Jan's Services, Inc.

JAN'S SERVICES, INC. 341 collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities except as authorized in Section 8(a)(3) of the Act, as amended. WE WILL offer Earl P . Strike and Darwin L. Knight immediate and full re- instatement to their former or substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and will make them whole for any loss of earnings suffered as a result of our discrimination against them. WE WILL make Harry Farris, Milo Schlosser, Jay Acklen, Robert Hewitt, George Whittemore, John Duke, Harry Woody, and Oria McDaniel whole for any monetary losses suffered as a result of their discharge on July 31, 1959. All our employees are free to become or remain, or to refrain from becoming or remaining, members of United Mine Workers of America, District 50, or any other labor organization. STEWART HOG RING COMPANY, 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. Jan's Services, Inc. and Mrs. Edwin Selvin Jan's Services, Inc. and Inlandboatmen's Union of the Pacific, San Pedro Division. Cases Nos. 21-CA-4110 and f1-CA-4136. April 27, 1961 DECISION AND ORDER On January 24, 1961, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain un- fair labor practices and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Respondent filed ex- ceptions to the Intermediate Report, together with a supporting brief. 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 brief, and the entire record, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions : We agree with the Trial Examiner's conclusion that Respondent's announcement of benefits on August 5, 1960, 2 weeks after the Union's representation petition was filed, interfered with employees' rights under Section 8(a) (1) of the Act.' In so finding, we reject Respond- 1 These benefits included extra-time pay, a vacation plan, time and a half for holidays, and paid travel time Although the announcement also Included hospital and surgical benefits, the Trial Examiner found that these benefits had been inaugurated prior to the 131 NLRB No. 47. '342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's contention that the August 5 announcement merely "clarified" benefits previously existing or promised, and that the timing of the announcement was in no way connected with the Union's organiza- tional campaign 2 We note, in addition to the points relied on by the Trial Examiner, that on July 27 or 28, 1960, Respondent's port captain, Rickertson, asked John Owens, an active union supporter, why the employees wanted a union. Owens pointed to deficiencies in working conditions, particularly the lack of the benefits which were announced on Au- gust 5. Rickertson suggested that the employees get together and see Respondent president, Johnson, instead of going to the Union, and added that if the job were unionized, the Company would go out of business, as it "couldn't and wouldn't go along with a unionized job." In view of this statement, and the other evidence set forth in the Intermediate Report, we believe, with the Trial Examiner, that Re- spondent's announcement of benefits on August 5, 1960, was made to dissuade its employees from seeking union representation. We con- clude, therefore, that this conduct violated Section 8 (a) (1) of the Act. 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, Jan's Services, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from by means of announcing or granting a vacation plan, paid travel time, premium holiday pay, or other bene- -its, or in any like or similar manner interfering with, restraining, or 'coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Inlandboatmen's Union of the Pacific, San Pedro Division, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in 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 organiza- advent of the Union, and therefore that their announcement on August 5 was not in vio- lation of the Act. As no exceptions were filed to this finding, nor to the Trial Examiner's dismissal with respect to solicitation by the captains , we adopt these findings pro forma. ' The record does not support Respondent's contention that the announcement of August 5 was merely a "clarification" of existing benefits. For example, employee Charles McGraw testified that he had not been paid time and a half for working July 4, 1960, but had been paid the extra rate for working November 11, 1960, Armistice Day. Respondent does not claim that the vacation benefits were actually in effect prior to August 5, but only that the announcement was a "clarification" of "misunderstandings." The announcement itself is phrased in terms of new benefits, to be enjoyed for the first time in the future. JAN'S SERVICES, INC. 343 tion as a condition of employment as authorized in Section 8(a) (3) of the Act, as amended.3 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its offices in Compton, California, and aboard all the vessels which it mans, copies of the notice attached hereto marked "Appendix." 4 Copies of this notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (b) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. • MEMBER BROWN took no part in the consideration of the above Deci- sion and Order. 8 This Order is not intended to require Respondent to alter or withdraw any benefits already announced or granted - I 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, by announcing or granting a vacation plan, paid travel time, premium holiday pay, or other benefits, or in any like or similar manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist Inlandboatmen's Union of the Pacific, San Pedro Division, or any other labor organization, 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 rights may be affected by an agree- ment requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8(a) (3) of the Act, as amended. 0 344 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD All crew members are free to become or remain or to refrain from becoming or remaining members of the above-named Union or any other labor organization. JAN'S SERVICES, 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Mrs. Edwin Selvin and by Inlandboatmen's Union of the Pacific, San Pedro Division, herein called the Union, the General Counsel of the National Labor Relations Board issued an order consolidating the cases and a com- plaint alleging that Jan's Services, Inc., herein called the Respondent, had engaged in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act. The matter was tried before me in Los Angeles, California, on December 12, 1960. In essence the complaint alleges that by reason of the conduct of certain supervisors and by granting benefits, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. Upon consideration of the briefs filed in behalf of the General Counsel and in behalf of the Respondent, upon the entire record in the case, and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a California corporation with its principal office in Compton, California. Since April 1, 1960, the Respondent has furnished services having a value in excess of $50,000 to Shell Oil Company which in turn ships products valued at more than $50,000 annually from California to other States of the United States and to foreign countries. I find that Respondent's operations are in commerce and affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES John B. Owens, Lowell Brentner, and Ray Perry at all times material herein were in the employ of the Respondent as captains of certain oceangoing vessels owned by Shell Oil Company and manned by the Respondent. The Respondent concedes that each of the captains is a supervisor within the Act's meaning.' On March 29, 1960, a few days before beginning operations, Glenn D. Johnson, Respondent's president, met with the captains and spoke with them concerning the work that would start on April 1. When the question of a wage increase arose, President Johnson said that a representative of Shell Oil Company, then present, would answer. The captains were told by the Shell man that wages of the Re- spondent would not exceed those paid by Shell Oil Company. Mention was made of holiday pay, vacations, and health insurance. According to Captain Owens there 1 Counsel for the Union appeared briefly at the hearing and announced that he did not believe the captains to be supervisors and refused to join in a stipulation to that effect. However, the uncontradicted and credited testimony of Capt. John B. Owens establishes that the captains exercise independent judgment in operating their vessels and responsibly direct the work of crew members. Their status is such as to satisfy the Act 's definition. JAN'S SERVICES, INC. 345 was no definite promise by the Respondent to act in regard to any of these matters except possibly as to health insurance. In May and June the captains and the crew members seem to have become in- creasingly dissatisfied with wages and other aspects of their employment. These dissatisfactions became the subject of frequent discussions in which the captains participated. At some point the question of obtaining union representation as an aid to bettering their condition was broached. There is no testimony that any agree- ment was reached between the captains and the crew members concerning any course of action in this particular. On July 15 the three captains telephoned their respective crew members and in- vited them to meet at the Union's hall. There at the urging of the captains the crew members signed authorization cards for the Union. Neither the captains nor the crew members were on duty at the time. A few days later, while at sea, according to the uncontradicted and credited testimony of Robert Jacklin, a crew member, Captain Brentner said that if everyone did not "go union" all would lose their jobs. On July 20, the Union filed a representation petition covering the personnel on the vessels manned by Respondent's employees. Notice of this filing came to the Re- spondent shortly thereafter. About July 26, according to the uncontradicted and credited testimony of Captain Owens, Respondent's port captain, Leonard Ricketson, said, "There's a better route to go than the union route." Ricketson went on to sug- gest that if the men had complaints they could all get together and see President Johnson about them, adding that the Respondent was constantly attemping to im- prove working conditions. In a letter to all employees dated July 25, the Respondent noted that the representation election was to be held and commented that more was to be gained through an informal relationship between management and em- ployee than through union representation . On August 5, the Respondent announced that, in addition to a health insurance policy which had become effective August 1, other benefits including extra-time pay for captains, vacations for all employees, premium holiday pay for eight holidays, and travel time for those required to work at locations outside of Los Angeles and Orange counties would thereafter be in effect. The General Counsel contends that the captains by inviting and urging employees to join the Union or to designate it as collective-bargaining representative have in- volved the Respondent in the commission of an unfair labor practice. The Respond- ent argues that the captains were acting upon considerations of individual self- interest; that they were seeking through Union representation to better their own employment conditions and were not speaking for the Respondent . It is clear enough that Respondent's management did not desire its captains or lesser employees to join the Union and that it would not have approved the actions of the captains had it been consulted beforehand . The evidence is convincing that it was the cap- tains who brought about the signing of the union designation cards. There is no reason to believe on the basis of this record that the crew members on July 15 would have done anything in respect to the Union absent the invitations and urgings of the captains. I think it to be of no consequence that on July 15 neither the crew mem- bers nor the captains were in duty status. The crew members knew that when they next sailed their captain would be in charge of the vessel and that they would be sub- ject to his supervision as in the past. In the circumstances the crew members neces- sarily weighed the captains' invitations and urgings as coming from the men whose work orders must be obeyed and whose favor and friendship should, in wisdom, be developed. Thus it cannot truly be said that the designations given to the Union represented a free choice of the crew members. Surely the captains interfered with the right of the crew members to make such decisions uninfluenced by active par- ticipation of their supervisors. The discussions between captain and crew that antedated the July 15 signing are sketchily outlined in the evidence. This much seems clear, however, that the crew members were not given reason to believe that Respondent 's management favored any sort of union organization . i The whole movement from its inception seems to have been based on the premse that only through union organization could the crew members and the captains develop enough bargaining power to persuade the Re- spondent to improve wages and other working conditions. The Respondent soon learned of the activity of the crew members and the captains and by a letter to all employees said that it preferred that they have no union to represent them. This falls short of a disavowal of the conduct of the captains in bringing about the signing of designations but it does underscore the fact that the captains were not acting with the knowledge or consent of'management . I am convinced and find that the crew members signed the cards in the belief that the captains desired them to do so in order that the captains and the crew members might benefit. I do not find, nor do I believe, that any crew member considered that he was following the wishes of the 346 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD Respondent in the matter. Thus there is no rational basis, in my opinion, for a vi- carious attribution of the conduct of the captains to the Respondent. Had the Re- spondent sought to benefit from the conduct of the captains and had accepted the Union as the bargaining agent of the crew members, another case would be presented which it is unnecessary to decide here. I find that the Respondent did not interfere with, restrain, or coerce its employees by reason of the circumstances surrounding the signing of the designation cards. Finally, as to the captains, there is Brentner's remark to a crew member, after the cards were signed and while both were on duty, that all must join the Union or face discharge. Of course this prediction was coercive and the crew member, Jacklin, must have felt its impact. But the crew members had allied themselves willingly or not with the captains; Jacklin's situation was not, in this respect, distinguishable from that of Brentner. Both were hopeful that the Union could advantage them in their dealings with the Respondent. Certainly Brentner was not telling Jacklin that any discharge would eventuate by the exercise of any authority residing in Brentner. In context of the circumstances I think that Brentner's remark must be regarded as if made by any crew member and that it should not be attributed to the Respondent solely because Brentner held the title of captain and possessed some supervisory au- thority. Because Brentner was not speaking for the Respondent on this occasion and because'I do not think that Jacklin reasonably could have believed that he was speak- ing in any representative capacity, I find that no violation of the Act is presented. I credit the testimony offered by the Respondent to the effect that the health insur- ance plan inaugurated on August 1 was not in response to information that some of its employees had become interested in the Union. I believe that arrangements for such a plan had been made prior to July 15. Considering, however, Port Captain Ricketson's remark to Captain Owens that there was a better way to achieve the employees' goal than by joining a union and the advice to employees by Respondent's president on July 25 that more might be gained through an informal relationship with management than by means of union representation, I am convinced that the benefits announced to employees on August 5 were motivated by Respondent's desire that the employees abandon their purpose to be represented by the Union. I do not credit the testimony of Port Captain Ricketson or President Johnson to the effect that the announcement on this date was no more than a clarification of working conditions or benefits already existing or decided upon before the employees signed union cards. I find that the benefits mentioned were given to the employees in an attempt to demonstrate to them that union representation was unnecsssary. In consequence I find that the announcement of benefits of August 5, 1960, interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and that Respondent thereby violated Section 8(a)(1) of the Act. N. 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 its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 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 Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By announcing a vacation policy, premium rates for holiday work, and paid travel time, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. 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.]