Howard Mfg., Co.

HOWARD MFG. CO. Howard Manufacturing Co., Inc. and International Ladies' Garment Workers Union, AFL-CIO. Case 26-CA-6036 August 30, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on March 4, 1976, and amended on February 8, 1977, by the International Ladies' Garment Workers Union, AFL-CIO, herein called the Union, and duly served on Howard Manufacturing Co., Inc., herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 26, issued a complaint on February 8, 1977, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(4) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended.' Copies of the charge, complaint, and notice of hearing were duly served on the parties to the proceeding. With respect to the unfair labor practice, the complaint alleges that the Respondent refused to pay witness fees and mileage allowances to seven striker- discriminatees whom Respondent caused to attend the hearing in Case 26-CA-5802 pursuant to subpoenas ad teslificandum. On February 16, 1977, the Respondent filed an answer to the complaint in which it admitted most of the factual allegations, denied the conclusory allega- tions, submitted additional data, alleged affirmative defenses with respect to Verlene Davis and Willie Hinton, and requested that the complaint be dis- missed in its entirety. Thereafter, on March 22, 1977, the General Counsel filed directly with the Board a motion to strike certain portions of Respondent's answer and Motion for Summary Judgment, with exhibits at- tached. He submits that there are no issues presented by the pleadings which require a hearing. Subse- quently, on March 29, 1977, the Board issued an order transferring the proceeding to the Board and a I The Regional Director initially sought relief in the form of a motion to the Board in Case 26CA-5802, of which the instant case is a direct outgrowth. The Board, in Howard Manufacturing Co., Inc., 227 NLRB 1858, fn. I (1977). denied the motion as being inappropriately raised in that proceeding. 2 We agree with the Respondent that the portions of the answer to which the General Counsel objected were in response to allegations in the complaint. Accordingly, we hereby deny the motion to strike those portions of the answer. :' Davis and Hinton were no longer employed by the Respondent at the time of the hearing. The Respondent asserts as an affirmative defense that the provisions of Sec. 8(aX I) and (4) therefore are inapplicable to them. 231 NLRB No. 87 Notice To Show Cause why the General Counsel's motion should not be granted. In response, the Respondent filed an opposition to the General Counsel's motion to strike and a Cross-Motion for Summary Judgment, in which the Respondent agreed that no dispute exists as to material facts, opposed the motion to strike because those portions of the answer are responsive to allegations in the complaint, and requested summary judgment against the General Counsel. 2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment As stated above, the material facts are not disputed. In 1975, the Union filed charges which resulted in the issuance of a complaint alleging, inter alia, that the Respondent violated Section 8(a)(1) by disciplining certain employees because they had engaged in the protected concerted activity of going on strike. In preparation for the hearing in that case, Respondent's attorney caused to be served on each of the 12 alleged striker-discriminatees and a union district manager a subpoena ad testificandum. At the time of delivery of the subpenas, the Respondent's representative failed to tender either witness fees or mileage allowance for 1 day's attendance at the hearing. The General Counsel issued subpoenas ad testificandum to 5 of the 12 striker-discriminatees and these 5 were paid the witness fees and mileage allowances due them. The subpenas were delivered on or about January 19, 1976, and directed attendance at the administra- tive hearing on January 26, 1976. None of the witnesses petitioned for revocation of the subpenas either prior to or at the hearing. Striker-discrimina- tees Carolyn Jones, Sylvia Belle Lamb, Marsha Price, Glenda Reed, and James Reeder attended each day of the 4-day hearing. Striker-discriminatees Verlene Davis and Willie Hinton 3 and Union District Manager Arthur Martin attended I day of the hearing. Of these eight subpenaed persons, only two, However, it is well settled that discrimination against nonprotected persons for testifying or otherwise becoming involved in Board proceedings violates the Act as it tends to impair the effectiveness of the protections afforded to covered employees. See, e.g., Better Monkey Grip Company, 115 NLRB 1170 (1956), enfd. 243 F.2d 836 (C.A. 5, 1957). The Respondent additionally asserted that as the amended charge filed on February 8, 1977, included Davis and Hinton for the first time. the charges with respect to them are time-barred b) the provisions of Sec. 10(b). However, as the amended charge is based on the identical factual situation and simply adds the names of two discnminatees, it need not independently satisfy the 6-month limitation. N.LR.B v. Gaonor News Companyr Inc.. 197 F.2d 719 (C.A. 2, 1952). 731 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin and Hinton, were called by the Respondent to testify. By letter to the Respondent's attorney dated February 2, 1976, the Union's counsel demanded the payment of witness fees and mileage allowances to the striker-discriminatees and to District Manager Martin. A letter in response dated February 12, 1976, stated that the Respondent would pay witness fees and mileage allowances to Martin but denied any obligation to pay the seven striker-discriminatees. To date, the Respondent has refused to pay the seven striker-discriminatees their witness fees and mileage allowances. The Respondent argues that it need not pay witness fees and mileage allowances to the seven striker-discriminatees because they are parties with a financial interest in the outcome of the case. In support of this theory, the Respondent cites, inter alia, the lack of legal authority supporting the claim for payment and submits that the remedy for improperly served subpenas is a timely motion to quash, not a separate action for collection of fees. We cannot agree with the Respondent's view of the case. Although alleged discriminatees are granted some of the rights of parties, they are parties only in a limited sense. They cannot prosecute their case on their own; only the General Counsel can issue a complaint. The General Counsel is responsible for prosecuting the case and can in fact settle the case without the consent of the alleged discriminatees. Because of these characteristics of administrative hearings before the Board, the court cases cited by the Respondent in which parties were found not to be entitled to witness fees are inapposite. In the instant case, the rights of the seven striker- discriminatees could have been adjudicated in their absence. It is impossible now to determine whether they would have attended voluntarily, absent the subpenas. The Respondent could, and did, compel their attendance by issuing subpenas. In so doing, the Respondent may have caused them to lose pay because of their absence from work.4 By refusing now to pay the mandated witness fees and mileage allowances, the Respondent is able to economically disadvantage the striker-discriminatees for appearing at the Board's hearing pursuant to subpenas issued at its request. The Respondent's assertion that a motion to quash is the only available remedy, for which it cites no authority, misses the point. We are not here concerned with the issue of whether a quasicontrac- tual action would lie for collection of witness fees. 'There is nothing in the record indicating that the five striker- discriminatees on Respondent's payroll were paid for the days they missed work while attending the hearing. 5 N L.R. B. v. Robert Scrivener, d/b/a AA Electric Company, 405 U.S. 117 (1972). Rather, we are faced with the question of whether the Respondent's refusal to pay witness fees to alleged discriminatees violates the Act and impedes the Board's processes. In light of the broad scope of the protection afforded by Section 8(a)(4), 5 we find that it does, and, accordingly, we shall grant the General Counsel's Motion for Summary Judgment. 6 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent Howard Manufacturing Co., Inc., is a corporation doing business in the State of Arkansas, with an office and place of business in Nashville, Arkansas, where it is engaged in the manufacture and distribution of men's robes. During the past 12 months, a representative period, the Respondent has, in the course and conduct of its business operations, purchased and received at its Nashville, Arkansas, location products valued in excess of $50,000 directly from points located outside the State of Arkansas, and during the same period of time the Respondent has sold and shipped from its Nashville, Arkansas, location products valued in excess of $50,000 directly to points located outside the State of Arkansas. We find, on the basis of the foregoing, that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Ladies' Garment Workers Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE Commencing on or about February 12, 1976, and continuing to date, the Respondent has failed and refused, and continues to fail and refuse, to pay to Carolyn Jones, Sylvia Belle Lamb, Marsha Price, Glenda Reed, James Reeder, Verlene Davis, and Willie Hinton, whom Respondent's representative caused to be subpenaed, their respective witness fees and mileage allowances. Accordingly, we find that since February 12, 1976, the Respondent has discriminated, and is discriminating, against employ- ees for filing of charges or giving testimony under the 6 The Respondent's Cross-Motion for Summary Judgment is hereby denied. 732 HOWARD MFG. CO. Act and has restrained and coerced, and is restrain- ing and coercing, its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby did engage in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(4) and (1) of the Act. 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 its opera- tions 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 com- merce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (4) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that the Respondent violated the Act by refusing to pay witness fees and mileage allowances to the striker-discriminatees. We there- fore shall order the Respondent to pay to Carolyn Jones, Sylvia Belle Lamb, Marsha Price, Glenda Reed, and James Reeder witness fees for 4 days and mileage allowances for four round trips from their respective residences in Arkansas to Texarkana and to pay to Verlene Davis and Willie Hinton witness fees for I day and mileage allowances for one round trip from their respective residences in Arkansas to Texarkana in accordance with Section 102.32 of the Board's Rules and Regulations. Interest shall be computed as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corpora- tion. 7 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Respondent, Howard Manufacturing Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Ladies' Garment Workers Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the acts described in section III, above, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) and (4) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Howard Manufacturing Co, Inc., Nashville, Arkan- sas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to pay to Carolyn Jones, Sylvia Belle Lamb, Marsha Price, Glenda Reed, James Reeder, Verlene Davis, and Willie Hinton the witness fees and mileage allowances due them. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Pay to the above-named persons the witness fees and mileage allowances due them as set forth in the section of this Decision and Order entitled "The Remedy." (b) Post at its Nashville, Arkansas, plant copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's authorized representative, shall be posted by the 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 other material. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. I In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. " In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 733 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail and refuse to pay to Carolyn Jones, Sylvia Belle Lamb, Marsha Price, Glenda Reed, James Reeder, Verlene Davis, and Willie Hinton the witness fees and mileage allowances due them. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL pay to the above-named persons the witness fees and mileage allowances due them in accordance with Section 102.32 of the Board's Rules and Regulations. HOWARD MANUFACTURING Co., INC. 734