Valley Cabinet and Manufacturing, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Valley Cabinet -and Manufacturing, Inc. -and Chauf- feurs,' T eamsters and Helpers ' Local 150, Interna- tion'al- Brotherhood of Teamsters,` Chauffeurs, Warehousemen- "& -Helpers of America.' Cases 20-CA-6O44 an'd 20-CA-6122 '- August 16, 1971 DECISION AND, ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 4, 1971, Trial Exami°ner`Stanley' Gilbert issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the alleged unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions and a support- ing brief and the Respondent file a reply 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 proceeding 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 briefs, and the entire record in this proceeding, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. ORDER and in Case.20-CA-61=22.on,May 26, l970, the- consolidat- ed complaint herein was ,issued on August 27,1970. Thee complaint alleges that Valley Cabinet Manufactur- ing, Inc., hereinafter referred to as', the Company or the Respondent, violated Section' 8(A)(3)'and`(1)of the Act by discharging Robert Fosteron=April 14, 1970, and James ^R. Levy" on May 12, 1970. Respondent, by its answer, denies that theaforementioned ` dischar`ges"Were -violative ' of the Act as alleged in the complaint. 'Pursuant to notice, a hearing was held in 'Sacramento, California, on'November 5,; 1970,' before me.,Appearances' were entered on behalf (if-the General Counsel and Respondent, but no jappearance ' was entered oa behalf of the Charging Party. Briefs were received from General Counsel and the Respondent within the'"time' designated -therefor. Upon the entire record2 in this proceeding and my observation of the witnesses as they testified , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY At all times material herein, Respondent, a California corporation with a place of business at North Highlands, California, has been engaged in the business of manufac- turing cabinets. During the calendar year preceding the issuance of the complaint, Respondent, in the course and conduct of its business operations, purchased lumber valued in excess of $50,000 from suppliers in the State of California who obtained said lumber directly from sources outside the State of California. At all times material herein, Respondent has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 1 The Trial Examiner's inadvertent factual error in his findings to the effect that Davis notified Foster that Millman had requested his discharge and that he was terminated in the afternoon of "April 24" is hereby corrected to read "April 14." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE STANLEY GILBERT, Trial Examiner : Based on a charge filed by Chauffeurs, Teamsters and Helpers Local 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, hereinafter referred to as the Teamsters, in Case 20-CA-6044 on April 22, 1970, 3 Although his name is spelled "Levi" in the complaint, it appears from the transcript of the hearing that the name is spelled as above indicated. II. THE LABOR ORGANIZATIONS INVOLVED At all times material herein, the Teamsters has been a labor organization within the meaning of Section 2(5) of the Act. At all times material herein, Millmen's Local # 1618, affiliated with the Sacramento Area District Council of Carpenters, chartered by the United Brotherhood of Carpenters and Joiners of America, hereinafter referred to as the Millmen's, has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The two principal issues involved in this proceeding are whether the discharge of Foster on April 14,1970, and the discharge of Levy on May 12, 1970, violated Section 8(a)(3) and (1) of the Act. No other allegations of violations of the Act are set forth in the complaint, and in his brief the General Counsel does not contend that Respondent committed any other unfair labor practices. 2 General Counsel filed a motion to correct the transcript in certain particulars. Said motion is unopposed and is hereby granted. 192 NLRB No. 94 VALLEY CABINET AND MFG., INC. 667 ..A. The Discharge of Foster As above stated, Foster was discharged on April 14, _1970. He- had been employed by Respondent for approximately 14 months prior " to, his -discharge. It appears from his uncontradicted and credited testimony that 80 percent of his working time was spent in delivering cabinets by truck to Respondent's customers, and in loading and unloading the trucks. It also appears that on some :occasions he repaired cabinets which were damaged in transit. It further appears that the remaining 20 percent of his time was spent in doing odd jobs in Respondent's warehouse. It is undisputed that on March 23, 1970, he and Don Silva, the only other employee primarily engaged, at that time, in delivering cabinets, 3 signed authorization cards for the Teamsters. On April,9.,: 1970, the Teamsters filed a petition,in Case 20-RC-9295-seeking to represent a unit "of truck drivers" of Respondent which apparently would have been comprised of Foster and Silva. On April; 7, 1970, the Teamsters sent -4 telegram to Respondent which stated that it had been authorized -by A majority- of the drivers to represent them for -bargaining purposes, and requested a meeting with Respondent. General Counsel, contends that Foster was ;discharged because, of his-interest in; having theTeamsters represent him. Respondent, contends that he was discharged at the request of the Millnren's pursuant, to a valid union-security clause in, its collective-bargaining agreement with Respon- dent. Foster testifiedl. to a_conversation hey-had with, Robert Davis, president of Respondent, , on or about March 25, 1970, His testimony with, respect, to, said conversation, which wassuncontradictedkand is credited, is as follows: ,T[m Warless: I just asked him about the Teamsters and he said, "I ,don't want you to join .the Teamsters,. I want you to join the Millmen's." That was it. He walked off and didn'ttalk to me too much. Foster testified tox asecond conversation, on or, about April 7, _1970, with, Davis which was in the presence of a fellow employee, Stanley Dolce, and, in part, in the presence of Silva. His,,testimony with respect to the conversation is uncontradcted,,and„is-credited.It., appears from his said testimony that Davis approached him with the aforemen- tioned telegram ,sent, by the Teamsters to the Respondent,, and thatDavis' asked him about it., lie further testified as follows to the, ensuing;conversation: I explained to him-Don" Silva and I had gone down and signed the cardforthe,Teamsters. He told me if you were goiiiggto- join the Teamsters, I.cannotuseyou, and, -Don Silva walked up after-that, and then he said he would give us the two, hundred dollars for the Millmen's and 'we would have to give IOU's so the other guys wouldn't get upset about giving us money. S lva`'s testimony corroborates that of Foster that Davis offered fo 'loaxi them the. $200' required to join the Millmen's, and added that _Davis- said that' "in a year or so he'll just `tear= it [the. IOU]' up'"It'appears that Foster and Silva indicated their willingness to-accept his offer at that, time. 'Dolce also testified` to:the incident and his testimony, 3 Silva's uncontradicted'testimony is credited that he spent 75 percent of his time delivering cabinets. was substantially corroborative of-that of Foster and-Silva. Davis was not questioned about the incident, but didtestify that he offered a number of the employees a loan of the $200 required to join the Millmen's,,-,because<he "didn't want to lose them." Foster further testified without contradiction ,and his testimonyis credited that about2 days later, Davis told him ... if I was going to join the Teamsters, it would cost him more money, therefore, he couldn't compete, with the other cabinet companies." - On April 14, 1970, some hours ,.prior to Foster's termination, there was a meeting in Davis' office at,which Foster, Silva,, Davis, and Anthony Perna, a representative of the Millmen's,,were present. ,Foster tes'tified,as.follows to what occurred at saidfmeeting: A. Well, the Millmen, Mr. Perna, he told us- that we would have, to join, the Millmen's and if we didn't, we would be terminated, and I told him that Don Silva-and I went down and signed for 'the Teamsters because we were truck drivers and figured.okay and then out of nowhere, Robert Davis asked, us about . if ,we ,repair cabinets out .on the job, it they were broken when we deliver. I answered no; if its a door that-was broken, ;we brought back the measurements. Q. Did you . make 'any repairs when you: made deliveries? A, Not very often. Q. , Okay„anything else saidin that conversation? A. I just told, him I'dd have to go talk to the Teamster; Union. _ Q. ` Who is Tony Santos? A. He is the Teamsters Representative. Q. What did you say about .this? A. I explained to. Mr. Davis and Mr; Perna that I would have to go down ai id, talk to, him first because 1 signed up for the Teamsters^Don Silva andI signed up for the'Teamsters. Silva, Davis, and Perna,testified to the incident and their testimony, consistent with that of .Foster, is that Perna stated that Foster and Silva would have, to joinMillinen's or Millmen's would request their discharge. It is undisputed that, about 3.;30 in the afternoonof April 24, Davis notified Foster that Millmen''s had, requested his discharge and that he was terminated. On tlie'other hand; it appears that, Silva agreed-to accept the loan, of , $200, 'used the money to join the Mi linen's, and remaine in the employ of Respondent. According to the undisputed and credited testimony of Davis, he started in business in`1957 and was A incorporated in 1960; the Company signed its first agreement with the Millmen's about '1960; and in 1966 it` again .'s } igned a collective-bargaining agreement with the M llmen's which is, by its terms, due to expire in July 1971. Said agreement contains the following provision: UNION MEMBERSHIP SECTION 1: Only members in good standing in the Union shall be retained in employment. For the purposes of this Section "members in good standing" shall be defined to mean employee members in the P r 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unibn who tender the periodic dues and initiation fees uniformly required as a condition - of acquiring or retaining ;membership. Non-members of the Union hired by the• 'Employer must complete membership affiliation on or immediately following the expiration, of thirty continuous or accumulative days of employment, and the` Union agrees to accept said non.members into membership on the same terms and conditions generally applicable to `other members. Upon, written notice from the Union of failure on the part of any individual to complete membership in the Union as above required, or of `failure to continue payment of 'dues to the Union, the employer shall, within seven (7) days of such notice discharge said employee. ' Jurisdiction of work properly identified under the rules of the , Building Trades Department of the American Federation of Labor as the jurisdiction of Millmen's Local # 1618 shall be performed under the provisions of this contract and the members of the Union classified thereunder. Perna testified as follows -(which testimony is uncontrad- icted and credited) that: the became a business representa- tive for the District Council 'of Carpenters in August 1969; the Millmen's is one of, the local unions within the jurisdiction of the District Council; he was charged, commencing in August 1969, with the responsibility of policing the collective-bargaining agreement between Millmen's and Respondent untilAugust 1970; and, about December 1969, he became aware ` of the fact that the aforesaid collective-bargaining agreement '"was notbeing lived up to." Davis credibly testified that in January, 1970, four representatives of the Millmen's, including Perna, came to his place `of business and informed him that some of his employees were not in Millmen's and that all of them "had to belong to the 'Union" under the collective-bargaining agreement (which had been executed, as aforesaid, in 1966). He also credibly '` testified that he was informed by the Millmen's representatives that he had to pay "health and welfare" on alemployees whether they were members of the Millmen's or not. It appears that he protested the requirement' that he pay for nonmembers., According to Perm's credited'testimony, Davis agreed to their demands. It appears, that Davis did not immediately litre up to his agreement to comply with their demands; as is revealed by his following credited testimony: Q. (By Mr. Hubbert) Now, you have indicated you had a meeting in March with the three gentlemen from the Millmen's or carpenter's union? TRiu. Exx: What date in March, do you recall? THE Wfinss: About the first part of March, I don't recall exactly the dates. Q. (By Mr. Hubbert) And at this meeting, did you discuss the same matters you discussed in your earlier-- meeting? - A. Yes. Q. What were you informed by the representatives of the Millmen's union? A. I was given thirty days in which to have all my men signed in to the union or they were going to shut me down, and they called one of my biggest contractors and told them if I did not come in line, they would close down their job sites., Q , Did you ,learn ofthis from them at .that meeting or :did you learn this from your customer? A. Pardon? - Q. How did you become aware? A. My customer called me'up-- Q. What customer was that? A. GeorgeMcKeown. Q. What percentage of ,your business do you, do with Mr. McKeown? A. Approximately seventy-five percent. Q.,- And what was his statement to you relating to this problem? A. They said I had refused to- Q. What did Mr. McKeown or his representative tell you?, A. The union said I had refused to-go along with -them' and I had better go along with them or they, would have to get somebody else to do theirwork. Q. McKeown said-he'd.haveto get somebody else to do his work? A. Otherwise they would shut his jobs down unless I agreed to pay the back health and welfare and get all the men into the union. I had signed a bargaining agreement to this effect; I was bound by it. It appears that, even after the-warning,froin, Respondent's customer and the meeting in March with the representa- tives of the Millmen's, Respondent dragged its heels in fully complying with ,the Millmen's demands. According to the credited testimony of Davis, it wasn't until the latter part of April or first of May that he paid-health addwelfare'for all of his employees, who were nonmembers of Millmen's (including Foster) for the months of January, February, and March. It appears, from the testimony of Perna , that prior to April 14 the Millmen's made some progress' in requiring employees of Respondent to obtain membership. Accord- ing to his testimony -(which is uncontradicted',"'and is, therefore, credited) as of April 14 Foster and Silva were the only employees who were not members, on permit, or had not applied for membership. It also appears from Davis' credited 'testimony that he advanced the necessary, $2,00 to several employees sothat they could-Join the ' Milliner's., Perna credibly testified that he had trouble finding Foster and Silva when he went' to Respondent's place of business. Foster admitted that when the Milliner's representatives came to Respondent's promises he and others who were not members of- Millmen s hid from then: Foster , further admitted that it was his , understanding- that`he had,to join the Milliner's, that starting a `t the first df the year (1970) Millmen's stepped up the enforcement of its contract, and that one of the reasons he did not join the MilunenFs was because of 'the $200 iinitiation fee. On April 14, Davis called Perna and told him that Foster and Silva "were not complying withthe contract: ' Perna then prepared a letter addressed to Respondent requesting their discharge, brought the letter to Respondent's' place of business and, as indicated hereinabove,,met with Davis, Foster, and Silva at which time he stated that Foster and VALLEY CABINET AND MFG., INC. Silva either join the Millmen's or their discharges would be requested. As above stated, ` some hours later Foster ;was discharged and Silva accepted the loan from Davis of $200 to join the Millmen's and remained in Respondent's employ. Apparently General Counsel contends that Foster and Silva, as drivers, were not ' covered ' by the Millmen's contract and consequently were not subject to the union- security clause contained therein . General Counsel called as a witness Tony Santos,,, an organizer for the Teamsters, who testified that he went to the Union's offices on or about March 24 and told Perna that, not wishing "to step on anybody's toes," he wanted to talk' about the Teamsters representing the drivers at Respondent and that Perna said to him that if they are drivers, "take -them." However, he admitted on cross-examination that- someone else in the Millmen's office (with' apparently greater authority ` than Perna) immediately ,repudiated Perna's statement and insisted that "anybody= than delivers 'and hauls cabinets don't ` belong "to -the Teamsters, they belong to the Millmens." An examination of the contract and-of the constitution and-,bylaws of the United-Brotherhood of Carpenters and Joiners of America and its 'rules for subordinate bodies under its jurisdiction does not reveal any explicit language which would indicate that Foster and Silva were covered by the contract or were excluded from its coverage . It is noted that in the pay classifications of `the employees set forth in the contract there is no explicit provision for employees performing the functions .performed by Foster and Silva. However, it appears from credited testimony that the Millmen's, in the beginning of '1970, informed Respondent that it considered that all of its employees were covered under the contract ("had to belong" to the Millmen's) and that Respondent agreed thereto. Consequently, it is concluded that Foster and Silva - were covered under the 1966 contract, as it was either clarified or modified at the beginning of 1970. While it appears that Respondent did not wholeheartedly cooperate with the Millmen's and that its cooperation with respect to Foster and Silva was stimulated by learning that they had signed authorization cards for the Teamsters and by the Teamsters filing of a petition and making a demand for recognition, nevertheless it does not appear appropriate to find that the discharge of Foster was unlawful. Since it has been found that Foster and Silva were covered by the 1966 agreement, at least as early as January 1970, and were, therefore, subject to the union-security clause, it follows that Davis was required to comply with the Union's request that Foster be discharged for failure to join the Millmen's. It is well established that an employer may without violating the Act, upon a union 's demand, discharge any employee who refuses to become a member of the union as required by a valid union-security clause. There is no contention that the union security clause contained in the Millmen's contract was invalid and there is no basis for finding it to be invalid. The fact that Respondent preferred having the Millmen's represent Foster and Silva rather than the Teamsters and that Davis attempted to force Foster and Silva to join the Millmen's by notifying the Millmen's of their nonmember- 669 ship status did not relieve Respondent of its contractual responsibility under the union-security clause. Respondent was faced with the threat of losing the business of its ^ major customer should it have a dispute with the Millmen's. It is inferred that Davis was impelled to tell Foster that he wanted him to join the °Millmen's and not the Teamsters and to, notify the- Millmen's of the status of Foster and Silva, not only by -reason of his opposition'to theirbeing represented by the Teamsters, but also in order to avoid a dispute with the Millmen's (over their representation by the Teamsters) which -might have resulted in- :the loss of Respondent's biggest customer. In any event, Respondent was under a lawful contractual obligation - to discharge, Foster, ,upon the Millmen's demand, in accordance with .the union-security clause, whatever its reasons for complying therewith. There is no contention that the Millmen's had conceded that it did not represent Foster and Silva-,or that it had abandoned representation of them; on the, contrary, the record discloses that it insisted that they were covered under` the contract. Also, there is no contention, or basis for finding, that a unit of all Respondent's employees,, including Foster and Silva, was an inappropriate bargaining unit. It is inferred -that had Foster agreed to join the Millmen's, as Silva did, he too would have remained in the employ of Respondent despite his having signedan authorization card for the Teamsters. It is concluded that the General Counsel has .failed to prove by a preponderance of the evidence,the allegation that Respondent violated Section 8(a)(3) and (1) of the Act by its discharge of Foster. B. The Discharge of Levy Levy, who was employed by Respondent =for approxi- mately a month as a warehouseman, was terminated on Tuesday, May 12, 1970. Levy , had -been absent the day preceding his discharge, apparently for medical reasons. General Counsel contends that he was terminated because of his interest in the Teamsters. The Respondent contends that he was discharged for excessive absences. Levy's testimony, which was uncontradicted and is credited, is that during the period of his employment there were discussions in the warehouse among the warehouse- men about unions "such as Millmen's and Teamsters"; there was a meeting arranged for employees with a representative of the Teamsters on the night of May 8; he did not attend the meeting; and he signed an authorization card for the Teamsters on the night of May 11. His testimony (with respect to his termination by Fred Davis, Respondent's vice president), which is uncontradicted and is credited, is as follows: A. Well, I was, I came to-let's see, well Tuesday, I came to work. This is after I signed the card on Monday evening, the Tuesday morning I was starting to load up cabinets on a flatbed Chevy truck, and Fred Davis, Mr. Fred Davis walked up to me and said, "You're just the man I want to see." Q. Was anyone present when he spoke to you? A. A man by the name of Will had walked by or was around by Mr. Davis, I wasn't paying that much attention to who was around. Mr. Davis, Fred Davis, 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said, `,`You're just the man I want to see ." I said, "Yes, sir." He ,said, "What's going on?-" And.I said, "What do you mean, sir? He said, "Don't.play dumb with me„ what's happening over there in the warehouse ?" I says, "Do you mean unions?" I said, "Well, if you mean about me joining the union, ;well, you yourself, sir,,you told me not to join a union because they have had such 're'buttal between different unions and the warehouse, ld they don't know actually exactly which one for.us to join, ^ so, I was just issued a permit and I was not considered in a union at all," and he says, "Well, come on, what unions have been mentioned?", and I said, "The Millmen's and the Teamsters. He shook his head and says, "You're probably right," and made a gesture like follow me, and I went to his office, he made out a check, nothing elsewas said. ' With respect-to Levy's absences , the record discloses that during - the period (1, month) of his employment with Respondent, Levy was absent approximately one-third of, the time: According to Levy's uncontradictedand credited testimony, he obtained' permission for all- his absences and ° was never reprimanded for his poor attendance. General Counsel ' bases his argument that Respondent had knowledge of Levy's interest in the Teamsters on Fred Davis' conversation with Levy which 'is above quoted. The` Trial Examiner is of the opinion that saidtestimony does not afford a basis for a finding that Respondent ; had knowledge ' or a suspicion, of Levy's 'interest in' the Teamsters. On the, contrary, it4,would appear from Levy's' testimony that he impliedly told Fred Davis that he, was following his advice "not to join a union." Robert Davis testified that when he discovered Levy , was absent on Monday, May 11 , he told 'his son, Fred, to discharge Levy. He admitted, however, that he did not check to see whether Levy had obtained permission to'be absent. In view of the circumstances, particularly that there is no basis for a; ,finding that Respondent had knowledge of Levy's interest in the Teamsters , and that Levy had been, absent approximately one-third .of the_time during„ his period of employment, it appea s inappropriate to find that the, _discharge was discriminatorily , motivated and'that, Respondent's reason therefor was merely a pretext. Consequently, it i$ concluded that the General Counsel has failed,to prove by a preponderance of the evidence the allegation inti,the complaint; that the Respondent violated Section 8(ax3) and (1) of the Act'by,discharging Levy,,. > Tpon the basis of the foregoing findings of fact and upon` the entire record in the case, I mike the following: CoNCLusIONs OF LAW 1. At all times material herein, Respondent has been. an employer engaged in commerce and in operations affecting commerce within the in eaningof Section 2(2), (6), and. (7)^ of the Act. 2. The Teamsters, and the_ Millmen's, at all times- material herein, were labor -or apmtions, , thin the meaning of Section 2(5) of the Act. 3. General Counsel has ,failed to prove by a preponder- ance of the evidence 'the allegation in the, complaint that Respondent violated.Section 8(aX3) and (1) of the Act by its discharge of Foster on,April 14,1970. 4. General Counsel has failed 'to prove by , a,preponder- ance of the evidence the allegation in the complaint ,that" Respondent violated Section 8(a)(3)yand (l) of'the Act by its discharge of Levy 'on May 12, 1970. Upon the foregoing ( indm ' fact, conclusions of law, and 'the entire record, and, pu t to oSection 1_0(c) of the Act, I hereby issue the following recommended:' ORDER The complaint herein should be ,, and is hereby, dismissed in its entirety.