Finesilver Manufacturing Co.

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finesilver Manufacturing Company and Amalgamated Clothing Workers of America, AFL-CIO. Case 23-CA-2407 June 20, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 8, 1967, Trial Examiner Horace A. Ruckel issued his Decision in the above-entitled proceeding, finding that the Respondent had unlawfully interrogated one employee but that it had not engaged in the other unfair labor practices alleged 4n the complaint and recommending that the complaint herein be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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 the complaint herein be, and it hereby is, dismissed in its entirety. ' The record discloses Respondent's principal office and place of business is located, and the hearing in this case was held, at San Antonio, Texas The Trial Examiner's Decision is hereby corrected accordingly. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HORACE A. RUCKEL, Trial Examiner: This case comes before me upon an unfair labor practice complaint issued on July 27, 1966, by the General Counsel of the National Labor Relations Board, acting through its Regional i At the conclusion of the General Counsel 's case he moved to dismiss certain other allegations of 8(a)(1) violations This was granted by the Trial Examiner Director for Region 23 (Houston, Texas), against Finesilver Manufacturing Company, herein called Respondent. The complaint is based upon an amended charge filed on July 18, 1966, by Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union. The complaint alleges that Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act, by interrogating employees as to their union activities, and on or about March 2, 1966, discharged Isabel Valle because of her support of the Union. These activities are said to constitute unfair labor practices within the meaning of Section 8(a)(1)' and (3) of the Act. Pursuant to notice, a hearing was held before me, at Houston, Texas, on November 8, 1966, in which the parties participated. At its conclusion the parties waived oral argument, and subsequently the General Counsel and Respondent filed timely briefs. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Texas corporation having its principal office and place of business at Houston, Texas, where it is engaged in the manufacture of men's clothing. During the 12 months preceeding the issuance of the complaint (a representative period) Respondent manufactured, sold, and shipped products valued in excess of $50,000 from its San Antonio plant directly to States other than the State of Texas. During the events herein complained of, Respondent employed about 700 employees. The complaint alleges, and Respondent's answer does not deny, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization admitting employees of Respondent to membership. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Discharge of Isabel Valle Valle worked periodically for Respondent from 1952 to 1960, as a single-needle machine operator. Her last and longest period of employment was from May 6, 1964, to January 4, 1966. She became interested in the Union which, on September 22, 1965, sent her name to Respondent as a member of its organizing committee. Around the same date Respondent received the names of approximately 60 other employees as members of the committee. On January 5, 1966, Valle did not feel well and did not report for work. She informed Vora Clayton, personnel manager, of this on the telephone on January 6. A day or so later she was injured by a fall in her home. On January 9 she wrote Respondent reporting the accident and said that 165 NLRB No. 93 FINESILVER MANUFACTURING COMPANY she would be unable to come to work. Respondent had no further word from her until March 2 when she showed up at the plant , gave Clayton a doctor's statement that she was able to resume work, and applied for work along with several other applicants. None was hired. The testimony of Valle is that Clayton's secretary told her that she was laid off. Clayton testified that she told Valle and the other applicants simply that there was no work that day. I find the point immaterial. On the following day Valle applied for unemployment compensation and was never thereafter called for work by Respondent. Respondent's defense to its failure to put Valle to work when she applied on March 2, 2 months after she last performed work, was her record of absences and tardinesses during the preceding year. It is not disputed, and I find, that during 249 working days in 1965, she failed to show up for work on 80 days, and on the days she did work she punched in after 8 a.m., the time when employees are supposed to be at their machines, on 41 days, and on 15 other days she punched in at 8 o'clock. In brief, Valle was late getting to her machine a total of 57 days. She admitted that Hertzel Finesilver, Respondent's vice president, spoke to her at least twice in November or December 1965, about being late and absent too often, and warned her that she would be discharged if this continued. Taylor, a supervisor, spoke to her once to the same effect. During the previous July and August, still according to Valle's own testimony, Taylor and Tersa Lott, another supervisor, spoke to her about her tardiness. The credited, undisputed testimony of Clayton, personnel manager, is that during 1965 she spoke to Valle at least 20 times about being late for work. Her further undisputed and credited testimony is that Valle, for the previous year, had the worst attendance record of any employee in the plant. During Valle's absence from January 4, 1966, to the following March 2 when she reported again for work, a period during which Respondent had no word from her after her letter of January 9, Finesilver, Taylor, and Barnes, Respondent's paymaster, in consultation decided that Valle was no longer "employable" by Respondent. Conclusions Valle was no more active in the Union than any other of the approximately 60 employees, including Ayala, who, the Union advised Respondent, constituted its organizing committee. The record, in fact, reflects no individual activity whatever, aside from the fact of committee membership. Nor was she at any time spoken to or 677 interrogated by management concerning the Union or her interest in it, as was Ayala whose interrogation by President Finesilver is hereinafter related, but whom Respondent continued to employ. This, coupled with Valle's bad record of absenteeism and lateness for work, leads me to conclude that Respondent discharged her for legitimate business reasons and not because of her union membership. B. Interference, Restraint, and Coercion Janie Ayala, a machine operator who had been 19 years in Respondent's employ, suffered a rupture in March 1966, and was absent from work until July 11. Like Valle, her name was 1 of the approximately 60 sent Respondent by the Union as a member of its negotiating committee. When Ayala returned to the plant she was interviewed by Mervin Finesilver, Respondent's president, who, after inquiring how long she had been employed, asked her how it had happened that she had signed up for the Union and if many girls went to the meetings. Ayala countered by inviting him to attend a meeting with her, and Finesilver responded by putting her back to work. This conversation was the only instance of alleged interference, restraint, and coercion in violation of Section 8(a)(1) of the Act as to which any evidence was adduced. While I find Finesilver's asking Ayala if many girls went to union meetings to be technically in violation of Section 8(a)(1) of the Act, I find, because of its isolated nature, that it would not serve the purposes of the Act to issue an order recommending that it cease and desist therefrom. CONCLUSIONS OF LAW 1. The operations of Respondent occur in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Clothing Workers of America, AFL-CIO , is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent , by asking an employee if many employees attended union meetings , violated Section 8(a)(1) of the Act. In view of the isolated nature of this violation , however, I shall not recommend that any Order issue with respect to it. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint herein be dismissed. 299-352 0-70-44