Dalton's Best Maid Products, Inc.

DALTON'S BEST MAID PRODUCTS, INC. 755 Dalton's Best Maid Products, Inc. and International Union of United Brewery, Flour, Cereal, Soft Drink, and Distillery Workers of America, AFL-CIO. Cases Nos..16-CA-1732 and 16-CA-1761. May 24, 1963 DECISION AND ORDER On March 7, 1963, Trial Examiner C. W. Whittemore 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 and the General Counsel filed exceptions to the Intermediate Report. The Respondent also filed a 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 [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner as supplemented herein.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner? 1 In adopting the Trial Examiner's determination discrediting the testimony of General Manager Dalton that the November and December 1962 layoffs of Boker, Fuller, and Robinson were due to lack of orders following the Cuban situation, rather than to the Respondent's desire to discourage membership in the Union, we also rely upon: (a) the uncontradicted testimony of Boker that on October 22, 1962, the Respondent discontinued a weekly Fort Worth-El Paso run lasting from 4 to 5 days, which he theretofore custom- arily performed, and assigned the run to Merchant Freight Motor Co., a common carrier ; and (b ) Boker's testimony that in September 1962 Sales Manager Campsey stated to him that if the drivers didn't stay away from the Union, the Company "would fire [all of them] and ship by common carrier." [Emphasis supplied ] For the reasons stated in the dissenting opinion in Isms Plumbing & Heating Co., 138 NLRB 716, Member Rodgers would not award interest on backpay. z The Appendix attached to the Intermediate Report is hereby modified by adding the following immediately below the signature line at the bottom of the notice: NOTE.-We will notify the above-named employee, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 142 NLRB No. 93. 712-548-64-vol. 142-49 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE An original and an amended charge in Case No. 16-CA-1732 were filed on September 24 and October 17, 1962, respectively, by the above-named labor or- ganization. Upon these charges a complaint and notice of hearing were issued and served by the General Counsel of the National Labor Relations Board on November 8, 1962. In Case No. 16-CA-1761 the same labor organization filed an original and an amended charge on November 21 and 28, 1962, respectively.' On January 3, 1963, General Counsel issued an order consolidating the two cases and a complaint and notice of hearing in the latter case. The above-named Respond- ent filed answers dated November 15, 1962, and January 11, 1963. The com- plaints allege and the answers deny that the Respondent has engaged in unfair labor practices in violation of Section 8(a) (1) and (3) of the National Labor Relations Act, as amended. Pursuant to notice, a hearing was held in Fort Worth, Texas, on January 23 and 24, 1963, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs have been received from the Respondent and General Counsel. Upon the record thus made and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Dalton's Best Maid Products, Inc., is a Texas corporation, with its place of busi- ness at Fort Worth, Texas, where it is engaged in the manufacture and sale of food products. During the year before issuance of the complaint it purchased and received goods and materials valued at more than $50,000 directly from suppliers located outside the State of Texas. The complaint alleges, the answer admits, and it is here found that the Respond- ent is engaged in commerce within the meaning of the Act. H. THE CHARGING UNION International Union of United Brewery, Flour, Cereal, Soft Drink, and Distillery Workers of America, AFL-CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and issues The chief issues raised by the complaint arise from the admitted discharge of one employee, Earl Huffman, in October 1962 and the subsequent temporary lay- offs of employees Calvin Boker, Darryl Fuller, and Eugene Robinson. Both the discharge and the layoffs were imposed in a context of management's openly avowed hostility toward self-organization of the Respondent's truckdrivers. The sequence of certain relevant events is as follows: Of the approximately 12 regular truckdrivers employed at the time, 8 signed union cards when organization began on September 15, 1962. Two days later the Union filed a petition for certification with the Board. A hearing on the petition was held October 8. One week later the employment of Earl Huffman was ter- minated. On October 19 an election was ordered by the Regional Director. On November 1 drivers Boker, Fuller, and Robinson were laid off 2 days. The elec- tion was held on November 10, and resulted in the Union being certified on No- vember 20. Three days later Boker was again laid off, this time for 5 days, and in mid-December employee Fuller was also laid off for 1 week. 1 These two charges were inadvertently omitted from the formal documents placed in evidence at the opening of- the hearing. Since the close of the hearing the Trial Examiner has received a stipulation signed by all parties requesting that the said docu- ments be received in evidence. The request is granted. The stipulation and the documents attached are hereby made a part of the record in the case DALTON'S BEST MAID PRODUCTS, INC. 757 B. Interference, restraint and coercion The credible testimony of employees involved-testimony which for a substan- tial part is without specific contradiction-establishes the following facts: (1) Shortly after employees signed union cards on September 15 J. O. Dalton, president of the Company, interrogated several employees as to whether or not they had joined the Union. Dalton also asked employee Posa who had "started" the organizing. (2) Late in September or early in October, J. O. Dalton told driver Emerson that he would give him $200 if he would get three or four other drivers to vote against the Union. At the same time Dalton told Emerson that there were two concerns which wanted to buy the business-and that he would sell if the drivers "went Union." A few days after Huffman was terminated in October, J. O. Dalton in fact did give Emerson $20, telling him to keep it as "expenses," although Emerson protested that he had already received an expense check for the trip he was about to make .2 (3) About a week after other drivers had come to his home to sign union cards on September 15 driver Calvin Boker was told by Garland Dalton, vice president and general manager, that if he "persisted" in his union activities he would have to take an "I.C.C. physical" examination which, because of his faulty eyesight, the employee knew he could not pass. (4) During the organizing period Sales Manager Otis Campsey, admittedly a management representative, a Asked driver Boker if he was "thinking" of going union. He told Boker that if they would "stay away from the union" wages would be raised, but if they did not the drivers would be fired and shipments would be made by common carrier. b. Asked driver Emerson if he was going to "stay" union, and told him that if he would vote against it he could have a job as long as he wanted it. c. Asked driver Day if he would "forget about" the Union were he promised a raise.3 The foregoing interrogations, threats of reprisals, and promises of benefits not only constitute interference, restraint, and coercion of employees in the exercise of rights guaranteed by the Act, but clearly reveal the context of hostility toward union activity in which the discharge and layoffs occurred. C. The discharge of Huffman The employment of Earl Huffman, an over-the-road driver, was terminated on October 15, 1962. At the time of the hearing he had not been reinstated. The Trial Examiner concludes and finds that he was effectively discharged as of the termination date. The conclusion is reached despite the various and shifting claims made by the Respondent, through General Manager Dalton, as to the term applicable to the employee's separation from service. As a witness at the hearing Dalton contended, in effect, that on October 15 he merely intended to lay off Huffman temporarily, and admitted that he had told a Board agent on October 22, in an affidavit, that the driver had been laid off due to a reduction in force, but that he would be "glad" to recall him when needed. Dalton then claimed that immediately following this interview with a Board agent his secretary brought to his attention certain derelictions on Huffman's part as to which he had had no previous knowledge, and that upon being thus informed he decided that he would consider the temporary layoff to be a perma- nent discharge. Yet the Respondent's answer, dated November 15, after the date Dalton claims to have made his decision of discharge, alleges that Huffman was laid off because of a "necessary reduction in force." Dalton's testimony is fully discredited by self-contradictions. After twice insisting that he knew of none of three certain matters until informed of them by his secretary, his later testimony establishes that he was wholly aware of at least two of them on or before October 15, the date of the claimed layoff. After admitting, apparently unintentionally, that he knew of these 9 J. 0. Dalton was not called as a witness. Counsel for the Respondent introduced into evidence a ,letter from a local physician which stated that in his opinion it would be "detremental" [sic] for him to "appear as a witness at any time" because of previous heart attacks. No application was made by counsel, however, for the taking of a deposition 3 Campsey admitted (1) having "conversations" with employees about the Union ; (2) that he asked Day if it was true that "they were going union"; and (3) that he asked Emerson if be was "going union," but denied having promised Emerson a "job for life" and having promised Day a pay raise. The denials are not credited. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two matters, one a gas ticket and the other a failure to make out certain I.C.C. logs, Dalton's testimony makes it plain that in his opinion neither was a serious dereliction, or a cause for dismissal. He said he checked the gas ticket, and found nothing wrong. As to the failure to make out the log, he merely spoke in September to Huffman and another employee who also had failed for some time to make out the logs. Other evidence suggests the reason why Dalton could not reasonably, if he would have, used the log factor as basis for a discharge. The testimony of both employees establishes that they were required to drive for a number of hours exceeding the limit permitted by Interstate Commerce Commission regulations and both declined to make out false reports. And as to the third item-a minor accident causing some damage to a company salesman's car, undisputed evidence establishes that J. O. Dalton knew of the incident at the time of its occurrence, nearly 3 months before the discharge, and took no action regarding it. In short, the Trial Examiner finds no merit in any of the various claims by Dalton as to why Huffman was let go. It is uncontradicted that J. O. Dalton became aware of Huffman's union activity and adherence, by his own interrogation of the driver as early as September 20. That his leadership was thereafter and more openly brought to management's at- tention is shown by the fact that he served as the union representative at the Board election, and shortly thereafter appeared as one of the two employee members of the union negotiating committee. When laid off on October 15 Huffman was told by Garland Dalton that he was being "let go" because of lack of work. He protested that drivers with less seniority were being retained. Yet shortly after the layoff-and about a week before the election-the Respondent sent each of the employees a bitterly antiunion letter in which it is stated, "We have never reduced the number of people in this plant because of slow-downs." The Trial Examiner is convinced and finds that the Respondent terminated the employment of Earl Huffman on October 15, 1962, to discourage union member- ship and activity, and that this unlawful dismissal interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. D. The layoffs On November 1, a few days before the scheduled election, drivers Boker, Robinson, and Fuller were suddenly and without previous notice laid off for 2 consecutive days by Garland Dalton, being told that there was no work for them. All three were known union adherents. (As noted above, Garland Dalton had warned Boker about "persisting" in his union activities. Upon interrogation by J. O. Dalton, Robinson had admitted that he had joined with others "in this union thing." And when asked by Campsey, Fuller had admitted that he had joined.) As a witness Garland Dalton explained this layoff in these words: Well, for the first time in our lives, since we've been in business out there, right after that Cuban thing we didn't get an order. For four days we went without an order. It's one of the most unbelievable things that's ever happened to us. The Trial Examiner quite agrees with Dalton's characterization. It is unbelievable. Not only because of the several self-contradictions in Dalton's other testimony, but also because of certain undisputed and relevant facts. On the second day of the layoff, when the three drivers reported for work, but were told by Dalton to take another day off, they found Charles Scallon, who had charge of the drivers and is an admitted "conduit for management," Carl Koch, J. O. Dalton's grandson, and others were doing the work which the three drivers customarily performed when not driving. On this occasion, as they were leaving upon Dalton's instructions, Koch asked them why. When told, Koch replied that there was plenty of work there for them. When the three were permitted to return to work, the third, day, there were six new but temporary employees on the job to help catch up with the work.4 The Trial Examiner concludes and finds that the layoff of the three drivers for 2 days was for the purpose of discouraging union membership. On November 23, immediately after the Respondent was informed of the Union's certification, Calvin Boker was again laid off by Garland Dalton, this time for a full 4 The Trial Examiner can place no reliance upon the testimony of Scallon who, as a witness for the Respondent, at first testified to the effect that the warehouse was full on November 1 and 2, so certain unloading could not be effected . On cross-examination he admitted lie could not recall whether or not lie unloaded the material on those dates DALTON'S BEST MAID PRODUCTS, INC. 759 week. He was merely told that there would be no run for him and to take the week off. On December 14 Fuller was also laid off for a similar period, being told by Dalton that there was nothing for him to do, so he would have to "take a week off." Dalton gave no credible reason supported by any company records for these later layoffs of Boker and Fuller. The Trial Examiner is convinced and finds that the two layoffs in November and December were precipitated by the same unlawful motive which brought about the layoffs in October, and that all constituted inter- ference, restraint, and coercion of employees in the exercise of rights guaranteed by the Act. IV. 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 the operations of the 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 thereof. V. THE REMEDY Having found that the Respondent unlawfully discriminated in regard to the hire and tenure of employment of the four employees involved herein, the Trial Ex- aminer will recommend that the Respondent offer Earl Huffman immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him and employees Boker, Fuller, and Robinson whole for any loss of earnings they may have suffered by reason of the discrimination against them, by the payment of each of a sum of money equal to that he normally would have earned during the period, or periods, of discrimination, with backpay and interest thereon computed in the manner pre- scribed by the Board in F. W. Woolworth, 90 NLRB 289, and Isis Plumbing & Heating Co., Inc., 138 NLRB 716. In view of the serious and continued nature of the Respondent's unfair labor practices, it will be recommended that it cease and desist from in any manner infring ing upon the rights of employees guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 2 By discriminating in regard to the hire and tenure of employment of Earl Huffman, Calvin Boker, Eugene Robinson, and Darryl Fuller, thereby discouraging membership in and activity on behalf of the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, it is recommended that Dalton's Best Maid Products, Inc., its officers, agents, successors, and assigns, shall: I Cease and desist from: (a) Interrogating employees concerning their union adherence in a manner viola- tive of Section 8(a) (1) of the Act. (b) Directly or by implication threatening employees with economic reprisals or promising them benefits to discourage union membership and activity. (c) Discouraging membership in International Union of United Brewery, Flour, Cereal, Soft Drink, and Distillery Workers of America, AFL-CIO, or in any other labor organizations, by discharging, laying off, or refusing to reinstate any of its employees or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) In any other manner interfering with , restraining, or coercing employees in the exercise of the right to self-organization , to form labor organizations, to join or assist the above-named or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action , which will effectuate the policies of the Act: (a) Offer Earl Huffman immediate and full reinstatement to his former or sub- stantially equivalent position , without prejudice to his seniority and other rights and privileges , and make him and Calvin Boker , Darryl Fuller , and Eugene Robinson whole for any loss of pay they may have suffered by reason of the unlawful dis- crimination against them, in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying all records necessary to analyze the amounts of pay due and the right of reinstatement under this Recommended Order. (c) Post at its plant in Fort Worth , Texas, copies of the attached notice marked "Appendix " 5 Copies of said notice , to be furnished by the Regional Director for the Sixteenth Region, shall , after being duly signed by the Respondent's authorized representative , be posted by the Respondent immediately upon receipt thereof, in conspicuous places , and maintained for a period of 60 consecutive days. Reason- able steps shall be taken to insure that said notices are not altered , defaced, or covered by any other material (d) Notify the Regional Director for the Sixteenth Region , in writing , within 20 days from the date of the receipt of this Intermediate Report and Recom- mended Order, what steps the Respondent has taken to comply herewith .6 fi In the event that this Recommended Order be adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice . In the further event that the Board ' s Order be enforced by a decree of a United States Circuit Court of Appeals , the words "A Decree of the United States Court of Appeals, Enforcing an Order " shall be substituted for the words "A Decision and Order" U In the event that this Recommended Order be adopted by the Board, this provision shall he modified to read: "Notify the said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act , as amended , we hereby notify you that WE WILL NOT interrogate employees regarding their union adherence in a manner violative of Section 8 (a) (1) of the Act. WE WILL NOT threaten employees with economic reprisals or promise them benefits in order to discourage membership in any labor organization. WE WILL NOT discourage membership of any employee in International Union of United Brewery, Flour , Cereal , Soft Drink , and Distillery Workers of America , AFL-CIO, or in any other labor organization, by discharging, laying off, refusing to reinstate any employee , or in any other manner dis- criminating against any employee in regard to hire, tenure of employment, or any term or condition of employment. WE WILL NOT in any manner interfere with, restrain , or coerce employees in the exercise of the right to self-organization , to form labor organizations, to join or assist the above-named or any other labor organization , to bargain collectively through representatives of their own free choice, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities WE WILL offer Earl Huffman immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges , and make him and Calvin Boker, Darryl Fuller, and Eugene Robinson whole for any loss of pay they may have suffered by reason of our discrimination against them. SKIRVIN HOTEL AND SKIRVIN TOWER 761 All our employees are free to become , or remain, or refrain from becoming and remaining members of the above-named or any other labor organization. DALTON'S BEST MAID PRODUCTS, INC., Employer. Dated- ------------------ By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas , 76102, Tele- phone No. Edison 5-4211 , Extension 2131 , if they have any question concerning this notice or compliance with its provisions. James Hotel Company, a Corporation d/b/a Skirvin Hotel and Skirvin Tower and Hotel & Restaurant Employees and Bar- tenders International Union, AFL-CIO, Local No. 246. Case No. 16-CA-1737. May 24, 1963 DECISION AND ORDER On February 26, 1963, Trial Examiner C. W. Whittemore 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 General Counsel and the Respond- ent 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 [Chairman McCulloch and Members Leedom and Brown]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations to the extent consistent herewith. 1. We find, in agreement with the Trial Examiner, that the Re- spondent violated Section 8(a) (1) of the Act by the following con- duct : (a) On July 27, 1962, Chef Barnes warned employees that if the Union "came in" he would no longer assist them to borrow money from Respondent as he had in the past; 1 that the Respondent would I Although the Trial Examiner found that Barnes stated he would no longer lend them money, the testimony is that Barnes stated he would no longer act as intermediary be- tween them and Mr. James, the Respondent 's board chairman . Member Leedom agrees with this finding of violation because, insofar as appears from the record, Barnes ' threats related to loans which the Respondent itself had previously made to employees. See Hill & Hill Truck Lines, Inc., 120 NLRB 101, 110. He regards as distinguishable the Board's 142 NLRB No. 89.