Continental Woven Label Co., Inc.

1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Continental Woven Label Company, Incorporated and Donald E. Meredith. Case 21-CA-6866. September 28, 1966 DECISION AND ORDER On June 6, 1966, Trial Examiner James R. Webster 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 alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs; the Respondent also filed an answer- ing brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. 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 Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner only to the extent consistent herewith. In June 1965, Textile Workers Union of America, AFL-CIO, CLC, conducted an organizing campaign among the Respondent's employees. A number of employees, including Donald E. Meredith, were active in this endeavor. During the campaign Meredith gave authorization cards to two employees, one of whom was Francisco Veloz. Later he went to Veloz to pick up the card, but it had not been signed. He told Veloz that he should sign the card because, "tomor- row will be too late." Veloz asked, "Too late for what?" Meredith replied, "Well, if you don't sign this card now, you'll find yourself out of a job." Veloz told Meredith, "to go to h ," and refused to sign the card. The Respondent had known of the union campaign 2 weeks before this incident. After it became aware of unrest in the plant and of statements by some employees to others concerning job loss, it employed a labor relations consultant. Upon the consultant's advice a notice was posted which in effect stated that the Respondent intended to observe the employees' rights with regard to union activ- ities, but that statements threatening job loss would be grounds for 160 NLRB No. 112. CONTINENTAL WOVEN LABEL COMPANY 1431 immediate dismissal. Thereafter, three employees gave written state- ments charging certain other employees with making prohibited threats, and on the basis of these Respondent discharged Meredith and another employee, not involved herein. The Trial Examiner found, on the basis of the words used by Mere- dith and his inability to effectuate a termination of an employee,' that the Respondent discharged Meredith for engaging in protected union activities in violation of Section 8(a) (1) and (3) of the Act. We do not agree with either finding or the bases therefor. It has been held that a statement by one employee to another that the latter would have to join the union to keep his job is outside the area of protected activity,'- and we find that Meredith's statement falls within this class. The Respondent contends that the sole reason for Meredith's discharge was the statement. The General Counsel con- tends that the Respondent used the statement as a pretext to dis- charge Meredith for his participation in the organizing campaign. There is nothing in the record to refute the Respondent's contention or to support that of General Counsel. Therefore, as the General Counsel has failed to sustain his burden of proof in this matter, there is no basis for finding that the discharge was discriminatorily motivated. Accordingly, we find that the Respondent did not discharge Don- ald E. Meredith for engaging in union activities in violation of Sec- tion 8 (a) (1) and (3) of the Act. We shall, therefore, dismiss the complaint. [The Board dismissed the complaint.] I Another basis upon which the Trial Examiner relied was the legality and possibility of a union shop in California . He distinguished Meredith 's statement from one made in N.L R.B. v. Tennessee Coach Company, 191 F.2d 546 , 548, 550 ( C A. 6), which was held to be unprotected In that case the statement was made in Tennessee , a right-to-work State , and the Trial Examiner reasoned that in California , which does not have a right-to- work law, the ruling would be inapplicable We do not agree Even if the Union were to obtain a union-security agreement, Veloz could retain his job without joining by tendering the proper dues and initiation fee. See Bruns Garage, Inc , 148 NLRB 363, 368. 2 Boeing Airplane Company v. N.L.R.B., 217 F.2d 369, 375 ( C.A. 9) ; Bruns Garage, Inc, supra, footnote 1 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case, with all parties represented , was heard before Trial Examiner - James R. Webster, in Los Angeles, California , on April 12, 1966, on complaint of the Gen- eral Counsel and answer of Continental Woven Label Company, Incorporated, herein called the Respondent . The complaint was issued on December 16, 1965, upon the charge filed on July 28, 1965 . The complaint alleges that Respondent dis- charged Donald E. Meredith, the Charging Party, on July 9, 1965 , because of his activities on behalf of the Textile Workers Union of America, AFL-CIO,- CLC, thereby violating Section 8 (a)(1) and (3) of the National Labor Relations Act, herein called the Act. 1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel and the Respondent have filed briefs herein and they have been carefully considered. Upon the entire record and my observation of the wit- nesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a corporation, is engaged in the business of manufacturing ribbons and labels for the clothing industry and maintains its principal office and place of business in Los Angeles, California. Respondent, in the course and conduct of its business operations, annually causes to be shipped from its plant in Los Angeles, California, goods valued in excess of $50,000 directly to customers located outside the State of California. I find that Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that the Textile Workers Union of America, AFL-CIO, CLC, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. HI. THE ALLEGED UNFAIR LABOR PRACTICE A. Issue Whether Donald Meredith was engaged in protected or unprotected union activ- ity when he informed a fellow employee that if he did not sign a union authoriza- tion card, he would find himself out of a job. B. Sequence of events In June 1965, a union organizational drive was conducted among the employ- ees of Respondent. A number of the employees were active in this endeavor. Respondent has approximately 40 or 50 employees, 12 or 13 of whom are weavers, which is the classification of Donald Meredith, the Charging Party. Meredith has worked for Respondent for 9 years and only one other weaver had seniority over him. During the campaign, he gave authorization cards to two employees. He gave one card to a fellow weaver, Francisco Veloz. Later, he went to Veloz to pick up the card, but it had not been signed. He told Veloz that he should sign the card because "tomorrow will be too late." Veloz asked, "Too late for what?" Meredith replied, "Well, if you don't sign this card now, you'll find yourself out of a job." Veloz told Meredith, "to go to hell," and he refused to sign the card.' On Thursday, July 1, 1965, Respondent's General Manager Harold Acker and President Milton Engle were away from Respondent's plant on business. An office secretary called Engle in New York and reported that "there was unrest in the mill" and that the looms were not running, and she suggested that he return to Los Angeles. That evening, he called Acker and reported the matter to him. Acker checked into the matter and reported to Engle the next day that things were normal. Acker testified that he was aware that a union organizing campaign was taking place and that he had suspected it for as much as 2 or 3 weeks earlier. Engle asked Acker to call Respondent's accountant and discuss the matter with him. He did so, and the accountant suggested that he call Mrs. Edwin Selvin, a labor relations con- sultant. She was retained that day, Friday, July 2, 1965, to assist and advise Respond- ent on matters of labor relations. On Monday, July 5, Respondent received notice of the filing of a representation petition by the Union. 'Meredith denies that he told anyone that "if they didn't join the Union, that they would get fired " He was not questioned on direct examination about a conversation with Veloz. On cross-examination, he was very vague as to this conversation. On this matter, he testified, "The only thing I remember . . . he doesn't speak too well English, and he was babbling on something about a Union, that he had trouble with the Union or some- thing else. Evidently, that was the reason he didn't want to sign or whatever it was . . . I was busy I had no chance to or time to stop to listen to him . . I told you, I wasn't that interested in the whole situation. . . . He could have went home and talked it over or something, or maybe she hit him over the head with a rolling pin, I don't know " I credit Veloz' testimony as to Meredith's statements as found above. CONTINENTAL WOVEN LABEL COMPANY 1433 On July 5 or 6, Acker was informed by Assistant Manager Bruce Longworth that some of the employees "were fearful of what was going on around them." On July 6, Engle returned to Los Angeles, and on that day, a meeting was held with Selvin by Engle, Acker, and Longworth. During the meeting, Longworth reported that employees had told him they were afraid of their jobs and indicated they had been threatened in one way or another. Selvin advised them that this was not protected activity and suggested that a notice be placed on the company bulletin board. She drafted a notice for Respondent and the following notice was placed on the bulletin board in both English and Spanish: IMPORTANT NOTICE Management has learned that some employees are telling and have told other employees that they will lose their jobs if they do not sign Union cards. It is absolutely against the laws of the United States of America for anyone to make such irresponsible and coercive statements. Anyone found to have made such statements will be instantly discharged. Any employees who have been told this, please notify the management at once. THE MANAGEMENT In accordance with the instructions in the notice, several employees notified Assistant Manager Longworth of such statements having been made to them. This was reported to Selvin and she advised that the information should be put in writing and notarized and sent to her. Three employees gave written statements, two of whom reported that they would lose their jobs if they did not sign union authori- zation cards. These were acknowledged before a notary public on July 7, 1965, and s forwarded to Selvin. One statement was that of Francisco Veloz regarding Donald Meredith. The other affidavit reported that an alleged threat of loss of job had been made by employee Carlos Valdevieso to employee Joel Morales. Veloz does not read English, and as a witness, he appeared to speak and understand it with difficulty. After considering these notarized statements, Selvin advised Respondent that the employees who had made the "threats" had engaged in unprotected union activities and that Respondent had grounds to discharge them. President Engle considered the matter, taking into account the personalities, work habits, and work performance of the employees involved, and concluded to terminate Meredith and Carlos Valdevieso "primarily because I don't want any coercers" working in the plant. Engle testified, "I needed him [Meredith]. I can use him, but there are certain things that are over and above my needs for a particular individual, and that is the moral concept involved." 2 On Friday afternoon at 3 p.m., July 9, 1965, General Manager Acker called Meredith into his office and in the presence of Engle, Longworth, and others, he read to Meredith a prepared statement as follows: "We have evidence which we believe to be reason to terminate your employ- ment for cause. Evidence indicating that you have threatened other employees con- cerning their jobs with this firm. Therefore; we are making this termination effec- tive immediately." Valdevieso was also discharged the same day. C. Conclusions An employer may discharge an employee for any reason except for the reason of his concerted or union activities . Some activities on behalf of a union , however, fall outside the scope of Section 7 of the Act and are "unprotected ." Depending on the circumstances , a threat of physical , injury or violence by one employee to another has been held to be unprotected activity and justification for discharge .3 As to a statement or "threat" of loss of employment by one employee to another, the Board has held in the Tennessee Coach Co., case, 84 NLRB 703, 24 LRRM 1337, that the discharge of the employee making the statement or threat was discriminatory , reasoning that his "prediction, based on assumption of 2 On cross-examination , Engle also testified to some dissatisfaction with Meredith's work and personality traits 3 Koch Engineering Company, Inc., 155 NLRB 1272, 60 LRRM 1494; for decision find- ing a violation of Section 8(a) (3), see Zelrich Co., *344 F.2d 1001 (C A 5), enfg 144 NLRB 1381, 54 LRRM 12151. 1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union victory in later representation and union-security elections and in union- shop negotiations with the Respondent, merely reflects the usual enthusiasm of rank and file employees in organizational campaigns, and does not taint such statements as were made here with restraint or coercion." Enforcement of this deci- sion of the Board was denied by the U.S. Court of Appeals for the Sixth Circuit, 28 LRRM 2334, which pointed out that "contrary, however, to the Board's con- clusions, the attainment by the union of a union-shop contract was not, in Ten- nessee, a legitimate objective, since under the laws of Tennessee, a union-shop contract is illegal." In the instant case, Respondent being domiciled in the State of California, there is no right-to-work law precluding a union-shop contract; therefore, the statement or prediction of Meredith is a possibility. Its attainment depends on the Union acquiring the status as bargaining agent and then negotiating and concluding a union-shop contract with Respondent. Meredith did not include these prerequisites in his statement to Veloz, and I do not believe that in campaigning it is necessary that he be so precise. If the matter had bothered him, Veloz could have made inquiries of Respondent or others for the accuracy of Meredith's statement. Fur- thermore, Meredith, being only an employee himself, was without power to effec- tuate the statement. Respondent contends that the Board has held such a remark by a union repre- sentative to constitute a violation of Section 8 (b) (1) (A) of the Act, and that it would constitute' an anomaly to find it to be protected activity when committed by an employee and an unfair labor practice when committed by a union represent- ative. The Board found that union representatives violated the Act in making such statements in Smith Cabinet Manufacturing Company (United Furniture Workers of America, Local 309, CIO), case, 81 NLRB 886, 23 LRRM 1424, and in Seam- • prufe, Inc. (International Ladies Garment Workers Union, AFL), 82 NLRB 892, 23 LRRM 1646. Whether or not there is merit to Respondent's analogy-that is, that both should be treated alike (although the majority of the Board did not think so in the Tennessee Coach Co. case), it is not necessary that I deal with this point in this case as the above-mentioned cases are distinguishable from the instant case in significant aspects. The Smith Cabinet Manufacturing Co. case arose in Indiana which had a right-to-work law; and although the Seam prufe, Inc. case arose in Oklahoma, which did not have a right-to-work law, the threat of loss of employment did not stand alone, but was appraised by the Board in the context of another statement by the union representatives that "we have ways of handling people like you that argue against the Union." The Board held that "the latter statement could not fail to underscore the militancy of the Union, heightening the coercive effect of the prior threat of loss of employment . . Both statements, taken together, give an impression of a fixed determination by an organized group ... to take punitive action against any one who opposed, or did not support, its program." I find that, under the circumstances of this case, Meredith was discharged for engaging in protected union activities, and his discharge for his remarks to Veloz when soliciting him to join the Union were discriminatory and a violation of Sec- tion 8(a)(3) and (1) of the Act. I base this principally on the nature of the words used by Meredith to Veloz, his inability to effectuate the termination of an employee, and the legality and possibility of a union shop in California. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in paragraph III, occurring in connection with its business operations as set forth in paragraph I, 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. 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. Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. SEARS, ROEBUCK AND CO. 1435 3. By discharging Donald E . Meredith on July 9, 1965, the Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Sec- tion 8 (3) and ( 1) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in an unfair labor practice, I shall recommend that it cease and desist therefrom , and that it take certain affirm- ative action which is necessary to effectuate the purposes of the Act. It shall be recommended that the Respondent offer Donald E. Meredith immedi- ate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and that Respondent make him whole for any loss of pay he may have suffered by reason of the dis- crimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the date of the discrimination against him to the date of Respondent' s offer of reinstatement, less net earnings . Loss of pay shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and shall bear interest at the rate of six percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. [Recommended Order omitted from publication.] Sears, Roebuck and Co. and Chauffeurs, Teamsters and Helpers "General" Local No. 200, I.B.T., Petitioner. Case 30-RC-419. September 28, 1966 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Offi- cer William F. Jacobs. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Employer and the Petitioner have filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert juris- diction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists' concerning the representa- tion of certain employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. The Employer operates six major retail store units and a service center in the Milwaukee area. The instant case involves only the Serv- ice Center, which is housed in a single building consisting of two 160 NLRB No. 118.