Silver's, Inc.

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Silver's, Inc. and Robert E. Amerson. Case TRIAL EXAMINER'S DECISION 7-CA-5649. April 28,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On January 6, 1967, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as,amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in another unfair labor practice alleged in the complaint and recommended dismissal of that allegation. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief, and the Respondent filed an answering brief. 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. 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 the briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held before me on November 2, 1966, at Detroit, Michigan, on complaint of the General Counsel against Silver's, Inc., herein called the Respondent or the Company. The complaint alleges violations of Section 8(a)(1) and (3) of the Act. After the close of the hearing briefs were received from the Respondent and the General Counsel. Upon the entire record in the case, and from my observation of the witness, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Silver's, Inc., a Michigan corporation, is engaged in part in the business of selling office furniture, with its principal office and place of business in the city of Highland Park, Michigan. During the year ending December 31, 1965, a representative period, the Company received gross revenue from the sale and distribution of office furniture in excess of $500,000. During the same period the Respondent caused to be transported and delivered to its Highland Park place of business furniture valued in excess of $500,000, of which a quantity valued in excess of $50,000 was transported and delivered directly to its place of business from points outside the State of Michigan. I find that Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Silver's, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. i In the section of the Trial Examiner's Decision entitled "The Discharge of Robert Amerson," it is stated that "[t]here is nothing to indicate that his [Amerson's] performance improved " In fact, however, Supervisor Hill testified that Amerson's work did improve shortly before his discharge, and that he (Hill) had discussed this fact with his superior, Jones We do not believe, however, that this evidence materially detracts from the Examiner's ultimate findings There is no evidence that this evaluation of Amerson's performance had ever been conveyed to Silver, who had been absent from the plant from June 29 until July 10 and who would not, therefore, have been personally conversant with Amerson's improvement during this period Moreover, Silver primarily based the discharge on Amerson's second accident within a 3-week period, and only secondarily on his recollection of Amerson's previously inadequate performance of his duties III. THE UNFAIR LABOR PRACTICES Teamster Local 299 began to sign up the Company's approximately 16 drivers and warehousemen in the first week of July 1966. On the 13th it demanded recognition as majority representative, a request that was not granted. A representation election petition (Case 7-RC-7443) was filed on July 22, the election held on August 10, and the results certified 10 days later adverse to the Union. Objections were filed, but later withdrawn. Robert Amerson, a driver who had worked about 3 months, was discharged on July 12, the day before the demand for recognition reached the Company; a few days later, on about July 15, the Company's president gathered this group of employees-limited to the drivers and warehousemen-in the coffeeroom, and spoke to them for about an hour. The complaint alleges that President Ira Silver threatened economic reprisals and promised improvements in working conditions, in order to defeat the organizational campaign, and discharged Amerson because he had signed a union card and further to curb such activities generally. There are further allegations of unlawful interrogation of employees by other supervisors. The Respondent denies the commission of any unfair labor practices. 164 NLRB No. 42 SILVER'S INC. 203 A. Interference, Restraint, and Coercion While the date of Silver's talk to the assembled employees is not fixed with unanimity on record, it certainly took place within the week following July 13. Silver had returned from overseas on the 10th, and learned what was going on. Four employees testified to what Silver said. Understandably their recollections varied somewhat, but in substance they were fairly consistent. Willie Bergamy, 11 years-on and off-a truckdriver, said the meeting lasted an hour and that Silver spoke much about the Company's policies "about the Union. It concerned the union mostly, and he said if we get a union in there that all of the benefits we had would be dropped." Silver mentioned the Christmas bonus, loans by the Company to employees, insurance benefits, and taking care of employees in case they were hurt on the job. According to Bergamy, Silver spoke of the Teamsters being "no good," and why had the employees not chosen the "AFL-CIO" instead. The president also explained how Teamsters "didn't have many colored drivers" (most of the employees here involved are apparently Negroes), and that "he wasn't going to have Hoffa running his business." Silver also said, still according to Bergamy, that he and his brother "had enough money they could live happily ever after." Calvin Brantley, an employee for 5 years, quoted Silver as saying he intended to establish a profit-sharing plan, and "from that lead into about the Teamsters union ... he said he would close the business up. He owned the building and he would sell the building. He didn't need the business any more because he could practice law ... he didn't want Jimmy Hoffa and his racketeers coming in there telling him how to run his business ... how many trucks we see coming in with Negroes driving ... Jimmy Hoffa didn't care about the little man." Robert Knoll, a former employee, testified Silver started by saying ". . . as you know, there have been fellows around trying to see about getting a union . . . he didn't want a union ... why didn't you pick the UAW instead of the Teamsters." Silver spoke of the profit-sharing plan, and added "there would be no profit sharing for union members ... him and his brother would no longer be a big father to the so-called employees ... if there was going to be a union he would run it strictly by the book." Still according to Knoll, Silver reminded the men of the benefits they had enjoyed, and then added ". . . him and his brother didn't need the business anyway. They could sell and go into law." Jesse Hill, a supervisor who later was discharged, testified Silver spoke of a proposed profit-sharing plan and retirement program he envisaged, detailed past benefits, and added "if the union came in, it would be run by the book." Silver denied having made any threats at the meeting but his total testing on the subject was vague, ambiguous, and unconvincing. At one point he said flatly the purpose was to discuss the advantages of profit sharing. More revealing, in the light of the record as a whole, was his more expansive statement: To explain to them what we were attempting to do, and how we were attempting to do it, and a lot of these people I would say you have to do a lot of diagraming for them, and explain to them the advantages and disadvantages of various things and I have always been able to mingle with all of the employees and talk to most of them, and not sit on my pillow in my office and try to act like a boss. I have been able to talk with them like a normal man and explain various things to them, a lot of them do not understand unless you go into this diagraming with them. Silver admitted discussing the Union, but said it was the employees who asked him about it, and that he explained: If they wanted to go union, it was up to them. Anything my employees want to do, it is up to them to make their own decisions, but I explained to them the circumstances that we as a company and myself once a union does come in there that I am no longer their father, which I have been to these people for a number of years. Most employees have been there for a number of years, they get sick, they want to take vacations, the kids get sick, they have problems with their family, and I have been able to lend them money, and get them clothes, and I said when the union comes in, some of these things in here, when they have personal problems, will no longer go to me. They will go to the union. Silver added he could not remember whether he had mentioned Hoffa at the meeting. Silver's assertion that the purpose of the meeting was to explain a profit-sharing plan so the employees could understand it, is suspect first of all because he also said that as of this time "the kind of plan" it would be was not yet known. "We still haven't decided it now, sir." This means there were no details then that could be "diagramed." These workmen-limited to drivers and warehousemen-were the only group, among the overall complement of about 75 employees in the Company, who were carrying on union activities, the only persons whom the Union had sought to represent only a few days earlier. Silver's explanation that the other classifications were not called together to hear him because they were more intelligent suffers equally from the apparent fact that all he had to say then was that there would one day be some sort of profit-sharing benefit. The meeting lasted an hour; what diagraming of benefits he did must therefore have concerned other benefits that in his opinion required discussion at this particular moment. In conflict with his oral testimony, Silver's prehearing affidavit says it was the employees who asked him to speak to them of the profit- sharing plan. The affidavit also contains the following statement: "At this meeting I explained benefits which our employees have at the company such as the handling of garnishments, legal work and accounting services, the lending of money and the payment of hospital bills for employees." At the hearing Silver denied having voiced any threats to the employees, but his affidavit also reads: "At this meeting I told the employees, that this company was the type company that where the two people involved, my brother Jerome and myself could sell out. I told them we have had substantial offers to sell which would make us extremely wealthy if we sold. I told the employees that we were hanging on to the company for the benefit of the employees." In the light of Silver's implicit admissions, the implausibility of his assertedly limited motive in the total 204 circumstances, and of the demeanor of the witnesses, I credit the employees. Accordingly I find that he called the meeting to make them understand his intent to withhold past benefits in employment in the event they persisted in their attempts to bargain with him collectively through a union of their choice, and that he threatened to discontinue the entire business in retaliation for their union activities. By such threats of economic reprisal the Respondent violated Section 8(a)(1) of the Act. Following Silver's speech, the same group of employees for the most part were assembled to hear the company comptroller, Herner, speak of the profit-sharing plan again. The testimony as to the details of what he said are not very full on the record, but it appears that he spoke of the Company one day intending to contribute 10 percent of its profits to such a fund and in turn distribute it among the employees on a prorata basis commensurate with their respective individual earnings . How detailed the information was is difficult to understand in view of the further testimony of both Silver and the comptroller that a definitive plan had not been decided upon, and indeed is still totally in the air. Employees Knoll and Brantley, as well as Supervisor Hill, testified they had heard nothing of profit sharing before Silver spoke of it at a meeting of July. The other employee witnesses were not asked this question. John Jones, another foreman, said he had heard "approximately a year" before the hearing that the Company "contemplated the institution of a profit sharing plan," that he had never discussed it with company officials, and that it "was discussed with the employees ... within the last ... 6 months." Asked had he ever told employees in his department about it, he said flatly, "I know nothing about it." Herner, the comptroller, testified that Silver had asked him to research the possibility of a workable plan perhaps a year before July 1966, but as to whether employees had been advised, his best effort was that at the last Christmas party "it was discussed on an informal basis amongst the various employees of the company we were seriously contemplating going into a profit sharing plan . I stated I was investigating their initiating the profit sharing plan." He was sure no formal announcement had ever been made to the employees. Whatever the Respondent's internal planning may have been, it is clear, and I find that no real notice had been given the employees before the Union's move to organize the drivers and warehousemen. Silver's announcement to these employees, therefore, in the middle of July, coupled with his statements of how they would suffer at his hands if the Union prevailed, and so timed with the demand recognition, was a promise of benefit intended improperly to influence their decision. I therefore conclude that by such promise of benefit the Respondent also illegally coerced the employees in violation of Section 8(a)(1) of the statute. Management representatives learned of the organizational campaign before the demand telegram of July 13. Amerson, then a truckdriver, and Bergamy, testified that on the morning of July 11 Foreman Jones called them to the office to inquire had they signed union cards; they denied the fact, although they had done so. Bergamy added Jones called them liars for the denial. Amerson said the foreman went on to say he had once been a member of Teamster Local 600, which "wasn't any DECISIONS OF NATIONAL LABOR RELATIONS BOARD good and we would just be in more trouble if we got the union in there .... he would tell Ira Silver none of his boys signed a union card," and that "anything occurred, for us to contact him and he would take care of it." Bergamy's version is that Jones said "some of the fellows around the company were making trouble for the company, and that he always take care of the employees. . . . " Bergamy also testified that after the inquiry by the foreman, Ira Silver called him to the office alone and asked had he signed a union card. He denied it again, and Silver then told him there would be a profit-sharing plan and the older employees would have an advantage. Bergamy was 11 years with the Company. He said he needed to have his teeth repaired more than a profit- sharing plan, and Silver then promised to help him. (At the hearing Bergamy said the denture was in fact being made at Silver's expense.) Both Jones and Silver denied having interrogated any employees. Jones admitted he called Amerson and Bergamy to his office but said it was only to explain a twice-a-day delivery system that was being instituted. He also denied having discussed the Union with them. At one point he denied unequivocally talking of the Union with any employees. But he also vacillated. He said he had learned of the union activities of employees "indirectly," "through the grapevine," and that he was involved in a conversation with employees Dave Emig and Bob Vogen, and that he told them he had once been in a union-Local 600-but had been dissatisfied. Jones' earlier affidavit, given to a Board investigator, contains the admission that he asked ". . . are you fellows interested in or mixed up in that mess over there. I was referring to the problems in the furniture warehouse and truck driver area involving matters such as delivery problems, union problems, or problems related to the contentions between the department." Silver's determination to root out the union campaign, even by resorting to unlawful threats, is clear. Jones' denials are unpersuasive and evasive. Based upon the total record and the demeanor of the witnesses, I credit Amerson and Bergamy, and find that Jones and Silver interrogated them concerning their union activities. In the light of the other statements-that the employees would be taken care of-such questioning was coercive within the meaning of Section 8(a)(1) of the Act, and, I find, an unfair labor practice.' There is also the testimony of Brantley that he was called into Ira Silver's office one morning where he found the president, his brother Jerome, Herner, the company accountant, and Gerald Bohnut, Brantley's immediate supervisor. Brantley said he was the only employee present, and that Ira Silver started by saying he knew Brantley had gone into the Union. When Brantley asked how did Silver know, the answer was that Silver had "a list of every man that went into the Union," and that he [Silver] "could close the business or sell it." Then Herner added "they could sell the business if the Union comes in." Herner testified but did not mention this incident. Silver's was a general denial. In the light of the entire record, I credit Brantley's testimony. I also find that by telling Brantley he had a list of all union members among the employees, Silver created the impression of surveillance over union activities, and thereby violated Section 8(a)(1) of the Act. I I Blue Flash Express, Inc., 109 NLRB 591. SILVER'S, INC. 205 B. The Discharge of Robert Amerson Amerson was hired as a truckdriver in March 1966, and discharged on July 12. His duties were to make route deliveries of office furniture to the locations of purchasers throughout the city. He signed a union card a few days before the discharge, and, it will be recalled, was questioned about it by one of his supervisors, Jones, but denied the fact. During the afternoon of July 12, in inclement weather and difficult driving conditions, as he was making a street turn a woman ran into the rear of his truck and damaged her automobile. Amerson reported the accident to the office by telephone, and when he returned to the plant at or about 5 p.m. was called into the office of President Silver. In the interval the lady had herself telephoned the Company and claimed reimbursement for the claimed property damage, and Silver learned about it. In the office Silver told Amerson he had "had two accidents and I can't afford you." Amerson had in fact, 2 or 3 weeks earlier, run his truck into a private automobile, with a claim against the Company resulting. Amerson said Silver had two checks already prepared when he entered the office, one for the current portion of a week he had worked, and the second representing a full week's severance pay. As he was handing Amerson the checks, according to the employee, Silver asked "did you sign one of the union cards?" Amerson denied. With Silver's general reaction to the union campaign so clearly established by what he said and did apart from this discharge conversation, I believe Amerson's testimony, despite Silver's contradiction, that the president asked him about signing a card that day also. As to the reason for the discharge, Silver testified that it was because of the two accidents in so short a period, and the resulting danger of increase in insurance costs, Amerson's general incompetence in not making the proper amount of deliveries as scheduled, his poor appearance with respect to clothing and such things, and a generally poor attitude. Foreman Jones testified that Amerson had been hired as a probationer, and had been so advised in the beginning. That Amerson was not qualified in the opinion of the Respondent is true. He admitted he was reprimanded "a few times" by Hill, his more immediate superior; he sometimes brought merchandise back undelivered and was criticized. There were other occasions when he was urged to better performance. More than once he was told he was improving, to keep up the good work. Whether or not the word probation was used at the initial hiring is of no moment, for Supervisor Hill said directly that because of Amerson's poor performance he had placed him on probation once. More important, and, I believe, perhaps determinative here, is the further fact, related by the General Counsel's own witness Hill, that "two or three weeks" before his termination the Company had decided with finality to release Amerson. A man was hired to take his place, Amerson was told he would have to go and advised of the precise terminal date, and for a week or so took the new man on the route to show him how to do the job. With time the Company thought the replacement to be less capable than Amerson and placed him in the stockroom instead. It was decided to continue with Amerson. Then came his second accident and the union activities. Why did they fire him? But the real question in this case is not why did the Company release him on July 12. It is, instead, whether the preponderance of the substantial evidence on the record in its entirety supports an affirmative finding that the reason for the discharge was to curb union activities, either by Amerson personally or on behalf of employees generally. The facts give rise to a strong suspicion of illegal motive. For one reason or another Silver was thinking of the Union at the very moment of the discharge. This was not the first time Amerson had been asked; only a few days earlier Foreman Jones wanted to know had he signed up. It would seem the Company at least suspected, if it did not know, Amerson's true feelings. And the union animus generally, expressed both before and after the discharge, is clear enough. However, if fairness requires that the record as a whole be considered, there are other aspects of the situation that cannot be ignored. There is no real proof that the Company knew, before the discharge, that Amerson favored the Union. He did no more than sign a union card, and denied it when asked. Supervisor Hill testified generally that he and Foreman Jones discussed "the problems with the Union" several times, but his earlier affidavit reads: "I never discussed Amerson's union sympathies with any other supervisor." Hill also said at the hearing that he knew Amerson "supported the Union." Again his affidavit weakens the testimony: "Amerson and Bergamy were very close, and I felt, I felt certain Amerson also supported the Union." And about 2 weeks after July 12 Amerson telephoned Jones to inquire about certain pay due his sister for work performed at the foreman's home. He said that Jones then asked him "what did you tell that damn lie for, lie to me in regards to signing a card for the teamster's union." This time Amerson answered yes. Jones contradicted this testimony, but it is of little moment, for by that time much had happened, and the representation petition had been filed. In a sense even Silver's question-during the terminal conversation-may not be as significant in support of the complaint as at first appears. If it is to be said he discharged Amerson because the man was known, or believed to favor the Union, the intent existed before the critical question was put. But the pay and severance checks were already made out when Amerson entered the office, so that the final action had already been determined. But in that event there would have been no purpose in the inquiry at all. It is against the light of these weaknesses of one aspect of the case, that the other aspect-the unquestionable fact that Amerson had given sufficient cause for dismissal entirely apart from the union activities-takes on a very persuasive color. He had virtually been discharged only 2 weeks before. In effect, while he was breaking in the new man, Amerson was working out the period of his discharge notice. There is nothing to indicate that his performance improved. The testimony that the new man was not retained on the delivery route because of his incompetence, and not because Amerson changed, stands uncontradicted. Against such an immediate background, the repeat error of a second accident cannot be summarily swept aside as a probable cause for discharge. It may well be that another mind sitting in judgment could arrive at a different conclusion. Suspicion apart, I must find that the evidence does not suffice to support the complaint allegation with respect to Amerson's discharge. I shall therefore to that extent recommend dismissal of the complaint. 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 Respondent's 206 DECISIONS OF NATIONAL operations described in section I, above, have a close, intimate , and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY The Respondent must be ordered to cease and desist from restraining and coercing the employees in violation of Section 8(a)(1) of the Act, and to post adequate notices. Upon the basis of the foregoing findings of fact and on the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By telling its employees that benefits such as per- sonal loans, Christmas bonuses, and insurance coverage would be withheld from them if they persisted in joining Teamsters Local 299, by promising to establish a profit- sharing plan to discourage self-organization by the employees, by coercively interrogating them concerning their union activities, by telling employees that management knows the identity of all union adherents, and by threatening to discontinue the business in order to stop union activities, the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. The, aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and on the entire record in the case, I recommend that Silver's, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from telling its employees that benefits such as personal loans, Christmas bonuses, and insurance coverage will be withheld from them if they persist in joining Teamsters Local 299, or any other labor organization, promising to establish a profit-sharing plan to discourage self-organization by the employees, coercively interrogating employees concerning their union activities, telling employees that management knows the identity of all union adherents, threatening to discontinue the business in order to stop union activities, or in any like or related manner interfering with, restraining, or coercing employees in their exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following action which I find will effectuate the policies of the Act: (a) Post at its Detroit, Michigan, plant, copies of the attached notice marked "Appendix."2 Copies of said notice, to be furnished by the Regional Director for Region 7, after being duly signed by the Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 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. LABOR RELATIONS BOARD (b) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.3 IT IS HEREBY FURTHER ORDERED that the complaint be dismissed to the extent that it alleges illegal discrimination in employment with respect to Robert E. Amerson. 2 In the event that this Recommended Order is 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 is 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 Decision and Order." 3 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 7, in writing, within 10 days from the date of this Order, what steps 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT tell our employees that benefits such as personal loans, Christmas bonuses, and insurance coverage will be withheld from them if they persist in joining Teamsters Local 299, or any other labor organization, promise to establish a profit-sharing plan to discourage self-organization by our employees, coercively interrogate employees concerning their union activities, tell our employees that management knows the identity of all union members, or threaten to discontinue the business entirely in order to stop union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. SILVER'S, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-3244.