Noritake Co., Inc.

772 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD EMPLOYEES ENTITLED TO BACKPAY-Continued Period of backpay entitlement From- r o- Pagano, Peter___ ___________________________ June 24, 1961 Sept. 5, 1961 Pietrocarlo, Mary Ann______________________ June 24, 1961 Sept. 5, 1961 Quinn, Francis______________________________ June 24, 1961 Sept. 5, 1961 Reif, Joseph_ _______________________________ June 24, 1961 Sept. 5, 1961 Rodeghiero, Andrew_________________________ June 24, 1961 Sept. 5, 1961 Rog, Christine______________________________ June 24, 1961 Sept. 5, 1961 Rose, Sharon_______________________________ June 24, 1961 Sept. 5, 1961 Ryan, Michael______________________________ June 24, 1961 Sept. 5, 1961 San Filippo, Marie__________________________ June 24, 1961 Sept. 5, 1961 Saraceno, Rosario___________________________ June 24, 1961 Sept. 5, 1961 Sarana, Chester_____________________________ June 24, 1961 Sept. 5, 1961 Scarozza, Robert____________________________ June 24, 1961 Sept. 5, 1961 Schoen, George_____________________________ June 24, 1961 Sept. 5, 1961 Shear, Amelia______________________________ June 24, 1961 Sept. 5, 1961 Short, Shirley------------------------------- June 24, 1961 Sept. 5, 1961 Smith, Patricia Ann_________________________ June 24 , 1961 Sept. 5, 1961 Torella, Armando___________________________ June 24, 1961 Sept. 5, 1961 Tarabula, Edward___________________________ June 24, 1961 Sept. 5, 1961 Turner, Margaret___________________________ June 24, 1961 Sept. 5, 1961 Vujanovich, Peter___________________________ June 24, 1961 Sept. 5, 1961 White, David L____________________________ June 24, 1961 Sept. 5, 1961 Zunner, Nancy_____________________________ June 24, 19611 ' Date of reinstatement. Noritake Co., Inc. and District 65, Retail , Wholesale and Depart- ment Store Union, AFL-CIO. Case No. 2-CA-8469. November 1,1962 DECISION AND ORDER On July 5, 1962, Trial Examiner Lloyd Buchanan issued his Inter- mediate Report in the above-entitled proceeding, finding that the. Respondent had not engaged in certain unfair labor practices but finding that it had engaged in certain other unfair labor practices, as set forth in the attached Intermediate Report. However, he rec- ommended that the complaint be dismissed in its entirety. There- after, the Charging Party and the General Counsel filed exceptions to the Intermediate Report and supporting 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 [Members Rodgers, Leedom, 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, exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts the Recommended Order of the Trial Examiner. 139 NLRB No. 62. NORITAKE CO., INC. 773 INTERMEDIATE REPORT AND RECOMMENDED ORDER The complaint herein, as amended (issued March 30, 1962; charge filed February 15, 1962), alleges that the Company has violated Section 8(a)(3) of the National Labor Relations Act, as amended, 73 Stat. 519, by discharging Thomas Lee, Ben Cappellino, George Riker, Robert Hagon, and Peter Burke on or about February 8, 1962, and failing and refusing to reinstate them, because of their union and other protected concerted activities; and Section 8(a)(1) and (5) of the Act by said alleged acts, by unlawful interrogation , threats, and promises of benefits, and by refusing to recognize or bargain with the Union as the exclusive collective bar- gaining representative of its employees in an appropriate unit. The answer admits the discharges but denies the allegations of unfair labor practices. A hearing was held before Trial Examiner Lloyd Buchanan at New York, New York, on June 4 and 5, 1962, and at the close the General Counsel and the Com- pany were heard in oral argument . Pursuant to leave granted to all parties, a brief has been filed by the Company. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Company, a New York corporation with its principal office and a warehouse in New York, New York, and other places of busi- ness in the States of Georgia and Texas, is engaged at wholesale in the sale and distribution of chinaware and related products ; that it annually sells and distributes products valued at more than $100,000, of which products valued at more than $50,000 were shipped from said warehouse to States other than the State of New York; that it annually purchases products valued at more than $ 100,000, of which products valued at more than $50,000 are purchased and transported to its places of business in the United States in foreign commerce from foreign countries; and that it is engaged in commerce within the meaning of the Act. It was admitted and I find that the Union is a labor organization within the meaning of the Act. H. THE UNFAIR LABOR PRACTICES A. Facts The significant events here occurred between February 5 and 8, 1962, with addi- tional reference to February 9 and May 7 and 8 . Rogers, the warehouse foreman, went first to the Company's office at the beginning of each day, receiving there va- rious papers and instructions for the work which he and the five employees at the warehouse were to perform. From the office he would go to the warehouse, some five avenue blocks away, arriving at approximately 10 a.m . The warehouse em- ployees' workday began at 9 a.m., and one of them, Cappellino , had a key. On February 5, when Rogers arrived at the warehouse about 9 :45 a.m., he found the five playing cards around a table on the mezzanine floor . It is not disputed that there was work for them which they should have been doing. I do not credit the denials that they had been playing or the employees ' testimony that they played cards only during their lunch hour . Rogers testified credibly that he told the men to get to work and that they did, except for Burke, who told him that he had a sore back, had called the personnel manager, Miss Yamaguchi, at the office, and was waiting for her to call back. At the office the next morning Rogers reported the incident to Miss Yamaguchi, who at once called a conference which was attended by these two, Matsushita, the company president, and Sugihara, a chairman of the board of directors . On Miss Yamaguchi's recommendation , it was decided that all five warehouse employees would be discharged when they came to the office for their pay after work on February 8, the workweek ending on Wednesday, February 7. In the meantime, on the evening of February 7, the five employees went to the Union's office, where they signed membership application cards and paid the fee. As will be noted infra, Nattman, a union organizer, appeared at the warehouse on the morning of February 8 and told Rogers that he would like to meet and bargain with management . He was told to notify the office, and on the morning of the 9th (after the discharges ) Turbane, another organizer, did go to the office, declared that he represented the employees , and asked that all five be reinstated. T urbane warned of a strike, and the office and warehouse have been picketed since. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The alleged violation of Section 8(a) (3) Although Cappellino testified that he "always had to answer to somebody and the way they told you to do work , they sort of like treated you like dirt," he cited no instances, recent or remote, of such conditions which , he claimed, "weren't very good ." Nor did the other employee witnesses refer to ill treat- ment by the Company. As for job security, Cappellino had himself been employed for 23 years. I credit the testimony that the five were playing cards on working time when Rogers arrived on the morning of February 5, and I find as a fact that the security which they now sought was against discharge for a valid reason, especially after Miss Yamaguchi's brother came to the warehouse on Feb- ruary 6 and charged them with playing cards the day before. The employees' own evident appraisal of their conduct supports the Company 's; there was sufficient reason for discharging them. The reference by Yamaguchi (the brother) and Rogers on February 6 to the card playing and the talk of discharge was something important which had now "come up" and prompted the employees' visit to the Union and their joining. (We shall note, infra, the different testimony concerning the time when this latter was first discussed among the employees.) The question remains whether , although it had valid reason for the discharges, the Company in fact would have ignored such reason but for the union activity, and thus acted discriminatorily . Here it must be noted that Rogers had not re- ported occasions when the men played cards beyond their lunch hour ; company officials had no knowledge of that. At the office on February 6, however, he did report the incident of the day before because "things was getting too bad. Things was getting way out of hand. [He] just simply come to the point where [he] couldn't take much more." This I believe . (Rogers testified to a scuffle with Riker after this ; the latter placed it in the preceding week. ) The Company now learned of the card playing, not merely beyond the lunch hour but presumably through the morning until Rogers' arrival from the office; and this was before the men went to the union office. The several witnesses for the Company credibly testified that on the basis of Rogers' report, the Company on the morning of February 6, decided to discharge the five when they came for their pay on the 8th. As already noted and as we shall further see, the Union's first approach was made on the morning of Febru- ary 8, and its first request for bargaining made to a responsible company repre- sentative on February 9. Whatever else might be argued concerning any reaction by the Company to the report that the warehouse employees had been playing cards during working time, it was nondiscriminatory, having occurred prior to the employees ' first approach to the Union and any suggestion of concerted activities ; and aside from the conference which was immediately held, the seriousness with which the Company viewed this is suggested by Rogers ' report to Miss Yamaguchi and her brother's visit , infra, to the warehouse in this connection and his confrontation of the employees. With respect to Burke, we have seen that he was not to work while he awaited Miss Yamaguchi's call. But he was playing and involved with the others, who should have been working. Nor did he attempt any explanation or remind Miss Yamaguchi when she questioned the group about their playing. There is no suggestion of discriminatory motivation or action by the Company in, according to Burke, who had joined the others in their improper activity ( it can scarcely be said that his playing was proper ), the same treatment which it gave to the others The question here is whether the discharges were in fact decided upon on the morning of February 6 or whether they were prompted by knowledge of union activities and therefore discriminatory. An element of confusion. if not doubt or suspicion , was injected by the testimony that Rogers allegedly spoke of discharg- ing only one man . This was after the decision to discharge all five, which was based on the incident of February 5; it does not appear that earlier shortcomings were reported to the Company or played a part in this decision , or that Rogers was discriminatorily motivated in reporting as he did on February 6. But accord- ing to Riker, who uncertainly placed this on the morning of February 7, Rogers also told him that he was to have been discharged but would not be since Rogers had spoken up for him . Important as this would have been , Riker did not recall whether it had been told to him on the evening of February 6 or the morning of February 7 I credit Rogers' denial of any such statement which would suggest that the Company had not decided to discharge the five. He had been directed not to tell the employees that they would be discharged ; he did not give Riker a tale of individual treatment. NORITAKE CO., INC. 775 We need not speculate whether Riker was sensitive or concerned because of a recent physical altercation with Rogers . The latter testified that from a sarcastic remark which he had made and which we are about to consider , Riker "had picked it up as to where he felt that he was the one that had to be fired ." We are thus asked to believe that it had been decided to discharge only one, and that this decision was thereafter changed . I do not believe this. I find rather that the decision was made on the morning of February 6 to discharge all five, as the Com- pany's witnesses credibly testified. The consistency of the latter testimony is marred only by Rogers' alleged refer- ence to the discharge of one. I credit Rogers' testimony that he explained to Yamaguchi and the employees that his remark on February 6, when Yamaguchi had said there were apparently too many men there, to the effect that they should decide among themselves that one or which one was to be fired, was spoken in sarcasm: since they were making the decisions , having decided not to work and to play cards, they could decide on any action to be taken if there were too many of them. Whether Riker was telling the truth when he testified that the first time anyone spoke to him of the Union was on February 6, or Cappellino when he testified that he asked the others to join a week or two before , need not be decided . Further on the issue of credibility, it may be noted that a claim of discrimination was early injected as it was testified that Burke told Miss Yamaguchi that the card playing concerning which he asked was not the reason for the discharges ; he allegedly said this after she had given the men their wages for the last payroll period in cash and for the extra day by check and then told them that they were discharged. But both Miss Yamaguchi and Riker testified that she first paid them for the 2 weeks, then asked about the card playing ( Riker said that it was at this point that Burke suggested that there was another reason ; Miss Yamaguchi testified credibly that Burke said only that they did not car e to answer her question about playing cards), and thereafter gave them the checks for the last day. From Miss Yamaguchi's testimony not only had she not given them the checks , but she had not yet dis- charged them when she asked about the card playing; there was no basis at that point for any remark by Burke concerning another reason for discharge. As for the point that no deduction was made for the time lost while the men played on the morning of February 5, that is of little moment . However serious the offense, a deduction therefor would have been trifling in view of the more serious steps taken, and aside from the credible explanation concerning preparation of the payroll . If, as the General Counsel argues , the method of payment was "clumsy," it was satisfactorily explained and not shown to have been discriminatory. As noted, the credible evidence indicates that the Company decided to discharge these employees, and for sufficient reason , before the commencement of union ac- tivities, and of course before it had knowledge thereof. Employees may join a union and engage in other protected concerted activities , and they may not be discharged therefor. But such activities do not immunize them against lawful and nondiscriminatory discharge, as here. As the General Counsel has recognized, "We don't have here clearly an anti-union sentiment coming out of the month of" company officials . Even if the Company is responsible for what Yamaguchi said, infra, his attitude is not representative of any displayed by or chargeable to the Company. The employees' subsequent application to the Union after the decision to discharge them did not make that decision or the discharges discriminatory. Nor is it clear how discrimination is indicated by the fact that the Company, finding it difficult to obtain satisfactory employees , discharged these who proved themselves to be unsatisfactory . Neither does the fact that the tasks formerly done by these employees are and have been in part performed by the Company's salesmen while the Company also avails itself of a public warehouse show discrimination. Were we called upon to determine the reasonableness of the discharges as a busi- ness proposition, and that is not our function , the fact is that these employees had not been replaced at the time of the hearing, 4 months later. C. The alleged independent violation of Section 8(a) (1) According to the Company, not even Miss Yamaguchi, who hired personnel and made the decisions or effective recommendations concerning their discharge, is a supervisor within the meaning of the Act. And no one at the warehouse responsibly directed the employees there! Rogers is in charge of the warehouse; he assigned work to these employees ; and his recommendation for discharge of an employee who he found was not suited for warehouse work was followed by the Company. Without further describing his functions , I find that Rogers is a supervisor within the meaning of the Act. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As for Yamaguchi, whatever his actual authority, whether because of his stock ownership, his membership on the board of directors, or his relationship to Miss Yamaguchi, he was permitted by the Company to act as one with authority and was so regarded' by the employees and by Rogers, himself a supervisor, to whom he "gave orders" as Miss Yamaguchi testified. Although Yamaguchi had resigned on January 25, this fact was not communicated to the employees, and he continued through February to perform his former duties although to a lesser extent as he helped to break in his successor and to clear up the inventory in the warehouse. While he was pictured as rather irresponsible himself (neither side called him to testify), and even if he did not reflect the Company's attitude, the Company is responsible for his interference with employees' concerted activities. On February 8, Yamaguchi came to the warehouse, directed Rogers to gather the men, and then in substance called them dirty rats for having stabbed him in the back by joining,the Union. According to Cappellino, Yamaguchi said that he had lost his job because of their action; and later declared that he did not know why Cappellino joined the Union, and asked what he wanted to leave it. (We have seen that Yamaguchi had resigned 2 weeks before.) We can discern interference or the tendency to interfere by these remarks, which are alleged as both interrogation and threats; and we can overlook the possible effect of Yamaguchi's statement that he had already lost his job, his authoritative status still being recognized. I find unlawful interference here. (The General Counsel's stated position is that, some of these remarks having been made in Rogers' presence, he is chargeable with them if, but only if, the Company is not directly chargeable for Yamaguchi' s acts.) Still on February 8, Yamaguchi then pointed out to Cappellino that he could have gotten him what he wanted without joining the Union, and suggested to him that the men leave the Union; he proposed the possibility of replacing Rogers with Cappellino, and an increase in salary and additional benefits if he would drop out of the Union, and help for other warehouse employees. Here was further unlawful interference. It is also claimed that on or about May 7, during the course of the picketing at the warehouse, Rogers proposed to Cappellino that the strike be settled between themselves by an agreement to compromise with respect to the amount of backpay, the Company to withdraw its objections to the payment of unemployment insurance compensation to the employees; further that on or about May 8, Weber, the Com- pany's traffic manager, made a similar proposal for settlement, offering sums of money to the men in return for statements that their charges or claims against the Company were false. According to Rogers, Cappellino told him that he was fed up with the entire matter and would be glad when it got to hearing, and he replied that it could be cleared up if the men would tell the truth, admitting that they were fired for playing cards. I resolve this issue of credibility in Rogers' favor. In support of this I find also that the alleged suggestion was neither within Rogers' authority nor in keeping with the authority which he assumed or which the employees recognized in him. As for Weber, he at first mistakenly placed on May 8 a conversation concerning payment to four of these five as part of a settlement; then recalled that it occurred on May 29. The issue with respect to such conversations (several allegedly occurred in May) is whether Weber promised benefits and thereby interfered with concerted activities as alleged, or whether the proposals came from the employees. Rogers also testified that both Hagon and Riker called him many times and proposed settlement, even to an escrow arrangement with Rogers, to which he replied that he had nothing to do with it as it was between them and the Company. This latter testimony stands uncontradicted, as does the testimony that top company officials, informed of the proposals by the men, took it up with the Board and would not settle without Board approval, which was not available in the form proposed. In keeping with the finding that settlement proposals were made by the strikers, and that company representatives did not make the alleged promises of benefit is Mat- sushita's uncontradicted testimony that Hagon called him and spoke of settlement but that Matsushita's stated position was that the Board could not he bypassed. If with respect to events after February these could still be called employees by regarding their cessation of employment as connected with a current labor dispute, or for any other reason, it is clear that whatever Weber's status or apparent status vis-a-vis these employees, settlement of the strike did not lie within the scope of his or Rogers' duties or even within their apparent authority. I find also that the strikers sought settlement in May, being more concerned with their own status than 1 Cf. Florida Steel Corporation ( Tampa Force and Iron Division ), 181 NLRB 1179, 1184 ; Joe Scharfstein, et at, d/b/a Stein-Way Clothing Company, 103 NLRB 1314, 1320 ; R. & J. Underwear Co., Inc., 101 NLRB 299, 301. NORITArE CO., INC. X77 with the Union's prospects; just as their original approach to the Union was motivated by recognition of their own unmeritorious position. (An alleged admis- sion by Burke to Weber to this effect need not be considered.) I find that Rogers and Weber did not in fact, and had no semblance of authority to, make the promises alleged, but that the employees sought such promises. The allegation of unlawful promises in May must therefore fail. Of the testimony by the various witnesses who charged interference, I credit only that laid to Yamaguchi. But as noted supra, the Company's attitude was correct, and the effect of Yamaguchi's interference minimal in view of his announce- ment that he had himself lost his job and their own immediately imminent discharge. D. The alleged violation of Section 8(a) (5) The warehouse employees have been functionally distinct and homogeneous in the performance of their duties. As ? stated at the hearing, i find that the following constitutes an appropriate unit for the purpose of collective bargaining within the meaning of the Act: All warehouse employees, exclusive of office clerical employees, professional employees, guards, watchmen, and all supervisors as defined in the Act. I find further that on February 7 the employees in that unit designated the Union as their collective-bargaining representative. With these facts recognized, the prior decision to discharge these employees on February 8 should effectively dispose of any request to bargain made on that or the following day But further, although the first union organizer to apepar on the scene testified that he told Rogers at the warehouse that he represented the employees and "would like to meet with management to negotiate a contract," and that Rogers replied that "ne didn't handle that . . . he would notify the people in the main office as soon as possible," he did not give the impression of keen recollection as he even failed to recognize Rogers at the hearing until the latter was pointed out to him. Cappellino's version was that Rogers disclaimed authority and said that Nattman would have to notify the office; and the latter said that he would. According to Ro,-ers, he told Nattman th,)t the latter was talking to the wrong man and would ha""e to go to the main office; at Nattman's request he agreed to tell the office that Nattman had been there Nattman did not communicate with the office. and I find that the Company did not on February 8 receive any sufficient request to bargain. What the situation would have called for had a request for recognition and bargaining been made to the Company after the decision to discharge but before the discharges were effected, is a question which we need not consider. I find that there was no unlawful refusal to bargain. It may be noted that this is hardly a Joy Silk Mills, Inc.,2 situation. In the absence of discriminatory discharges, and the decision to discharge having been made pre- viously, it cannot reasonably be found that the interference, to the extent and at the time when it occurred, prevented an election and constitutes a refusal to bargain- this aside from the fact that no sufficient request to bargain was made until after the discharges .3 Certainly it cannot be found that there was a causal relationship be- tween the intereference found and the General Counsel's or the Union's inability to establish a refusal to bargain. III. THE REMEDY Interference has been found in Yamaguchi's promise of benefit and less readily defined remarks on February 8, and we have seen that the Company was responsible for his utterances to the employees. The fact that Yamaguchi was to some extent in his cups may lessen the violation in this respect but does not negate it. But having said this, we should add that not only is there no showing that company officials knew of these violations, so that they could not disavow them; but the Company was itself dissatisfied with Yamaguchi, as the employees were informed, and had already ob- tained his resignation. Nor, without minimizing any tendency to interfere inherent in the remarks, were the employees here restrained or interfered with in their con- certed activities; the circumstances minimized the possibility. Under these circum- stances and while still recognizing the violations as such, I find that it will not effectuate the policies of the Act to issue an order against the company. I shall there- fore recommend that the complaint be dismissed in its entirety. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: 2 85 NLRB 1263. 8 Cf Orkin Ecaterminating Company of Kansas, Inc., 136 NLRB 630 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. All of the Company's warehouse employees, exclusive of office clerical employ- ees, professional employees, guards, watchmen, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. The Union was on February 7, 1962, and thereafter the exclusive representative within the meaning of Section 9(a) of the Act, of all employees in the aforesaid unit for the purposes of collective bargaining. 4. By,promise of benefit and other remarks, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Company has engaged in unfair labor practices within the meaning of Sec- tion 8 (a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. The Company has not engaged in unfair labor practices within the meaning of Section 8(a),(3) of the Act. 7. The Company has not engaged in unfair labor practices within the meaning of Section 8(a) (5) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety. International Union of Operating Engineers, Local 545 and Syra- cuse Supply Company. Case No. 3-CC-142. November 2, 1962 DECISION AND ORDER On December 26, 1961, Trial Examiner Thomas F. Maher issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and 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 Intermedi- ate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner to the extent that they are consistent herewith. 1. A majority of the Board, consisting of Members Rodgers, Leedom, and Fanning, adopts the Trial Examiner's findings and con- clusions that the Respondent violated Section 8 (b) (4) (i) and (ii) (B) by its conduct at the Bero jobsite.1 The members of the majority agree with the Trial Examiner that one object of the Respondent 1 As set forth in their separate dissent attached hereto, Chairman McCulloch and Mem- ber Brown would reverse the Trial Examiner's findings regarding the Bero site. 139 NLRB No. 50.