Hamlin-Overton Frame Co., Inc.

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hamlin-Overton Frame Co., Inc. and United Furni- ture Workers of America, AFL-CIO.Case 7-CA- 7621 August 25, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On February 16, 1970, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. 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 made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in this 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 Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Respondent, Hamlin-Overton Frame Co., Inc., South Haven, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U REEL, Trial Examiner: This case, heard at South Haven, Michigan, on January 8, 1970,' pursuant to a charge filed the preceding November 7, and a complaint issued November 21, presents questions as to whether Respondent, herein called the Company, deprived certain employees of their seniority and threatened to lay them off or discharge them because of their activities on behalf of the Charging Party, herein called the Furniture Workers, and because they had furnished affidavits in support of charges being investigated by the National Labor Relations Board. Upon the entire record,' and after due consideration of the briefs filed by General Counsel and by the Company, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATIONS INVOLVED The Company, a Michigan corporation engaged at South Haven in the manufacture of picture frames and related products, annually ships products valued in excess of $50,000, to points outside the State, and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Furniture Workers and the Wood- workers and Platers Union, herein called the Woodworkers, are labor organizations within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. Background On December 23, 1968, following an election pursuant to consent agreement, the Woodworkers became the certified bargaining representative of the Company's production and maintenance employees. On March 7, the Woodworkers and the Company entered into a collective-bargaining agree- ment The agreement provided in part that "Seniority shall be on a departmental basis ...." and contained grievance and arbitration provisions, as well as a union-security clause. Apparently, notwithstanding the certification of the Woodworkers, some employees continued to support what appears to be a rival labor organization, the Furniture Workers On March 6, the latter filed an unfair labor practice charge against the Company alleging discrimination against employees Susie Winfrey, her husband John Winfrey, Luvicie Meunier, and Nadine Foster for having supported the Furniture Workers. The Board's Regional Office investi- gated this charge and dismissed it on April 29 for want ' Except where otherwise indicated all other dates herein refer to the year 1969 2 (Certain inadvertent error, in the transcript have been noted and corrected ) 185 NLRB No. 7 HAMLIN-OVERTON FRAME CO of evidence that the Company's actions "were instituted for any reasons other than bona fide economic motivations." Meanwhile, on April 24, the Furniture Workers filed a charge against the Woodworkers alleging that the latter failed to file and process grievances on behalf of the Win- freys, Menumer, and Foster, because of their support of the Furniture Workers, and that this conduct violated the Woodworkers' duty of fair representation. An amendment to the charge, filed June 4, contained an additional allegation that the contract between the Woodworkers and the Compa- ny included an illegal union-security clause. Those charges likewise were investigated by the Board's Regional Office and culminated in a settlement agreement which the Wood- workers signed on June 10 and the Regional Director approved on June 23. The settlement agreement required the Woodworkers to post a notice (which was done on July 10) and to comply with the terms thereof. These included processing, if requested, the grievances of the Winfreys, Meunier, and Foster, and correcting the union- security clause in the contract to give persons employed at the time it became effective 30 days in which to join the Woodworkers. In the course of investigating the charges referred to above, the Board's agents interviewed and took affidavits from Susie Winfrey as well as from other persons. B. Interference, Restraint, and Coercion On Tuesday, June 10, Susie Winfrey, an employee in the filling department, told her union steward, Jean McCash, that she wanted to file a grievance. McCash promptly went to the plant superintendent, Marshall Corey, and brought him to where Winfrey was working, so that Winfrey could state her grievance. Winfrey told Corey that while she had been laid off for want of work other employees had been assigned to do steelwoohng work rightfully hers Corey angrily rejected the grievance, stating that he would put whomever he pleased to work, and he tore down the seniority card which had indicated Winfrey's seniority for steelwooling. At this time Corey also stated that he was going to combine the sanding and filling departments, and repeated that he would put whomever he pleased to do the steelwooling at that time. He also stated that when he joined the two departments the seniority of the employees "would go on as it was " The next day, June 11, Winfrey again discussed her grievance with Corey in McCash's presence. On this occasion Corey, after indicating that he would not call an employee in from layoff for a mere 2 or 3 hours' work a day, added that Winfrey was a troublemaker who kept running to the AFL-CIO and to the National Labor Relations Board, and that everything she had told the AFL-CIO and the Board (apparently referring to statements she had made in support of the charges against the Company and the Woodworkers) was nothing but lies. According to Win- frey's testimony, Corey stated that if she "went to them" he "was going to fire" her. McCash testified that Corey said Winfrey "should be fired for all the trouble that she caused." Corey, called as a witness by General Counsel, did not remember what he had said in this regard. During the interview Corey further stated that, union or no union, 85 he was "going to run that place the way it had been run for the last 25 years." I find that Corey's statement to Winfrey in the presence of McCash that he either "was going to" or "should" discharge her for giving information respecting her griev- ances to another union or to the Board constituted interfer- ence, restraint, or coercion of employees in the exercise of rights guaranteed in Section 7 of the Act, and violated Section 8(a)(1). C. Alleged Discrimination 1 The facts As already noted, Corey told Winfrey on June 10 of the Company's intention to merge or combine the filling department (which at that time consisted of only three employees-Winfrey, Foster, and Meunier) with the sanding department, which apparently had six or seven employees The record suggests that in the months preceding the events here involved there had been insufficient work in the filling department to keep the employees there occupied full time. On occasion the employees in that department had been moved temporarily to other tasks. After the merger or combination of the departments, Winfrey, accord- ing to her testimony, continued to perform the same duties she had before with "just a little more sanding, that's all." Asked whether the fill department still existed, she answered- "The table is still standing there . .. Nobody working there, just whenever there is fill work to be done, then is when we go over there and work." On June 10 the Company wrote the Woodworkers, as the bargaining representative, stating the Company's inten- tion "with Union approval and subject to Union recommen- dations, to consolidate" the departments in question. The letter stated, in accordance with what Corey had told Winfrey, "The seniority of the . . . employees will be according to date of hire," and concluded- "Please advise the Company of any action taken at your earliest conven- ience." Later on June 10 the Woodworkers held a union meeting to consider the Company's letter. According to the then vice president (soon thereafter president) of the Woodwork- ers, there was a good deal of "arguing and fighting" although no quorum was present. The issue was further complicated by the fact that the merger under the terms prosposed by the Company adversely affected employee Wilma Thomp- son, whose son was president of the Woodworkers. Mrs. Thompson had been hired in the sanding department in February 1968, and would be junior to Winfrey, Foster, and Meunier if their seniority in the merged department dated from their originial date of hire. The members present at the meeting (not a quorum) voted to accept the company proposal The next morning, June 11, Thompson resigned as presi- dent of the Woodworkers The new president promptly called a meeting of the "union committee" (consisting of herself, the secretary, and from one to three stewards) to discuss the Company's proposal. The committee took the view that under the Woodworkers' contract with the Company, which provided for "departmental" rather than 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "plant" seniority, "if they allow this letter, we would be going against our contract." On June 12 the committee sent the Company the following letter over the signature of the Woodworkers, by the acting secretary: The General Committee had a special meeting and rejected the letter. We feel there has been no provision made for the seniority for those effected [sic]. We must retain the senority [sic] rights. If you wish to discuss this more let us know. The next afternoon, June 13, the Company posted the following notice in the plant: Because of lack of work in the Filling Department it is necessary to combine the Filling Department work with the Sanding Department. The seniority of the Sanding Department will govern since that department survives. The employees from the discontinued department will be added to the bottom of the seniority list of the Sanding Department according to their present seniori- ty in the discontinued Filling Department. This is in accordance with our policy to attempt to keep everyone employed and to give the greatest possi- ble credit and preference to seniority. In connection with the Company's change of position, I credit the following testimony of Corey: Trial examiner: Mr. Corey, did you have anything to do with posting the notice on June 13? It says the people in the fill department will go to the bottom of the seniority list Witness: No, I did not. Trial examiner: Were you involved in the discussions which led to the change of positions? Witness- No, not at all. Trial examiner: When did you learn notwithstanding what you have said in that letter something different was going to be done about seniority? Witness: I was advised that the union offer did not agree with this, and later I saw the notice the day it was going to be posted. Trial examiner: Did you suggest the change be made? Witness: No. Trial examiner Were you consulted about making the change? Witness: No sir. Trial examiner: Did you know about it prior to the time that the company officials who have control made the change? Witness: Not prior to the time. I knew it at the time. When it was typed up I saw it after it was typed up. On June 24 the Company laid off three employees from the sanding department-Winfrey, Meunier, and Foster. Had the company policy stated in its letter of June 10 been followed, Mrs. Thompson would have been laid off instead of Winfrey. The latter was recalled to work August 7, missing approximately 1 month's work, as the entire plant was closed for 2 weeks in July. On July 5 Winfrey wrote the Woodworkers, complaining over her loss of senior- ity. The Woodworkers apparently declined to process this grievance because Winfrey had not first presented it orally, as the contract grievance procedure provided. 2. Concluding findings The complaint alleges that the Company reduced the seniority of Winfrey, Meunier, and Foster because of their activities in behalf of the Furniture Workers and because they had given affidavits to the Board in the investigation of the charges against the Company. This theory is not supported by a preponderance of the evidence. To be sure, Corey expressed his displeasure over Winfrey's resorting to the Furniture Workers and the Board. Nevertheless, at the very time he was so expressing himself, the Company proposed to the Woodworkers a merger plan under which Winfrey, Meunier, and Foster would have retained their seniority. The Company later changed its position and deprived them of seniority because of the objections raised by the Woodworkers, and not because of any animosity harbored by the Company .3 The record is clear that the protest of the Woodworkers' committee, which led to the change of policy was in no way sponsored, instigated, or influenced by the Company. It may be that the Woodworkers, although ostensibly relying on a construction of the contract, was in fact motivated by its resentment of the activities of Winfrey, Meunier, and Foster, or by the family relationship between the union president and one of the employees. If the Compa- ny in yielding to the Woodworkers knew or should have known that the latter acted for illegal reasons, this might well establish a violation by the Company. But this is not the theory on which the case was tried, and in any event has only suspicion, not evidence, to sustain it, for the Woodworkers' construction of the contract is at least arguable.' Suspicions may be further aroused by the Wood- workers' rejection on technical grounds of Winfrey's griev- ance But General Counsel could have sought to reopen the settlement agreement in the case against the Woodwork- ers had he found anything improper in the conduct of that union He elected instead to proceed solely against the Company, as to which on this aspect of the case he failed to sustain his burden of proof.' ' General Counsel finds the Union's letter of June 12 "confusing" in its reference to seniority The letter rather plainly rejects the Company's seniority proposal I am not concerned with whether the Company's original, or its later, construction of the contract insofar as it affects Winfrey's seniority is correct, but only with whether the Company changed its position because of Winfrey's protected activity The validity of the interpretation of the contract can be tested in another forum General Counsel suggests that the Woodworkers would not process a grievance directed at their own construction of the contract Winfrey, however, can assert a statutory right to fair representation, and may have a cause of action under the contract as a third party beneficiary ' General Counsel's complaint alleges that the Company reduced the seniority of Winfrey, Meunier, and Foster because the employees "Had engaged in activities on behalf of the [Furniture Workers] and given affidavit testimony to the Board in the investigation of Case No 7- CA-7208 " General Counsel states in his brief "Prior to June 9, or 10, 1969, the Employer had no reason to be hostile to Susie Winfrey True, Winfrey had given testimony in connection with Case No 7- CA-7208, filed by the United Furniture Workers of America, AFL- CIO, against the Respondent However, this case had been dismissed, and as far as the Employer knew on June 9 or 10, 1969, the matter was dead " Thus abandoning his original theory, General Counsel now argues that by filing her new grievance with Corey, Winfrey demonstrated that she "had not been subdued but was once again pressing for her HAMLIN-OVERTON FRAME CO. CONCLUSIONS OF LAW 1 The Company, by threatening an employee with repris- als for taking her complaints concerning conditions of employment to a labor union and for giving information to the Labor Board, engaged in an unfair labor practice affecting commerce withing the meaning of Section 8(a) (1) and Section 2(6) and (7) of the Act. 2. The Company has not engaged in the other unfair labor practices alleged in the complaint. THE REMEDY I shall recommend that the Company cease and desist from its unfair labor practice and that it post an appropriate notice Accordingly, upon the foregoing findings and conclusions, and upon the entire record in this proceeding, I recommend, pursuant to Section 10(c) of the Act, issuance of the following- ORDER' Respondent, Hamlin-Overton Frame Co., Inc., its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Threatening any employee with discharge or other reprisal for seeking the assistance of a labor organization or for making statements or otherwise giving information to representatives of the National Labor Relations Board. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its plant in South Haven, Michigan, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by it 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 Respondent to insure that said rights," and that since "the problem once again presented itself, the Respondent took action to insure its permanent correction " Passing over the hyperbole (a seniority change is scarcely a "permanent correc- tion"), I reject the new theory as supported by nothing more than faint suspicion I accept Corey's testimony that so far as he was aware the change in company policy was caused by the stated opposition of the Woodworkers to the original proposal for merging seniority In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 87 notices are not altered, defaced, or covered by any other material. (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.' In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " In the event that this recommended Order is 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 Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD AN AGENCY OF THE UNITED STATES GOVERNMENT WE WILL NOT threaten to discharge or otherwise discriminate against any employee for seeking the assistance of any labor organization, or for making statements or otherwise giving information to representatives of the National Labor Relations Board WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to form, join, or assist labor organizations. HAMLIN-OVERTON FRAME CO., INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michi- gan 48226, Telephone 313-226-3200.