the supervisor in charge. Solis thereupon informed Haley that he would probably move to Sanger and open a mission '1 and would like to be employed at the Sanger plant. Haley informed Solis that he was not sure whether he would go to the Sanger plant but if he did, Solis, to quote from Haley's credible testimony,8 "would be con- sidered on the very same basis as anyone else at the Sanger plant. I said that if he .came to apply for a job he would be considered; however, I was going to hire off the street, and that things would be different at Sanger. I told him we were going to cut down on the manpower, and we weren't going to use as much manpower as we Aid at Emeryville." In August, Solis again approached Haley for a job at Sanger. Haley informed Solis that he was not doing the hiring but Riggin was and that Solis should contact -Riggin. The first employee hired at the Sanger plant was on August 24. Of the 25 pro- duction and maintenance employees hired between the aforesaid date and January 1, 1960, all resided in or within 14 miles of Sanger and all but 1 had attended school in Sanger or in a nearby town. The one exception was Carl Ecklund who had moved to Sanger from North Dakota. Although rated by Haley as an excellent prospect,9 Ecklund was hired only after calling at the plant about 15 times and after .a thorough investigation of his residence status. Solis quit his Emeryville plant job on December 28, and shortly thereafter he and his family removed to Del Rey, a town about 5 miles from Sanger.io In November or December, Solis told Riggin that he was moving to the Sanger ,area and inquired if he could be employed at the Sanger plant. Riggin told Solis -to see Haley. In the fore part of December and prior to removing to Del Rey, Solis -went to the Sanger plant and saw Elmer Stanley Delker,ll a department manager under Haley, and, after telling Delker that he was on his vacation, asked whether ,there was a possibility of obtaining a job at the Sanger plant. Delker informed Solis that he "was not in a position to do the hiring," adding that the "hiring would have to be done from the front office. His application would have to be put in at -that point, and if he would be hired, he would have to see Mr. Haley." Solis also informed Delker that he had been "sent down in regards to getting on at the plant" -by Riggin, to which statement Delker replied that he would transmit that informa- tion to Haley. After some talk regarding "some device" which Solis had helped ° Solis is, and during all times material was, a minister in the Pentecostal Holiness -Church. fi Solis' version of this converstation is at variance with that of Haley. After a very .careful scrutiny of the entire record in this case, all of which has been carefully read, and parts of which have been reread and rechecked several times, and being duly mindful .of the contentions of the parties with respect to the credibility problems here involded, the Trial Examiner finds Haley's version of what was said during this conversation to be substantially in accord with the facts. This finding is buttressed. by the fact that Solis gave the Trial Examiner the impression that he was studiously endeavoring to conform his testimony to what he thought was to his best interest. On the other hand, Riggin, 'Haley, and Stan Delker, a Respondent's department manager, impressed the Trial Ex- aminer as being witnesses who did not endeavor to enlarge their testimony beyond what they honestly believed to be the facts In view of the foregoing findings, the Trial -Examiner is unwilling to, and therefore does not, give any probative value to those por- tions of Solis' 'testimony which are contradicted or explained' and which are not corrobo- rated by objective circumstagces or by the testimony of Riggin, Haley, or Delker. 9 Although Solis and another employee each had received from Respondent $50 about -December 11 for suggesting an ingenious idea for "detecting opens in plastic telephone -wire," the record is replete with credible evidence that Solis was but a mediocre worker. In fact, Solis admitted on the witness stand that Haley had told him in June, when they -both were employed there, that if Soils was hired at Sanger, Haley "wouldn't have people fooling around like you are now out there" ; and that Haley also told him that lie was a slower worker than Palmer, an elderly, one-eyed employee. 10 Solis first testified that lie moved to Del Rey "in the latter part of November" and -that he quit his Emeryville plant job "about the 15th or 18th of December " When con- fronted with Respondent's records he admitted that lie worked at the Emeryville plant on December 25 and received his last paycheck on December 28. 11 Also referred to in the record as Stan Delker GENERAL CABLE CORPORATION 305 develop at the Emeryville plant 12 which Solis thought should "be given some con- sideration on being hired' ; Solis remarked, "He hoped that his affiliation with the Union [at the Emeryville plant] wouldn't affect his being hired, and that he, him- self, could not be too deeply involved in union activities because of his church af- fairs." To which comment Delker made no reply. At this point, Haley approached Delker and Solis, whereupon Delker excused himself and returned to his duties 13 Regarding his conversation with Solis on the occasion referred to immediately above, Haley credibly testified 14 as follows: Q. Will you tell us what the conversation was between you and Mr. Solis at that time? A. Yes. Mr. Solis said that he was moving into the area and that he would be located by the first of the year. He said that he had talked to Mr. Riggin, and that Mr. Riggin had told him to see me. I told him at that time that we were in the midst of installation, and in the midst of a copper strike, and there was not much hope of employment. I told him that I certainly could not guarantee him a job when he moved into the area. At that time I asked him, since I couldn't guarantee him anything, if he had checked around in the Sanger area. He made the statement that he hoped that the union business, that is what he said, the union business would not affect his employment at Sanger. I said it certainly would not affect his employment at Sanger, and he would be considered on the same basis as anyone else coming in off the street. Q. Is that all you recall? A. Yes. Q. Now, how did the conversation end? A. I told him that when he had moved into the area to come and see me. On January 4, 1960, the first workday following his move to Del Rey, Solis again went to the Sanger plant and saw Haley. What transpired on that occasion, the latter credibly testified as follows: Q. Tell us as near as you can what he told you, and what you told him. A. I invited Mr. Solis into the office, and he sat down. I told him that we were pretty much in the same situation, that is, that the copper strike was on, and that I could not hire anyone at that time. I told him we didn't need anyone because of the copper strike. So he then told me, "I think you are giving me the run-around." He asked if the fact that he worked at Emeryville, or his past record had anything to do with me not hiring him. I said it didn't have anything to do with it. However, I said, "You were not setting the world on fire as an employee at Emeryville, but you had passable employment." Then be asked whether the fact that he belonged to the union-he reiterated the fact that he did not have anything to do with the union, and he certainly hoped that the fact he belonged to the UE did not have anything to do with it. I told him, "No," that it definitely did not. I went on to say there were certain complications involved , and one of them was that we had a resident policy. I told him that we were hiring local residents, and he said he was a resident. I told him that we also had a policy that we could not hire people moving into the area for the express purpose of going to work for General Cable. I told him, also, there were complications involved with the union situation to the effect that the union had made claims that employees working in the Emeryville plant would have the right of transfer. I told him I did not know the status of it at that time, and it would have to be checked into. " This device is referred to in footnote 9, supra. 13 The above-quoted matter is an excerpt of Delker's credible testimony. The Trial Examiner has not set forth Solis' testimony regarding his talk with Delker, which testi- mony the Trial Examiner has carefully and fully considered, because the Trial Examiner finds that Delker's version of his conversation with Solis to be substantially in accor(' with the facts 11 The Trial Examiner has carefully read and fully considered Solis' testimony regarding this conversation and finds that it does not reflect what was actually said. 597254---61 vol 130-21 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I took his name and address, and I told him that if anything did come up I would contact him and for him to be sure and check back. Q. Has he come back to see you since? A. No. The same day, January 4, 1960, Solis wrote Riggin as follows: I hope you remember me; I am Ed Solis. I talked to you once concerning a job in Sanger. I went to see Bob Healy and he refused to hire me , on account of the union business . However, I can assure you I have nothing to do with it, and never will. I would appreciate it very much if you help me get a job , I need one bad. You need not to worry about me making trouble for Bob. (Union-wise.) Hoping to hear from you soon. Upon receipt of the letter referred to immediately above, Riggin , who was at the Emeryville plant, telephoned to Haley at Sanger and, after reading Solis ' letter to Haley, asked Haley, "What's this union business ?" referred to by Solis in his letter of the previous day. Haley replied, to quote from Riggin's credible testimony, "He (Haley ) said it probably meant or had reference to the controversy going on between the company and the UE as to whether there were transfer rights of the employees of the Emeryville plant. . . he mentioned that Solis at the time said that he really preferred not to have anything to do with any union ." Riggin, after ascertaining to his satisfaction what the "union business" referred to by Solis meant, coupled with the fact that Solis had indicated that he did not want anything to do with any union and also being mindful of the fact that Respondent might be guilty of an unfair labor practice charge if it put Solis to work at Sanger, told Haley "to forget [Solis] for the time being." Of the 26 production and maintenance employees hired at the Sanger plant be- tween January 4 and April 25, 1960 ,15 all lived in or near Sanger, and 21 of them had attended school in or near Sanger; the others had worked and had lived in and around Sanger for some time immediately prior to being hired at the Sanger plant ; no one was employed until Haley had investigated his residence status; Thomas Quevedo and Paul Oritz were not employed until 7 or 8 months, respectively, after filing applications for employment; the average elapsed time between the filing of an application for employment and being hired was about 64 days ; and the 56 men employed at the Sanger plant were selected from about 200 applicants. C. Concluding findings Upon the record as a whole, the Trial Examiner finds that the allegations of the complaint that Respondent had engaged in and was engaging in certain acts and conduct violative of Section 8(a)(1) and (3) of the Act are not supported by substantial evidence. In addition, the record is completely barren of any credible evidence that Respondent displayed any present animosity for UE or for any other labor organization . As for past union hostility or animus, the only unfair labor practice case involving Respondent that the Trial Examiner has been able to find, after a very careful check of the Board's bound volumes of Decisions, was a 1942 case reported in volume 44 at page 647. That case was disposed of by Respondent agreeing to a Board cease-and-desist order. Accordingly, the Trial Examiner recommends that the complaint be dismissed , in its entirety. Upon the basis of the foregoing findings of fact, and upon the record as a whole, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. General Cable Corporation, Sanger, California, is engaged in and, during all times material, was engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Electrical, Radio & Machine Workers of America, (UE), is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act have not been sustained by substantial evidence. [Recommendations omitted from publication.] 15 The hearing herein opened on April 26, 1960.