Atlas Linen and Industrial Supply

1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT, by picketing its stores, threaten, coerce, or re- strain Safeway Stores, Inc., where an object thereof is to force or require Safeway Stores, Inc., to cease using, selling, handling, transporting, or otherwise dealing in the products of members of Tree Fruits Labor Relations Committee, Inc., or to cease doing business with such members. FRUIT & VEGETABLE PACKERS & WAREHOUSEMEN, LOCAL 760, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) JOINT COUNCIL No. 28 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) Fred H. Johnson, Trustee Under the Will of Clay M. Thomas, Deceased, doing business as Atlas Linen and Industrial Supply and Myrtle C. Hall. Case No. 9-CA-2214. August 24, 1961 DECISION AND ORDER On March 24, 1961, Trial Examiner Alba B. Martin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and is engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report at- tached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' 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 [Members Rodgers, Fanning, and Brown]. 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 brief, and the entire record in this case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner. i As the record, exceptions, and brief adequately reflect the issues and positions of the parties, the Respondent's request for oral argument is denied. 2 The Trial Examiner drew a parallel between the attitude and sentiments of the Respondent's supervisory personnel in this case, and the attitude and expressions of the 132 NLRB No. 105. ATLAS LINEN AND. INDUSTRIAL' SUPPLY 4181 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 Re- lations Board hereby orders that the Respondent, Fred H. Johnson, Trustee Under the Will of Clay M. Thomas, Deceased, doing business as Atlas Linen and Industrial Supply, Columbus, Ohio, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in District 50, United Mine Workers of America, or any other labor organization of its employees, by dis- criminating in regard to the hire and tenure of their employment, or any term or condition of employment. (b) Discharging, threatening to -discharge, or otherwise discrimi- nating against any of its employees because they have given testimony under the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join'or assist District 50, United Mine Workers of America, or. any other labor organization, to bargain col- lectively 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 and 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) Offer Myrtle .C. Hall immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and to make her whole for any loss of earnings she may have suffered by reason of the discharge in the manner set forth in the section of the Intermediate Report en- titled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying,,all payroll records, social secu- rity 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. same persons in 130 NLRB 761, a prior case involving this Respondent. However, we adopt the Trial Examiner's findings in this case because they are adequately and inde- pendently supported by a preponderance of reliable evidence in the record in this case. 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its office in Columbus, Ohio, copies of the notice at- tached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. -.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, as amended, you are notified that : WE WILL NOT discourage membership in District 50, United Mine Workers of America, or any other labor organization, by discriminating against our employees in any manner in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT expressly or impliedly threaten any of our em- ployees with economic reprisal against them because of their sym- pathy or activity on behalf of District 50, United Mine Workers of America, or any other labor organization of our employees, or because any employee has given testimony under the Act. 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, join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other con- certed activities except to the extent that such right may be affected by an agreement authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to Myrtle C. Hall immediate and full reinstate- ment to her former or substantially equivalent position, without ATLAS LINEN AND INDUSTRIAL SUPPLY 1183 prejudice to any seniority or other rights previously enjoyed, and make her whole for any loss of pay suffered as a result of the discrimination against her. All our employees are free to become or refrain from becoming members of the above-named or any other labor organization. FRED H. JOHNSON, TRUSTEE UNDER THE WILL OF CLAY M. THOMAS, DECEASED, DOING BUSINESS AS ATLAS LINEN AND INDUSTRIAL SUPPLY, 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 This proceeding, with the General Counsel and Respondent represented by counsel, was heard before Alba B. Martin, the duly designated Trial Examiner , in Columbus, Ohio, on December 19, 1960, on complaint of the General Counsel and answer of oing Fred H. Johnson, Trustee Under the Will of Clay M. Thomas, Deceased , doing business as Atlas Linen and Industrial Supply , referred to herein as Respondent.' The issues litigated were whether by statements and threats Respondent violated Section 8(a) (1) and whether Respondent discriminatorily discharged Myrtle C. Hall in violation of Section 8 (a) (3) and ( 1) of the Act. At the conclusion of all evidence decision was reserved upon Respondents motion to dismiss the complaint . This motion is hereby ruled upon in accordance with the findings and conclusions herein. The General Counsel and Respondent filed briefs which have been carefully considered. Upon the entire record , and from my observation of the witnesses , I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, Fred H. Johnson, trustee, is a business enterprise operated by Fred H. Johnson under a testamentary trust established by the will of Clay M . Thomas, de- ceased. As such trustee , Respondent is engaged at Columbus , Ohio, in the business of supplying linen, uniforms, and industrial clothing to business enterprises and in- dividuals in the Columbus and central Ohio area. During the calendar year 1959, a representative period, Respondent's gross volume of business exceeded $3,000,000 and he purchased in excess of $300 ,000 worth of linen and industrial clothing from suppliers located outside the State of Ohio. At all times material herein Respondent is and has been an employer , as defined in Section 2 of the Act , engaged in commerce or in operations affecting commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED District 50, United Mine Workers of America , herein called the Union, is a labor organization as defined in Section 2 (5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. Background On February 28, 1961 , in 130 NLRB 761, of which I hereby take official notice, the Board found and held that by actions in March and April 1959 prior to and after a short strike, Respondent violated Section 8(a) (3) and ( 1) of the Act. The Section 8 (a) (1) conduct, committed by Production Manager Leroy Houck and some three foremen, disclosed Respondent's and Houck's complete hostility toward the Union 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and included threats that those who joined or assisted' the Union or went on strike would lose their jobs. On one occasion when employees held a mass meeting across from the Company's plant, Houck told Foreman Yerian to take down the names of those employees who went over to the meeting. After the strike buck and Yerian required at least some employees to produce and hand over to them their union cards as the price for being reinstated. The Board held that Respondent violated Section 8(a) (3) and (1) by failing to reemploy some of the strikers. To the knowledge of Respondent's representatives and management, including Houck, Mrs. Myrtle C. Hall was one of the strikers. In the hearing before me, without contradiction Mrs. Hall (referred to herein as Hall) testified without contradiction that Houck, Yerian, and Assistant Foreman Mundy saw her on the picket line during the 5 days she was on it. At that time Hall was reemployed. In 130 NLRB 761, the Board found that at a group meeting in May, Houck interrogated Hall as to why she got mixed up with the Union. She replied that in Kentucky where she came from, the United Mine Workers had improved working conditions and that she thought it would help make this a better place to work and bring them more money. "Houck wanted to know who had started the Union. When there was no answer, Houck stated that `if we work for the Company we would have to forget District 50 and Molly Taylor.' " Molly Taylor had been one of the early employee leaders of the Union. B. The discharge Myrtle C. Hall worked for Respondent from the summer of 1953 until she was discharged September 27, 1960, always as a shirt folder. She worked in the shirt finishing department at an automatic folding machine which was fed from two presses, each operated by an operator. Hall and her machine folded some 1,200 shirts per day. These were all colored work shirts. She removed the shirts from the perpen- dicular "sleever" and placed them on the "folder," checking to see that the seams were dry. She was obviously engaged in a fast-moving operation. About September 1, 1960, in an effort to revive interest in the Union, Hall ob- tained and passed out on her floor some 13 cards for the Union. Production Manager Leroy Houck admitted that in September 1960 he received several anonymous tele- phone calls to the effect that Hall and several other named persons were passing out union cards. He also admitted that after receiving these anonymous calls he may have told Hall's foreman, Production Foreman Lester C. Yerian, concerning the in- formation he had received about Hall and the other employees. Yerian admitted learning about Hall's activities. On September 21 or 22, 1960, according to Hall, Production Manager Houck came to her work area and said in a harsh voice to Production Foreman Yerian, in the presence of a group of employees including Hall, words to the effect that these old women are participating in the Union too much and he was getting tired of this Union; that the girls who testified against the Company would not work there any more. Hall had testified against the Company at the hearing in February 1960 in 130 NLRB 761. In substance Houck denied this testimony. Yerian was not asked concerning it and did not deny it. As Hall impressed me as a truthful and credible witness and as the attitude and sentiments attributed to Houck were consistent with the attitude and expressions of management and Houck in 130 NLRB 761, I credit Hall's testimony. By this statement to Yerian in the presence of the employees and within their hearing and obviously meant for their consumption, including the threat which was con- tained in it, Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent thereby violating Section 8 (a)( 1 ) of the Act. • At the conclusion of her workday on September 27, 1960, Yerian sent for Hall and told her in substance, according to the credited testimony of Hall, that he was sorry but that he had received orders to let her go, that she had caused him to lose two orders, and that either she would have to go or he would have to go himself. He told her to come in the next day to pick up her check. Respondent's testimony showed that Houck made the decision to discharge Hall and instructed Yerian to do so. In substance Respondent's position was that due to new competition in its area in the previous several months, Respondent had been striving to improve the efficiency of its operation, including the quality of its work, that it had urged the employees on the colored shirts, including Hall, to improve their work specifically to reduce the number of shirts that left the folding machines with damp seams-which dampness then seeped into other parts of the folded and finished shirts causing wrinkles and customer dissatisfaction. Although Yerian testified that more than a half dozen times in her last year of employment he took to Hall improperly folded and damp shirts, on the entire record I credited Hall's testimony that he never ATLAS LINEN AND INDUSTRIAL SUPPLY 1185 addressed himself to her individually on this score but always to the group of em- ployees on the colored shirt line, which presumably included the operator of the other automatic folding machine, Juanita Spivey. Houck testified that for about, 6 months Hall's work had been under par. To be noted is that during this period Respondent never discharged her for her alleged short- comings. The discharge was made only after Hall had, to Respondent's anguish, resumed her union activity. - In substance Respondent contended Hall was an inspector and bore the ultimate responsibility for seeing that the shirts which passed her were dry, particularly. in the seams. On her timecard she was classified as a shirt folder. Respondent had no classification of "inspector" though on his weekly report sheet Yerian carried Hall and the other folders as "folders and inspectors." Hall testified she was not an in- spector and had never been told she was. From Hall the shirts went to the sorting room where, in sorting and bundling them for customers, the sorters held out any obviously damp shirts or shirts needing mending. On the entire record, I believe and find that although Hall had some responsibility, she was not solely responsible for seeing that shirts did not go out damp. Rather, responsibility for the quality of the work rested upon all of the employees in their several operations, including the folders and the sorters. Yerian admitted in substance that many errors were made by sorters in passing shirts needing buttons or mending, but that no employee had been discharged because of garments being returned by customers with these defects un- repaired. He also admitted that Juanita Spivey on occasion passed damp shirts-but she was not discharged for it. By an impression put upon the shirttails by the two presses which fed to Hall, it was possible for management to trace back to Hall shirts returned by customers because seam moisture had wrinkled them. That this tracing was possible had never, for undisclosed reasons, been made known to Hall in the 7 years she had worked for Respondent. Nor were the shirts allegedly rejected by a customer, allegedly returned to the Company, on the day of Hall's discharge, and allegedly traceable to Hall, shown to Hall. Had the alleged return of these shorts been really contributory to the discharge of Hall, it appears to be that Respondent would have shown them to Hall on this occasion and would have explained that they were traceable to her. On the occasion of Hall's discharge by Yerian (upon instruction of Production Manager Houck), Yerian had Assistant Foreman Mundy bring from the hamper or basket Hall had been putting finished shirts into, a number of shirts which turned out to be damp. Yerian immediately jumped to the conclusion that Hall was re- sponsible for passing these damp shirts even though that day the "white shirt girls" had been assisting the "colored shirt girls" because the latter were "behind with our shirts" and the white shirt girls had been putting the colored shirts they worked on and passed into Hall's basket. Had Yerian not jumped to this conclusion and had he made inquiry, he might have discovered that the damp shirts had been passed not by Hall but by one or more of the "white shirt girls." His failure to make in- quiry indicated that he was seeking an excuse to carry out Houck's order to him, which was in substance that the next time he found poor work coming from Hall- dampness or improper folding-he should discharge her. The day after her discharge when Hall returned for her check she asked Pro- duction Manager Houck for her job back. Houck's reply was, according to the credited testimony of Hall, that she was too active in the Union. Although Houck denied that on this occasion he told Hall that she was discharged because she was too active in the Union, he did not deny that he told her when she asked for her job,back that she was too active in the Union. Under all the circumstances I credit Hall's testimony. On the entire record considered as a whole, I believe and find that Hall was discriminatorily discharged to discourage membership and activities in ,the Union and that poor workmanship was the pretext for, rather than the real reason for, the discharge. Factors leading to this conclusion are Respondent's and Houck's and- Yerian's hostility toward the Union as disclosed in 130 NLRB 761 and, in the record herein; Houck's and Yerian's knowledge of Hall's new efforts to organize the em- ployees in early September 1960, a few weeks before her discharge;. Houck's instruc- tion to Yerian to discharge Hall the next time her work was bad, even though Hall . was never warned individually and even though the entire record disclosed that other employees than Hall frequently passed defective work without being discharged for it or having instructions from Houck that they should be discharged for it; Houck's harsh statement 5 or 6 days before Hall's discharge, obviously intended for employee consumption, that 'these old' women are participating in the Union too much, that he was getting tired of this Union, and that the girls who had testified'against the 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company would not work there any more; Houck's remark to Hall the day after her discharge that she was too active in the Union; and the unconvincing nature of Respondent's defense. - Upon the entire record, I hold that by discriminatorily dis- charging Hall to discourage further membership and activity in the Union, Respond- ent violated Section 8 (a) (3) and (1) of the Act. IV. THE EFFECT OF, THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with the operations of 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 commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Respondent having unlawfully discharged Myrtle C. Hall and not having offered her reinstatement, I recommend that Respondent offer to her immediate and full reinstatement to her former or a substantially equivalent position,' without prejudice to her seniority and other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of the discrimination against her, by payment to her of a sum of money equal to that which she normally would have earned as wages from September 27, 1960, the date of her discharge and the date of the dis- crimination against her, to the date when, pursuant to the recommendations herein contained, Respondent shall offer her reinstatement, less her net earnings during said period (Crossett Lumber Company, 8 NLRB 440, 497-498), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. As provided in the Woolworth case, I recommend further that Respondent make available to the Board, on request, pay- roll and other records in order to facilitate the checking of the amount of backpay due. The violations of the Act committed by Respondent are persuassively related to other unfair -labor practices proscribed by the Act, and the danger of their com- mission in the future is to be anticipated from Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat. In order therefore, to make more effective the interdependent guar- antees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce and thus effectuate the policies of the Act, I shall recommend that Respondent be ordered to 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 in the case, I make the following: CONCLUSIONS OF LAW 1. Fred H. Johnson, Trustee Under the Will of Clay M. Thomas, Deceased, doing business as Atlas Linen and Industrial Supply, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By expressly and impliedly threatening employees with economic reprisal be- cause they assisted the Union and testified against the Company, Respondent inter- fered with, restrained, and coerced employees in the rights guaranteed in Section 7 of the Act, thereby violating Section 8 (a) (1) . 4. By discriminating in regard to the hire and tenure of employment of Myrtle C. Hall, thereby discouraging membership in the labor organization named in paragraph 2, above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 5. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 1 The Chaae National Bank of the City of New York , San Juan, Puerto Rico, Branch, 65 NLRB 827.