Home Care Products, Inc.

270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Home Care Products, Inc. and Local 295, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 92-CA-910. March 6, 1964 DECISION AND ORDER On October 29, 1963, Trial Examiner John C. Fischer issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. The General Counsel filed a brief in support of the Trial Examiner's Decision and a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, as modified herein. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner .2 'The Trial Examiner inadvertently stated that Respondent had subjected to extensive cross-examination all three of General Counsel 's witnesses. However, the record indicates that only one of the General Counsel 's witnesses , namely, Harry Davidoff, was extensively cross-examined. While we correct this error , it in no way affects the Trial Examiner's ultimate findings or our concurrence therein. 2 The Recommended Order section in the Trial Examiner's Decision is hereby amended by substituting for the first paragraph therein the following paragraph: Upon the entire record in this case; and pursuant to Section 10(c) of the National Labor Relatiops Act, as amended , the National Labor Relations Board hereby orders that the Respondent, Home Care Products , Inc., its officers, agents, successors, and assigns, shall: . The Recommended Order section is further amended by substituting for paragraph 2(a) therein the following paragraph: (a) Post at its plant in Jamaica , New York, copies of the attached notice marked "Appendix." ' Copies of said notice, both in English and Spanish ,- to be furnished by the Regional Director for the Second 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 Respondent to insure that said notices are not altered , defaced, or covered by any other material. - 146 NLRB No. 28. HOME CARE PRODUCTS, INC. 271 TRIAL EXAMINER'S DECISION Upon a charge filed March 20, 1963, by Local 295, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 295, a complaint was issued April 29, 1963, against Home Care Products, Inc., herein called the Respondent, alleging that it had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act. The case was heard before Trial Examiner John C. Fischer at New York City on July 25 and 26, 1963. The gravamen of the complaint was that the Respondent, during the course of Local 295's organizational campaign, attempted to persuade its employees to aban- don their support of Local 295 by: (1) Making arrangements for another union to solicit for membership among its employees during working time; (2) initiating the circulation among its employees of a petition by which the signatories indicated that they did not wish to support Local 295; (3) inducing its employees, by threats and promises, to sign the petition; and (4) inducing its employees, by threats and promises, to abandon and renounce Local 295 and to refrain from engaging in concerted activity in behalf of Local 295. Upon the entire record in the case, including my observation of the witnesses, and after due consideration of the briefs filed by Respondent Counsel and General Counsel, I make the following: FINDINGS AND CONCLUSIONS 1. THE JURISDICTIONAL FACTS Respondent is and has been at all times material herein a corporation duly orga- nized under, and existing by virtue of, the laws of the State of New York. At all times herein, Respondent has maintained its principal office and place of business at 95-20 150th Street, Jamaica, in the city and State of New York, where it is, and has been at all times material herein, engaged in the manufacture, assembling, pack- aging, sale, and distribution of accessories for vacuum cleaners, floor polishers, and related products. During the past year, which period is representative of its annual operations generally, Respondent, in the course and conduct of its business operations, manufactured, assembled, packaged, sold, and distributed at its place of business, products valued in excess of $300,000, of which products valued in excess of $50,000 were shipped from said place of business in interstate commerce directly to States of the United States other than the State in which it is located. Respondent is and has ' been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. IT. THE LABOR ORGANIZATIONS INVOLVED Local 295 is, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. International Production, Service and Sales Employees' Union is, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES A. Testimonial facts There were only three witnesses who testified in this case. The first was Harry Davidoff, secretary-treasurer of Local 295, and two employees, Angel Melendez and Juan Jiminez. There are no credibility conflicts arising by reason of differing versions of the same events recited by opposing witnesses. Except for extensive cross-examination of all three of General Counsel's witnesses by Respondent Counsel, the pleadings, and legal arguments in the nature of evidence, no formal affirmative case was introduced by Respondent attorney. Instead, Respondent's counsel moved for a dismissal of the complaint on the grounds that General Counsel had not made out a prima facie case within the meaning of the Act. This motion, in effect, at common law would have been a demurrer to the evidence. Both parties stood on their interpretations of Respondent's motion and submitted comprehensive briefs purporting to establish their respective positions. The legal effects and implications of the record facts are the bases of the contentions of respective counsel. Both Respondent Counsel Archer and General Counsel Strahley documented their briefs with citations of numerous Board and court cases. All of these cases have been carefully considered by me. 744-670-65-vol. 146-19 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel's first witness, Harry Davidoff, testified that at the close of business on March 7, 1963, he met with Respondent's employees outside of the plant at 150th Street, Jamaica, and invited them to join the Union: "I told them that I am from the union and I understand they wanted to join the union and I gave them cards and they signed the cards right there." Some 15 of the employees signed Local 295 cards. It was stipulated by counsel that on March 8 Local 295 dis- patched a telegram to Respondent in which the Union stated that it represented a majority of the employees, and requested that the Company recognize Teamsters Local 295 as the exclusive bargaining representative of its employees. The Com- pany employed about 20 people, most of whom were Puerto Ricans. Organizer Davidoff then testified that on March 11, Martin Bosses called him at Local 295's office and stated to Davidoff that Respondent had a contract with another union. According to Davidoff, when Bosses told him that he had a contract with another union, Davidoff answered: "I told him that the people knew nothing about it." Thereupon, on March 14, Davidoff went to the plant and met Martin Bosses and Respondent Counsel Archer in the office. Davidoff testified: "Mr. Archer said to me that he had been dealing with the Teamsters a long time, and if the Teamsters got in here they would put him out of business." On cross-examination by Respondent Counsel Leonard, Davidoff denied as being true: "As a matter of fact, didn't Mr. Archer ask what you were doing attempting to organize a plant of this type." Queried further by counsel: "Didn't Mr. Archer in effect tell you, or ask you, or state, Mr. Davidoff, that he couldn't understand why you were attempting to organize here due to the fact that there were no drivers, helpers, or warehousemen here?" Davidoff in reply testified: "The only thing Mr. Archer said about, that he had been dealing with the Teamsters a long time, and if the Teamsters got in here they would put him out of business." Following this colloquy Davidoff asked for and received permission to go into the plant and talk to the people. Davidoff recited that he went into the plant: "I told them [employees] that the company will notify me by Friday or Monday when they were ready to sit down and negotiate a contract." Further queried by counsel: "Didn't you state in the presence of both Mr. Archer and Mr. Bosses that if there wasn't immediate recognition there would be a strike," Davidoff denied that there was ever any discussion when the word "strike" was brought up. With reference to Respondent's promise to give Local 295 an answer by Friday or Monday, Davidoff testified to a telephone conversation with Archer as follows: "The conversation was that the company contacted the people and the people told him they didn't want the union, so it's no sense in any negotiating a contract." According to Davidoff, his answer was: "We will file a charge with the Board that the company intimidated the workers." Davidoff further testified that an employee, one Jose Melendez, telephoned him on the morning of the 14th before he visited the company office, stating: "He told me that the company had threatened-that the company had been threatening the people and they were trying to push them in with another union." It was stipulated by counsel that on March 12 the Second Regional Office sent out the letter to Respondent Home Care notifying them that a petition for certifi- cation had been filed by Local 295 for employees specified. That following, on March 14, the Second Region sent out a notice of conference for the same unit- that conference being scheduled for Wednesday, March 20-and on March 14 the Second Regional Office sent out a letter advising that an amendment to the petition had been made to change the unit to production, maintenance, and shipping. The next phase, in sequence of this case, is the entry of Local 422 of Service and Sales Employees' Union. After receiving the Teamsters telegram on March 8, General Counsel and Re- spondent counsel are in agreement that three representatives of Local 422 of the International Production, Service and Sales Employees Union appeared outside of Respondent's plant and approached employee Angel Melendez who was loading a truck and importuned him to join Local 422. One of the representatives, Florentino Luis, attempted to give employee Angel Melendez a union card but he refused to take it. From this point on, respective counsel in their briefs put their own interpre- tation on the testimony of record in their narrations. Witness Angel Melendez, a Puerto Rican, gave the cogent testimony in this phase of the case, testifying through a Spanish-speaking interpreter. He stated that he understood English if spoken slowly and could speak it to a limited degree himself. He was employed by the Company during March 1963 and "was in charge of us [Puerto Ricans] in the factory." Melendez testified that he signed the union card on March 7 in company with some 15 others at the first meeting with Organizer Davidoff. He described that a day or two after signing up with HOME CARE PRODUCTS, INC. 273 Teamsters Local 295, he was accosted while loading his truck by three men from Service and Sales Local 422 and was asked to join that union by Florentino Luis, the one who spoke Spanish. Melendez refused to take the proffered card and re- turned to the plant. He stated that about 5 or 10 'minutes after returning to the plant, Mrs. Wallace, the secretary of Bosses, told him to report to Bosses' office. Melendez quoted Bosses as telling him that "if we sign with Local 295, he would be compelled to reduce the number of personnel." Melendez, nevertheless, told Bosses that he could not go against the majority of the boys but would do as the majority did. He testified that Bosses then asked him to go out to the street and get the cards from the representative of Local 422: "He said if I were clever than the other fellows I would go out there and get the cards and have the other boys sign it, sign them." Melendez followed Bosses' suggestion, went out and met with the same three representatives of Local 422 to whom he had talked about 10 minutes previously, took the cards together with some books concerning the benefits 422 were offering, and returned to the plant. He stated that he showed the cards to some of the boys, but the next day he threw them away. Melendez also testified that 2 or 3 days after having gotten the cards from Local 422, Bosses addressed the employees shortly after beginning work. At this meet- ing Bosses spoke to all of the employees, and one of the English-speaking employees standing near him translated as Bosses spoke. Melendez testified that Bosses said that he might have to reduce the number of employees by six or seven persons if the Teamsters came in, and he quoted Bosses as saying that he did not want any union, and asked why they were joining the Union when he had been so good to them. Melendez further stated that after Bosses asked employees whether they wanted Local 295 as their union and about 10 or 11 replied in the affirmative- some said no and others remained quiet. Bosses' concluding statement was: "Well, if you want the union, take it, okay." The day following this meeting, after lunch, according to Melendez, he and employees Carril Jiminez, Rodriguez, and a mechanic had a meeting at which time Carril produced a paper which bore in English and Spanish the legend: "WE WANT NO UNION" and "NO QUEREMOS UNION." It appears, as background for this, that in the interim, Bosses had called Carril into his office and talked with him concerning the Union. Bosses gave Carril this paper and asked him to circulate it among fellow employees and get such as were willing to sign it. Melendez testified that he did not decide to sign Jiminez' paper at this time, but did so on the follow- ing day-some signed but others did not. On the following morning Bosses again addressed all of the employees. On this occasion Melendez stated that all of the employees spoke: "We ask him for 5 minutes for a coffee break, and also 5 minutes to wash before we left." In response to this request Bosses granted the employees time for washing up before going home at night, and gave them a 5-minute coffee break. General Counsel's other Puerto Rican witness gave a similar version as Melendez of events. Carril Jiminez testified that Bosses held a meeting of the employees about a week after they had signed the cards. He described that the men were seated and that one of the employees who spoke both English and Spanish inter- preted as Bosses addressed them. In substance, his testimony was that Bosses asked why did they want the Union since he had been so good to them. Carril stated: "Then we told him that we wanted to benefit ourselves by joining the Union and particularly for the hospitalization benefits." He recalled that Bosses recited that some of the employees had been absent and stayed out from work but were allowed to come back. Bosses cited Jiminez himself as an example: "He^ said that I went to Puerto Rico about Christmas and that he kept the job open for me." Jiminez testified that on the day following this meeting, and after being informed by a fellow employee named "Bob" that Bosses wanted to see him, he went into,Bosses' office. He explained that he went to Bosses' office "because there was so much problems, I went to tell him that I did not want to do anything about the union." Jiminez stated that Bosses, in the conversation that ensued, said that it was fine that he did not want the Union-adding: "He said that if we would get into the Union that he would reduce the employees from 19 to more or less about 10. And that if they asked for an increase, that probably there would be a strike, because he did not have money to pay for that increase." Jiminez stated that Bosses spoke to him in English which he understands if spoken slowly. Near the close of the conversation Jiminez told Bosses that there were two or three others who did not want the Union. At this point Bosses produced the paper with the Spanish and English legend on it (Respondent's Exhibit No. 2) and instructed him to get those who did not want the Union to sign this paper. Jiminez's testimony in this connection was: "I held [took] the paper and 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then I went to the others who were working there and they asked what was that for and I explained that those who didn't want to belong to the Union, to sign the paper." Employee Stephen Melendez next took the paper, signed it, and ap- parently put it in general circulation. About 4 o'clock, or quitting time, on the same afternoon the group again met, including the night shift, and discussed the Union, and some said, "I will sign" and others said, "I won't sign." Although Bosses was in the neighborhood it does not appear that he participated in this dis- cussion. Nevertheless, 19 of the employees had signed the document by March 14 or 15 after Bosses had promised them a coffee break and ja wash-up period. On March 18, Respondent Counsel Archer informed Organizer Davidoff that the employees did not want the Teamsters Union to represent their employees. B. Testimonial facts congruent to complaint The above testimonial facts as found amply support sand ,document paragraphs 8 and 9 of the complaint, and I so find. Paragraph 8 recites that on or about March 11, 1963, Respondent, by Martin Bosses, its president, attempted to persuade its em- ployees to abandon their support of Local 295, and made arrangements for another union, International Production, Service and Sales Employees' Union, to solicit for membership among its employees during working time. This is evidenced by the fact that President Bosses met with the employees between March 8 and 15 in the attempt to persuade his employees to abandon their support of Teamsters Local 295. In violation of Section 8(a)(1) of the Act, he threatened to cut the working crew. He also attempted to make arrangements for another union, Inter- national Production, Service and Sales Employees' Union, to solicit for membership among its employees on working time through the person of Angel Melendez- also violative of Section 8(a)(1) and (2) of the Act. Paragraph 9 alleges that on or about March 13, 1963, Respondent, by Martin Bosses, its president, initiated, authorized, and permitted the circulation among its employees of a petition by which the signatories indicated that they did not wish to support Local 295, and on or about March 13 and 14, 1963, Respondent induced employees, by threats and promises, to sign the petition, the object of the threats and promises being to induce the employees to sign the petition as described above, and to induce the employees to abandon and renounce Local 295 and to refrain from joining it and from en- gaging in other concerted activities on its behalf. This is amply evidenced by Bosses' calling in Carril Jiminez and giving him a paper and instructions to sign up,all employees not in favor of the Union. Calling into his office two employees, Melendez and Jiminez, and threatening to reduce his staff of employees if the Union came in, constitutes illegal interference, restraint, and coercion of employees in the exercise of rights guaranteed in Section 7 of the Act. The allegations above having been found to be supported by the findings of fact and evidence of record, it follows that the allegations in paragraphs 10 and 11 are correct statements of the law applicable under the facts as found by me. Paragraph 10 states that by the acts described above in paragraphs 8 and 9, and by each of said acts, Respondent interfered with, restrained, and coerced, and is interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices affecting- commerce within the meaning of Sections 8(a) (1) and 2(6) and (7) of the Act. Paragraph 11 is consonant in that by the acts described above in paragraph 8 and by each of said acts, Respondent rendered and is rendering unlawful assistance and support to a labor organization, and contributed and is, contributing financial and other support to a labor organization, and thereby engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a) (2) and 2(6) and (7) of 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 connection 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 has engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. HOME CARE PRODUCTS, INC. 275 It has been found that the Respondent has violated Section 8 (a)(2) and (1) of the Act by assisting Local Union 422 and by interfering with the organization of the Teamsters Local 295, I have also found that the Respondent by threats to his employees interfered with, restrained, and coerced them in the exercise of their rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) of the Act. Accordingly, it will be recommended that the Respondent be ordered to cease and desist from interfering with , restraining, or coercing his employees in the exercise of their rights guaranteed by Section 7 of the Act by threatening them with reprisals if the Company were unionized and laying off of employees, and by giving aid and assistance to Local 422 if the employees rejected Teamsters Local 295. It will also be recommended that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed his employees by 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. Home Care Products, Inc., is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Local 295, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, and International Production, Service and Sales Em- ployees' Union, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By assisting Local 422 and interfering with the organizing of the Local 295, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (2) of the Act. 4. By interfering with, restraining, and coercing his 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. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, I recommend that the Respondent, Home Care Products, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with the organizing of Teamsters Local 295 or any other labor organization of its employees and from contributing support to Local 422 or to any labor organization of its employees. (b) Threatening reprisals against employees or granting benefits to cause them to abandon or reject Teamsters Local 295 or any' other labor organization. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, 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 it is found will effectuate the policies of the Act: (a) Post at its plant in Jamaica, New York, copies of the attached notice marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent, be posted by him immediately upon receipt thereof, and be maintained by him 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. 1 In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "A 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 Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci- sion and Order." 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director for the Second Region , in writing, within 20 days from the receipt of this Trial Examiner's Decision and Recommended Order, what steps he has taken to comply therewith.2 It is further recommended that, unless on or before 20 days from the receipt of this Decision and Recommended Order Respondent notifies the aforesaid Regional Director, in writing, that he will comply with the foregoing Recommended Order, the National Labor Relations Board issue an order requiring him to take such action. 2 In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify 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 a Recommended Order of a Trial Examiner of the National Labo2 Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT interfere with, restrain, or coerce employees in the exercise of their right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , either by threatening employees with reprisals or by granting them benefits to 'abandon Teamsters Local 295, or any other labor organization. WE WILL NOT offer or contribute assistance and support to International Production, Service and Sales Employees' Union 422, or any other labor organization of our employees, or otherwise interfere with the representation of our employees through a labor organization of their own choice. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. All our employees are free to become or remain , or to refrain from becoming or remaining, members of the above-named labor organization, or any other labor organization, except to the extent above stated. HOME CARE 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, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500, if they have any question concerning this notice or compliance with its provisions. Tele-Trip Company, Inc. and Insurance Workers International Union, AFL-CIO. Case No. 5-CA-2435. March 6, 7964 DECISION AND ORDER On October 28, 1963, Trial Examiner George A. Downing issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set 146 NLRB No. 27.